Opinion
(June Term, 1830.)
1. One who has conveyed his property in trust to secure his own debt, and has assented to a sale of it upon disadvantageous terms, cannot, in equity, obtain a resale of it, although it was purchased by the creditor whose debt was secured.
2. But other creditors who have been injured by the sale will be aided.
From SURRY. The case made by the bill, answers, and proofs was that the plaintiff being indebted to the defendant Cowles in the sum of $590, and to other persons to the amount of $400, made a conveyance of all his property to the defendant Hough, upon trust to secure the debt due the defendant Cowles, with a power of sale in case of a default of payment by the plaintiff; that after a default, the defendant Hough, by the directions of Cowles and with the consent of the plaintiff, sold the property assured in trust, for cash, at a ruinous sacrifice, insomuch that although amply sufficient to discharge all the debts of the plaintiff, it was purchased by the defendant Cowles for a sum less than his debt; and that one Allison, who was a creditor of the plaintiff, and attended (421) the sale, offered, if all the property was sold in one lot, to bid for it the amount of his own debt and that of the defendant Cowles. The prayer of the bill was that the property might be resold, under the superintendence of the master, and the plaintiff declared to be entitled to the surplus over and above the debt of the defendant Cowles.
Devereux for plaintiff.
Gaston for defendants.
It does not occur to me that there is any ground on which the plaintiff can be relieved in this case. The property, which was sold under the deed of trust, was conveyed to the trustee by him for that purpose. There is no evidence in the case that supports the charge that the sales of the property were fraudulently conducted, to the plaintiff's prejudice. It was sold for cash, agreeable to the terms of the deed of trust, to which the plaintiff had given his assent, and whether it sold for much or little, there can be no remedy for him. If he and Cowles had combined to defraud Haines' creditors, and on that account the property had been sacrificed, he, being a particeps criminis, could have no remedy, although the creditors defrauded would have a fair claim to one.
The plaintiff probably had it in his power to pursue a course more favorable to both himself and creditors; that is, to have the property sold on a credit. Where a debtor conveys his estate to one creditor by deed of trust, to secure him only, and the property is stipulated to be sold for cash, and not on a credit, in which other creditors are likely to suffer a loss, I think, in such a case, a court of equity would lend its aid to prevent such injustice. But this is not that case. No creditor has applied for relief.
(422) If Allison had paid off Cowles' debt, or tendered it, and it had not been accepted, he might have had a remedy against the property in Cowles' deed of trust. But Allison only proposed to make a bid for the property to the amount of Cowles' and his own debt; and speculated himself into whatever balance might have remained of the property after those debts were satisfied, without any regard to the interest of other creditors. But these remarks are altogether inapplicable to the prayer of the plaintiff for relief.
PER CURIAM. Bill dismissed, with costs.