Hurtt v. Fisher

at this term, delivered the opinion of the Court. That a trustee is answerable for money lost by his gross negligence, is a principle of law well established; and whether Hurtt has been guilty of such negligence as to make him answerable for the amount of the purchase money on the first sale, must depend upon the faets admitted in the answer.

It appears the will was proved in 1814, and that in August of the same year the lands in Kent county were sold by Hurtt to Salisbury. The terms of this sale, whether for cash, or on credit, are no where stated in the record. If it was for cash, it was the duty of the trustee, upon payment being refused, to have instituted legal process to enforce it; and if on credit, he ought, in a reasonable time after the sale, to have obtained from the purchaser, bond and security for the purchase money; and at all events, the possession of the land ought to have been retained by him until the necessary security was given. But we find in this case, that no security was ever obtained for the purchase money; and although the land was sold in 1814,. no attempt was made to enforce the payment of it by legal process, until some time in the year 1819, and yet the possession of the land was given up to Salisbury in January 1815'. This affords at least strong prima facie evidence of very gross neglect, and unless satisfactorily accounted for by the trustee, would make him liable for the money on the first sale. How does he attempt to avoid it? That Salisbury refused to. pay the money until the trustee gave him a deed, and that he could not do, without an application to the court of chancery,,

*95If a deed was necessary in this case, did the trustee use reasonable diligence to obtain authority to give it? He was informed in 1814 a deed was required by the purchaser, and that the money would be paid when a deed was executed; yet he never obtained a decree in chancery for this purpose, until the year 1818, about four years after the original purchase. If there were circumstances beyond his control to justify this delay, it was incumbent on him to have stated them in his defence; but in the absence of such allegations, which if they had existed, must have been in the knowledge of the trustee, the court have no right to presume them. If in a reasonable and proper time, the trustee had filed a bill in chancery to authorise him to give a deed, there can be no doubt that the chancellor, having all the proper parties before him, and there being no legal objection to the contrary, would have passed a decree to confirm the first sale; to authorise the trustee, upon the payment of the purchase money, to give a deed, and to order the money to be brought into court, to be applied, under the direction of the chancellor, according to the provisions of the will. But this was not the conduct of the trustee. Without any authority, (so far as this record speaks,) he again sold this land in 1823, and became himself, through his agent, the purchaser for seven dollars and twenty-five cents the acre, just one half of the original purchase money, and now holds and possesses the land, under that purchase. With this view of the case, the court must charge the trustee with grossly improper conduct, more especially as from the facts disclosed in the answer, there is strong ground to believe, if he had faithfully performed his trust, the original purchase money might have been saved. It is stated that Salisbury, at the time of the sale, was in good credit and circumstances, and if a deed had been tendered to him in a reasonable time, it is fairly to be presumed the purchase money would have been paid or secured to the trustee.

The next question presented to the court, in this case is, whether the purchase money arising irom the sale of this land in 1814 is to be considered as money, and would devolve upon James Fisher, whose wife died after the sale?

We feel no difficulty upon this part of the case. We con*96eur in opinion with the court below, that the land in Kent county devised by James Hurtt to be sold, and sold in 1814, is to be considered as money, and that Janies Fisher is entitled to the same portion of it, upon the death of his wife, as he would have been authorised to receive, had she been alive.

The general rule of law, that lands devised to be sold are thereby turned into money, and construed in equity as personal estate, is fully sustained, not only by the authorities cited by the counsel for the appellee, but by many others, were it necessary to resort to them. See Doughty vs. Bull, 2 P. Wms. 320. Lechmere vs. Earl of Carlisle, 3 P. Wms. 215. Best vs. Stamford, 1 Salk. 154. Maberly vs. Strode, 3 Ves. 450, 456. Trelawney vs. Booth, 2 Atk. 307. Craig vs. Leslie, et al. 3 Wheat. 563. Fisher’s wife dying after the sale, leaves no doubt of his right to recover.

DECREE AEEIEJtlEB.