delivered the opinion of the court; and after stating the case, proceeded as follows : — Such is the general outline of the case ; and in the progress of the investigation, it may become necessary to advert to some other facts with more particularity.

And the first question arising upon this posture of the case is, whether *194Strode, the trustee, by the sale to Yeitoh, has been guilty of any breach of trust. And this seems to the court to be scarcely capable of controversy. That there are circumstances in the case, which raise a presumption of bad faith on the part of the trustee, and expose him to some suspicion, cannot escape observation. But assuming him to have acted with *entire good faith, his proceedings were a plain departure from his duty. In respect to the supposed exchange of the Fauquier for the Frederick lands, it is impossible for a moment to admit its validity. In the first place, it was not made between parties competent to make it. Wormley had no authority over the estate, after the marriage-settlement. The chief object of that settlement was, to secure the property to the use of the wife and children, during the joint lives of the husband and wife. And though it is said, in another part of the deed, that Wormley shall occupy and enjoy the estate, and the issues and profits thereof, during his life, yet this was to be, under,leave of the trustee ; and to suppose that he thus acquired an equitable interest for life, is to defeat the manifest and direct intention of the other clauses in the deed, which avow the whole object to be, the security of the estate, during the same period, for the use of the wife and children. The true and natural construction of this clause is, that it points to the discretion which the trustee may exercise, as to allowing the husband to occupy the estate, and take the profits, for the maintenance of the family, whenever the trustee perceives it may be safely done, without involving the trustee in any responsibility, to which he might be exposed, by such a permission, without such an authority. But at all events, the right to dispose of the equitable fee to any one, much less to the trustee himself; did not exist in Wormley ; and any exchange attempted to be made by him, however benefi-c*a*’ wou^ have been utterly void. But no *exehange was, in fact, consummated. It is true, that the removal to the Fauquier lands took place, upon an agreement to this effect; but no definitive conveyance was ever made; and the trustee himself never settled, and never took a step towards settling, the Fauquier estate upon the trusts of the marriage-settlement, as it was his indispensable duty to do, if he meant to conduct himself correctly. As to the substituted Kentucky lands, the transaction was still more delusive. The agreement for the substitution was merely conditional, depending upon the subsequent election of Wormley, and his dissent put an end to it. As to the conveyance- to Lee, ostensibly for the trusts of the settlement, it can be viewed in no other light than an attempt to cover up the most unjustifiable proceedings. That conveyance was not executed, until after the dissent and dissatisfaction of Wormley were well known ; and so far from its containing any valid performance of the trusts, it expressly gives a prior lien to the purchasers of the Frederick lands, as security for their covenant of warranty ; and to complete the delusion, the trustee reserved to himself the authority to substitute any other lands, leaving the trusts to float along, without fixing them definitively upon any solid foundation. If we add, that the Fauquier lands were mortgaged to the purchasers for the same covenant; and that this mortgage was discharged only for the purpose of selling the property to Grimmar and Mun-dell, we shall come irresistibly to the conclusion, that the trustee never was ™ a sitaati011 *t0 g^e an unincumbered title on either the Fauquier or Kentucky lands, to secure the trusts ; and that if he was, he never, *195in fact, executed any conveyance for this purpose. In every view, therefore, of this part of the case, it is clear, that no valid exchange did, or could take place; and that as there was no equitable or legal transmutation of the property from the eestuis que trust, it remained in the trustee, clothed with all the oi’iginal fiduciary interests.

But independent of these considerations, there is a stubborn rule of equity, founded upon the most solid reasoning, and supported by public policy, which forbade any such exchange. No rule is better settled, than that a trustee cannot become a purchaser of the trust estate. He cannot be at once vendor and vendee. He cannot represent in himself two opposite and conflicting interests. As vendor, he must always desire to sell as high, and as purchaser, to buy as low, as possible ; and the law has wisely prohibited any person from assuming such dangerous and incompatible characters. If there be any exceptions to the generality of the rule, they are not such as can affect the present case. On the contrary, if there be any cogency in the rule itself, this is a strong case for its application ; for, by the very terms of the settlement, the trustee was invested with a large discretion, and a peculiar and exclusive confidence was placed in his judgment. Of necessity, therefore, it was contemplated, that his judgment should be free and impartial, and unbiassed by personal interests. The asserted *exchange, so far at least as it affects to justify or confirm the proceedings of the trustee, may, therefore, be at once laid out of the question.

Then, was the sale to Veitch a breach of trust? The power given to the trustee by the settlement, is certainly very broad and unusual in its terms ; but it is not unlimited. The trustee had not an unrestricted authority to sell, but only when, in his opinion, the purchase-money might be laid out advantageously for the eestuis que trust. It is true, the sale and re-investment are to be decided by his opinion ; which is an invisible operation of the mind. But his acts, nevertheless, are subject to the scrutiny of the law ; and if that opinion has not been fairly and honestly exercised, if it has been swayed by private interests and selfish objects, if the sale has been at a price utterly disproportionate to the real value of the property, and the evidence demonstrate such facts, a court of equity will not sanction an act which thus becomes a fraud upon innocent parties.

Much ingenuity has been exercised, in a critical examination of the nature of the power itself, as it stands in the text of the settlement. It is contended, that the acts of sale, and of re-investment, are separate and distinct acts, and the power to sell is, therefore, to be disjoined from that of re-purchase, so that the sale may be good, though the purchase-money should be misapplied. How far a bond fide purchaser is bound, in a case like the present, to look to the application of the purchase-money, need not be decided in this case. There is much reason in the doctrine, that where the *trust is defined in its object, and the purchase-money is to be re-invested upon trusts which require time and discretion, or the acts of sale and re-investment are manifestly contemplated to be at a distance from each other, the purchaser shall not be bound to look to the application of the purchase-money ; for the trustee is clothed with a discretion in the management of the trust fund, and if any persons are to suffer by his misconduct, it should be rather those who have reposed confidence, than those *196who have bought under an apparently authorized act. But in the present case, it seems difficult to separate the acts from each other. The sale is not to be made, unless a re-investment can, in the opinion of the trustee, be advantageously made. He is not to sell upon mere general speculation, but for the purpose of direct re-investment. And it is very difficult to perceive, how the trustee could arrive at the conclusion, that it was proper to sell, unless he had, at the same time, fixed on some definite re-investment, ■which, compared with the former estate, would be advantageous to the parties. Although, therefore, the acts of sale and purchase, are to be distinct, they are connected with each other ; and, at least, as to the trustee, there cannot be an exercise of opinion, such as the trust contemplated, unless he had viewed them in connection. If he should sell, without having any settled intention to buy, leaving that to be governed by future events, he would certainly violate the confidence reposed to him. A fortiori, if he should se^’ an intention, not to re-invest, but to speculate, for the *purpose of relieving his own necessities, or of appropriating the trust fund indefinitely to his own uses.

Now, in point of fact, what has the trustee done in this case ? He has sold the trust property, to pay his own debts. He has never applied the proceeds to any re-investment. To this very hour, there has been no just and fair application of the purchase-money. The Fauquier lands are gone, the Kentucky lands have been rejected, and are loaded with liens ; and there is nothing left but the personal responsibility of the trustee, embarrassed and distressed as he must be taken to be, unless the trusts are still fastened to ■the Frederick lands. Can it then be contended for a moment, that there is no breach of trust, when the sale was not for the purposes of re-investment ? When the party puts his-right to sell, not upon an honest exercise of opinion, at the time of sale, but upon a distinct anterior transaction, invalid and incomplete, by which he became clothed with the beneficial interest of the estate ? When he claims to be, not the disinterested trustee, selling the estate, but the trustee purchasing, by exchange, the trust fund, and thus entitled to deal with it according to his own discretion, and for his own private accommodation, as absolute owner? Where the purchase-money is to be applied to extinguish his own debts ; and there is no proof of his means to replenish, or acquire an equal sum from other sources ? In the judgment of the court, the sale was a manifest breach of trust. It was, no Pr0Per sense, an execution of the power. The power, *in the contemplation of the trustee, was virtually extinguished. He sold, not because he intended an advantageous re-investment; but because he considered himself the real owner of the estate. The very letter, as well as the spirit of the power, was, therefore, violated ; for the trustee never exercised an opinion upon that, which was the sole object of the power to sell, an advantageous re-investment.

The next point for consideration is, whether the defendants, Yeitch, and Castleman and M'Cormick were bond fide purchasers of the Frederick lands, without notice of the breach of trust. If they had notice of the facts, they are necessarily affected with notice of the law operating upon those facts ; and their general denial of all knowledge of fraud, will not help them, if, in point of law, the transaction is repudicated by a court of equity. *197If they were bond fide purchasers, without notice, their title might have required a very different consideration.

And first, as to Yeitch. The deed to him contained a recital of the marriage-settlement, and the power authorizing the sale. He, therefore, had direct and positive notice of the title of the trustee to the property. There is the strongest reason to believe, that he was fully cognisant of the exchange of the Frederick and Fauquier lands, negotiated between Wormley and the trustee. The certificate from Wormley, respecting the exchange, and expressing satisfaction with it, which was procured a few days before the sale, and which Yeitch now produces, shows that he *must have had a knowledge of the exchange. Its apparent object was, to ascertain the state of the title. The removal of the Wormley family, and their known residence, at this time, on the Fauquier lands, strengthen this presumption. If he knew of the exchange, he could not but know, that he purchased of the trustee an estate, which he claimed as his own, in a bargain with an unauthorized person, and that the trustee was, at the same time, the vendor and purchaser. He also knew, that the sale to himself was not in execution of the power, or for the purpose of re-investment ; for according to the other facts, the exchange had already effected that, and no further re-investment was contemplated. He took a mortgage, as additional security, for the warranty, on the sale of the Fauquier lands, not even now alleging, that he did not know their identity. And under these circumstances, he could not but know, that there had been no actual conveyance or declaration of trust of the Fauquier lands, in execution of the trust, for, otherwise, the trustee could not have mortgaged them to him. He, therefore, stood by, taking a conveyance from the trustee of the trust estate, knowing, at the same time, that no re-investment had been made, which could be effectual, and that no re-investment was contemplated as the object of the sale ; and, so far as his mortgage could go, he meant to obtain a priority of security, that should ride over any future declaration of trust.

This is not all. The very sale of the trust fund was to be, not for re-investment, but to pay a large *debt due to himself, upon which a decree of foreclosure of a mortgaged estate had been obtained ; and he could not be ignorant, that the application of the trust fund to such a purpose, was a violation of the settlement, and afforded a strong presumption, that the trustee had no other adequate means of discharging the debt, or of buying other lands advantageously in the market. And yet, with notice of all these facts, the deed itself, from the trustee to Yeitch, contains a recital, that the sale was made “ with the intention of investing the proceeds of such sale in other lands, of equal or greater value.” This was utterly untrue, and could not escape the attention of the parties. Yeitch then had full knowledge of all the material facts, and he does not even deny it in his answer ; for that only denies the inference of fraud, which is a mere conclusion of law from the facts, as they are established. Purchasing, then, with a full knowledge of the rights of Mrs. Wormley and her children, and of the breach of trust, Yeitch cannot now claim shelter in a court of equity, as a bond fide purchaser for a valuable consideration.

The next question is, whether Castleman and M‘Cormick are not in the same predicament. In the judgment of the court, they clearly are. They purchased from Yeitch, whose deed gave them full notice of the trust, and *198they could not be ignorant of the recital in it, since their title referred them to it. They must have perceived, that the sale to Veitch, in order to be valid, must have been with a view to re-investment of the purchase-money **n ot^er real estate. It was natural for them to inquire, whether the sale had been made under justifiable circumstances, and whether there had been any such re-investment. Previous to the sale to Veitch, they had entered into a negotiation with the trustee himself, for a direct purchase of the Frederick lands ; and on that occasion, became acquainted with the fact, that the trustee was largely indebted to Veitch, and that one object of the sale was, to apply the proceeds to the payment of that debt. How then could they be ignorant, that the proceeds of the sale, which was very soon afterwards made to Veitch, were to be applied to extinguish the same debt, and that the transfer was not in execution of the trust, but to administer to the trustee’s own necessities ? This is not all. Before the execution of the deed to them, they knew of the arrangement respecting the Fauquier lands, and that Wormley had become dissatisfied with the bargain. They knew that these lands had not been settled by the trustee, upon the trusts of the settlement, and they took an equitable assignment of the mortgage, from Veitch, of the same lands. It may be said, that the evidence of these facts is not positively made out in the record ; but if it be not, the circumstantial evidence fully supports the conclusion. The answer itself of Castle-man and McCormick, does not deny notice of these facts. It states, indeed, that they supposed, the transaction with Veitch fair, because they were satisfied, that the trustee never received more from Veitch than what he has £Pven rá-6 oestuis que trust credit for. *Was it a fair execution of the trust, so to sell the estate, and to give credit for the proceeds ? To apply them to pay the trustee’s debts, and relieve his necessities ? To sell, without any definite intention as to a re-investment ? They also deny all knowledge of fraud. But this is a mere general denial, and does not negative the knowledge of the facts, from which the law may infer fraud.

The subsequent conduct of Castleman and McCormick shows, that they were not indifferent to the execution of the trust; but that they felt no interest to secure the rights of the cestuis que trust. They were privy to the removal to Kentucky, and exhibited much anxiety to have it accomplished. They knew, subsequently, the dissatisfaction of Wormley with that removal, and with the Kentucky lands. Yet they, in the year 1813, relieved the Fauquier lands from their own incumbrance, and enabled the trustee to dispose of it for other purposes than the fulfilment of the trusts for which it had been originally destined. And throughout the whole, their conduct exhibits an intimate acquaintance with the nature of their own title, and the manner and circumstances under which it had been acquired by Veitch, and the objections to which it might be liable. And they ultimately took the general warranty of Veitch, upon releasing their claim on the Fauquier lands, as a security for its validity.

There is a still stronger view which may be taken of this subject. It is a settled rule in equity, that a purchaser, without notice, to be entitled to Pro^ee^on3 must not only be so, at the time of the *contract or conveyance, but at the time of the payment of the purchase-money. The answer of Castleman and McCormick does not even allege any such want of notice. On the contrary, it is in proof, that upwards of $3000 of the pur*199chase-money was paid in the autumn of 1813, and the spring of 1814. And this was not only after full notice of the anterior transactions, hut after the commencement of the present suit. It appears to us, therefore, that the circumstances of the case can lead to no other result, than that Castleman and McCormick were not purchasers, without notice of the material facts constituting the breach of trust; and that, therefore, the Frederick lands ought, in their hands, to stand charged with the trusts in the marriage-settlement. The leading principle of the decree in the circuit court was, therefore, right.

Some objections have been taken to the subordinate details of that decree ; but it appears to us, that the objections cannot be sustained. The decree directs an account of the rents and profits of the Frederick lands, while in possession of the defendants. It further directs an allowance of the amount of all incumbrances which have been discharged by the defendants, and of the value of any permanent improvements made thereon, and also of any advances made for the support of Wormley’s family. These advances are to be credited against the rents and profits ; and the value of the improvements, and of the discharged incumbrances, not recouped by the rents and profits, are to be a charge on the land itself. A more *liberal decree could not, in our opinion, be required by any reasonable view of the case.

An objection has been taken to the jurisdiction of the court, upon the ground, that Wormley, the husband, is made a defendant, and so all the parties on each side of the cause are not citizens of different states, since he has the same citizenship as his wife and minor children. But Wormley is but a nominal defendant, joined for the sake of conformity, in the bill, against whom no decree is sought. He voluntarily appeared, though, perhaps, he could not have been compelled so to do. Under these circumstances, the objection has no good foundation. This court will not suffer its jurisdiction to be ousted, by the mere joinder or non-joinder of formal parties ; but will rather proceed without them, and decide upon the merits of the case between the parties, who have the real interests before it, whenever it can be done, without prejudice to the rights of others, (a)

After the most careful examination of this voluminous record, I think it *due to the parties defendant, to express the opinion, that I cannot discover any evidence of fraud in any part of their transactions.

*201*The proposed exchange between the Frederick and Fauquier lands, was made openly and deliberately, *upon consultation with friends of the cestuis que trust, and, obviously, had many prudential *considerations to recommend it. That Wormley and his family *202must have starved, had they remained *upon the lands in Frederick, is abundantly proved; and no worse consequences could, have *happened to them, from either of these exchanges. It is satisfactorily shown also, that the exchange *for the Fauquier land *203was highly advantageous. Taking money, as the most correct comparison of *value, it appears, that the Frederick land, after being long hawked about for sale, and having $1000 added to its value by Strode, in the extinction of the mother’s life-estate, sold for no more than *204$5500, a sum satisfactorily proved to be its full value at the time ; whereas, the Fauquier land, after Wormley’s refusal to take it, was sold for $8000. So that the two tracts then stood, in comparison of value, as $4500 to $8000. And that Strode was fully sensible of the great difference in value, and satisfied to bear the loss, is positively proved, by the fact, that when Wormley reso^ve^ l-0 move to Kentucky, *they established the value of the Fauquier lands between themselves at $7000 ; and Strode actually gave an acknowledgment to Wormley for $6500, the balance of the $7000, after dividing with him the sum paid for his mother’s life-estate.

The case is one in which, it is true, the conduct of the defendants is greatly exposed to misrepresentation and misconstruction; but when reduced to order, and examined, the circumstances admit of the most perfect reconciliation with the purest intentions. It is true, that Strode was in debt; that it was necessary to sell the Fauquier lands, to satisfy his creditors ; that the money arising from the Frederick land was applied to the payment of Strode’s debts ; but there was nothing iniquitous in all this. It is perfectly explained thus : the Fauquier land must be sold to pay Strode’s debts; the situation of the Wormleys on the trust estate was so bad, that no change could make it worse ; the removal to the Fauquier lands was thought advisable by all their friends ; where then was the fraud in letting them have the Fauquier lands, at an under price, and paying his debts out of the actual proceeds of the trust estate ? The money arising from the latter was, under *205this arrangement, the price of the former. It was, in fact, paying his debts with the price of his own property, not that of the trust estate.

It has been argued, that the sale of the trust estate was not made with a view to re-investment; but the evidence positively proves the contrary. It goes to show, that the re-investment was the leading object, and actually took place, previous to *the sale of the trust estate. And even if that construction of the power be conceded, which would require the sale and re-investment to be simultaneous acts, or that which would render the purchaser liable for the application of the purchase-money, the facts of the case would satisfy either exigency. For the re-investment was actually made simultaneously with the sale ; or, if it was not finally consummated, the cause is to be found altogether in the anxiety of the defendants to satisfy a capricious man, and the ignorance of Strode in supposing himself justified in yielding to Wormley’s judgment or will.

Had Strode actually sold the Fauquier lands ; paid off his incumbrances from the purchase-money; then sold the Frederick land ; and re-invested the fund in a re-purchase of the Fauquier lands, there could not have been an exception taken to the sufficiency of the re-investment. And then the transaction would, in a moral point of view, have been necessarily regarded as favorably as I am disposed to regard it. Tet, it is unquestionable, that, thus stated, it presents a correct summary of the whole transaction, as made out in the evidence. It has, however, been put together so as to admit of distorted views ; and such will ever be the case, where men expose themselves to suspicion, by mixing up their own interests with the interests of others placed under their protection. I can see nothing but liberality in the conduct of Strode towards Wormley, and little else than improvidence, caprice and ingratitude in the conduct of the latter.

*Nevertheless, there are canons of the court of equity which have their foundation, not in the actual commission of fraud, but in that hallowed orison, “lead us not into temptation.” One of these is, that a trustee shall not be permitted to mix up his own affairs with those of the cestui que trust. Those who have examined the workings of the human heart, well know, that in such cases, the party most likely to be imposed upon is the actor himself, if honest; and, if otherwise, that the scope for imposition given to human ingenuity, will enable it generally to baffle the utmost subtlety of legal investigation. Hence, the fairness or unfairness of the transaction, or the comparison of price and value, is not suffered to enter into the consideration of the court, on these occurrences ; but the rule is positive and general, that the cestui que trust may be restored to his original rights against the trustee, at his option. And where infants, &c., are interested, they will be restored or not, with a view solely to the benefit of the cestuis que tmst. It is unquestinable, from the evidence, that both Yeitch, and Castleman and McCormick, must be affected by both legal and actual notice of the transactions of Strode. They are, therefore, liable to the same decree which ought to be made against the latter.

It is, however, some satisfaction to me, to be able to vindicate their innocence, while I feel myself compelled to subject them to a serious loss. The rule which requires this adjudication, may, in many cases, be a hard one, but it is a fixed rule, and has the sanction of public policy.

Decree affirmed, with costs.