The opinion of the court was delivered,

The proposition upon which the master rested this case may be true; that there is no rule in law or equity which forbids a mere tenant in common from purchasing an encumbrance on the common property, and thereunder selling the same and purchasing it for his exclusive benefit; provided he does it fairly and not behind the back of his co-tenant. But the cases discussed by the master and those cited in the argument show, that the proposition as thus stated occupies a very narrow field, when we come to ask the question, what is fair to a co-tenant, and what may be done openly and not behind his back. It is in this respect the master erred in his application of his own proposition to the facts of the case. The fact is conceded that Francis H. Westcott, a son of the defendant, bought the mortgages against the estate of John Hance, the testator, at the instance of his father, and of Mrs. Hance the life-tenant, and used his father’s funds chiefly in so doing, and so far as he used his own they were refunded to him by his father. It is asserted, that the purpose at the time was to prevent the enforcement of the mortgages against the property by the creditors, and not to force a sale. To this purpose there can be no objection. But it is to be noticed that at this time the trust still continued in Luther C. Edmunds, the trustee; that the estate of Mrs. Garretson, the plaintiff, had not vested in possession, and did not until a year and a half after the subsequent sale. John Hance had made provision in his will for the payment of these mortgages, by a mortgage of all or any *32part of the property by the trustee. Hence the question of value, which the master thought quite immaterial, was highly important. Instead of giving notice to Mrs. Garretson, whose estate was not yet in possession, to raise the money and pay off one-half of the mortgage-debt, it was Westcott’s duty to notify the trustee to make a loan under the power in the will. The mortgage was then but $2100 in amount, while the property was worth over $6000. Had the power been exercised .the defendant would have had his money if he wanted it, and something would have been saved for Mrs. Garretson. A long loan on mortgage would have enabled her, after the estate came into possession, to pay off her share of the encumbrance. But while the younger Westcott called on the trustee, as he says, to raise the money, there is no evidence that the elder Westcott, the real owner of the mortgages, and co-tenant with Mrs. Garretson, ever notified the trustee to mortgage the premises or any part, but he permits the sale to take place within six months after he had become the owner of the encumbrances. Edmunds was not bound to pay the money himself, and Mrs. Garretson was a married woman, without an estate in possession to secure a loan. But the defendant chose rather to hold the mortgages in his son’s name from October and November to January, a brief period, which he terms reasonable, and then to sell the property to himself for the small sum of $2400. Now clearly this was not a fair exercise of his power over the estate by means of the purchased encumbrances. Another fact to which the master gave no weight, is that Mrs. Garretson was a married womain without means to pay the money when notified to do so. Her husband was not bound to raise the money or mortgage his farm for it, and therefore the greater reason why the trustee should have been duly and formally called on to exercise the power under the will. As a married woman, under disability and without means, she was entitled to consideration, instead of a sale enforced against her future estate, or a sacrifice of an interest yet distant in the time of enjoyment. A life-tenant being in possession, entitled to the rents, it would have been difficult for Mrs. Garretson to raise ^he money on her expectancy.

Besides, the price at which the defendant bought the property is some evidence of unfairness. It shows, that by means of the possession of the encumbrances he became the owner of property worth $6000, for the sum of $2400. These views show that the master’s position is unsound when he held that Mrs. Garretson’s right as a co-tenant could be asserted only by discharging her duty as co-tenant and contributing her share of the expense, and that therefore she had made an election not to pay, which concluded her. The duty to pay was not then hers, but that of the trustee under the power, and she was not in a position then to be forced into an election, at least by the means taken by the defend*33ant. It would have to appear very plainly that the trustee totally refused to do his duty, and even then he might have been compelled by proceedings in the court. A mere call on Mrs. Garret-son for the money was less than the defendant’s duty, at least, before he could sell the property and buy it in at the time he did. Mrs. Hance did not die till November 1867, and the tender by Mrs. Garretson was in February 1868. There was therefore no such unreasonable delay as would prevent her from calling for a conveyance by deed and an account of the profits of the property set forth in the bill.

In the ejectment between these parties, on writ of error argued with this appeal, we have said that the trust in Luther C. Edmunds ceased at the death of Mrs. Hance, and therefore he is not a proper party; but as the bill is for the use of Mrs. Garretson, the error is amendable, and we shall treat it as amended and decree accordingly.

And now, May 8th 1871, it is decreed that the order and decree of the Court of Nisi Prius dismissing the bill in this ease be reversed, and it is now ordered and decreed that Ebenezer Westcott, the defendant, do by a good and sufiicient deed in fee simple, convey to Mrs. Eliza H. Garretson, her heirs and assigns, all his estate, right, title and interest, of, in and to the one undivided half of the premises set forth in the bill in this case, on the said Eliza H. Garretson paying to him one-half of the principal sums in the two mortgages in the name of James Murphy against John Hance, set forth in the bill and answer, together with lawful interest accrued upon the same since the month of November 1867, allowing to the said Eliza H. Garretson, a credit for one-half of the net rents, issues and profits of the said property; for which purpose an account of the rents, issues and profits is directed to be taken before the master heretofore appointed in this case, the master to ascertain and report also the sum to be paid by Mrs. Garretson to the said Ebenezer Westcott on the delivery of the deed, now ordered to be made by him to her. And the court further order and direct the costs of this case to be paid by the defendant, E. Westcott.