The trustee for sale is bound by his office to bring the estate to a sale under every possible advantage to the debtor as well as to the creditor. Johnston v. Eason, 38 N.C. 330, and he is bound to use not only good faith but also every requisite degree of diligence in conducting the sale and to attend equally to the interest of the debtor and the creditor alike, apprising both of the intention of selling, that each may take the means to procure an advantageous sale. Anon. case, 6 Mad., 10; Johnston v. Eason, supra. He is charged with the duty of fidelity as well as impartiality, of good faith and every requisite degree of diligence, of making due advertisement and giving due notice.

When the sale was made, he was bound to inquire for the debts made payable out of the fund, though, said Chief Justice Ruffin, it may have been enough to inquire for them according to the description given in the deed. If through haste, imprudence, or want of diligence his conduct was such as to advance the interest of one person to the injury of another, he became personally liable to the injured party. Johnston v. Eason, 38 N.C. 330; Allmand v. Russell, 40 N.C. 183; Hinton v. Pritchard, 120 N.C. 1. According to the facts as set forth by the referee, the trustee knew nothing of the advertisement or the foreclosure until some time after the sale had been made, and afterwards, at a time when apparently he had occasion to doubt and reason to scrutinize the proceeding, he executed a deed to Simmons upon his bare representation that a forged note, which was wholly inoperative (C. S., 3003), was in fact the note held by the plaintiff.

We were told by the counsel of defendants that the trustee in a deed of trust was by virtue of the law the agent of both creditor and debtor; and that is true, but the agency is confined to the duties imposed by the terms of the deed of trust. In making sale under the deed, in preserving the property, in disbursing the proceeds of sale, and in other such matters required of him in the deed, trustee acts as agent of both parties; and in this sense are the authorities to which he cites us (Johnston v. Eason, 38 N.C. 330, and Hinton v. Pritchard, 120 N.C. 1) to be understood. (738) Is the entry made by Merrimon, trustee, on the registry, treated as a memorandum in writing of a contract to convey land, sufficient in form and substance to enable the Court to decree specific performance thereof?

In trust deeds for the benefit of creditors, the trustee is the agent of both creditor and debtor, and he is required to discharge his duties with the strictest impartiality as well as with fidelity, and according to his best ability. Johnston v. Eason, 38 N.C. 330; Perry on Trusts, sec. 620. The purposes of the creditor and debtor, here, are plainly to be seen in this transaction.

But there is no change in the well established law, in respect to personal property — that an administrator cannot bid at his own sale, and surely he cannot be required to exhaust the estate, by repeated sales merely because the heirs, the creditors, and the public will not bid against the widow. The defendants rely upon the authority of Johnston v. Eason, 38 N.C. 330, in which Nash, J., in delivering the opinion of the Court commences by saying — "it is impossible to read this testimony without being entirely satisfied that a great fraud has been attempted," and he closes with the remark that we "see so much of trick and contrivance, as satisfies us that the whole was a base fraud." In our case, we think that the evidence sustains the report of the clerk, that the administrator was in no default, and that the sale was conducted with perfect fairness.

PER CURIAM. Direct an account. Cited: Denny v. Palmer, 27 N.C. 630; Johnston v. Eason, 38 N.C. 334; Froneberger v. Lewis, 79 N.C. 429; Gibson v. Barbour, 100 N.C. 197.