sons to whom this rule extends are trustees for sale, trustees who have been engaged in the management of the property as guardians or stewards, attornies of the vendor, unless the relation has previously ceased, creditors consulted [*]as to the mode of sale, and auctioneers, as also the agents (a) and assistants (b) of all such persons. But nominal trustees, such as those to preserve contingent remainders or to prevent dower, and trustees merely invested with the legal estate, but in no way concerned in the management, as also mortgagees, at least mortgagees who are not in possession(c), do not come within the prohibition (d).

It has been mentioned, that purchases by trustees or other persons confidentially employed are valid in certain cases, where the owner of the estate sold being sui juris-capable as well in point of age and judgment, as of freedom of will, to enter into a binding contract-consents to the sale. To make such consent binding the following circumstances are necessary; first, that the purchaser should have communicated to the beneficial owner every information within his knowledge respecting the nature and advantages of the estate; secondly, that he must have

(a) Whitcomb v. Minchin, 5 observations on that case in his Madd. 91. Treatise on Purchases, 7th Edit. (b) Oliver v. Court, 8 Price, 591, and per. Lord Redesdale in the case of Hickes v. Cooke, 4 Dow. P. C. 28.

127.

(c) The decision in Webb v. Rorke (2 Scho. and Lefr. 661) by Lord Redesdale, impugns in some degree the position in the text with respect to purchases by mortgagees. But see Mr. Sugden's

(d) See the cases on this subject generally, collected in Sugd. on Purchases, 7th Edit. 588, et seq.; and in 2 Fonbl. on Eq., 5th Edit. 189.

treated directly in his own name; and thirdly, that the vendor, after freely discharging him from his fiduciary character, dealt with him as with an indifferent person(a) (1).

[*]The relief which equity affords when the sale may be impeached, is, at the party's option, a re-conveyance on payment of the original purchase money and money laid out in improvements with interest, deducting the amount of the intermediate rents and profits, or a re-sale; in which latter case, if a larger sum than the aggregate of the price given and expenses incurred in improvements be bid, the former purchase will be set aside, if not, it will be ordered to stand(b).

Such is the course adopted where the transaction is of recent occurrence; but if it be of remote date the case receives a very different determination. The long delay of the parties in bringing forward their objections to the sale will in ordinary cases be fatal to the application to have it set aside. From the delay a presumption arises that the relation between the

(a) 6 Ves. 625: 10 Ves. 428-9;

(b) See Sugden on Purchases, 1 Wils. C. C. 1; 2 Sim, and Stu. 7th Edit. 601, et seq. 49, 50.

(1) Van Horne v. Fonda, 5 Johns. Ch. 388. Green v. Winter, 1 Johns. Ch. 27. Parkist v. Alexander, 1 Johns. Ch. 394. Scheffellin v. Stewart, 1 Johns. Ch. 620. Brown v. Ricketts, 4 Johns. Ch. 303. Evertson v. Tappen, 5 Johns. Ch. 497. Hawley v. Mancius, 7 Johns. Ch. 174. Holdridge v. Gillespie, 2 Johns. Ch. 232. Hart v. Ten Eyk, 2 Johns. Ch. 76. Davoue v. Fanning, 2 Johns. Ch. 232. Hendricks v. Robertson, 2 Johns. Ch. 211. Howell v. Baker, 4 Johns. Ch. 118. Matthews et ux. v. Dragaud, 3 Dessaus. 25.

purchasing trustee or agent, and the cestui que trust or principal, (assuming the latter to be under no legal impediment,) had at the time of the purchase been totally or partially abandoned, and that in other respects the sale was conducted with fairness (a). The case is then in effect assimilated to that of a contract which in the first instance would have been allowed, and the purchaser, on such ground, therefore, is not permitted to be disturbed(1).

In cases of this kind, persons claiming interests in remainder must be equally vigilant and prompt to [*]object to the purchase as those who have interests in possession; for they are in the same degree with the latter affected by the time which runs even during the continuance of the immediate estate in possession; and whenever the lapse of time is such as to afford the argument of acquiescence against the party presently entitled, all those who claim in remainder are simultaneously concluded from objecting to the purchase. An analogy to the provisions of the statute of limitations is in this respect with great propriety disregarded. That statute relieves the successive remainder-men from the bar which, as against preceding estates, may be complete, because until their estates successively vest in possession, they are not competent to bring their action. But in the case of a fraudulent purchase by a trustee or executor, every remainder man, whatever situation he may occupy in the order of limitations, and whether that

(a) 11 Ves. 226.

(1) Prevotz v. Gratz, 6 Wheat. 481.

interest be vested or contingent, has such a present and immediate right as would enable him to sustain the character of plaintiff in a suit to avoid the purchase(a).

But although on the authority of the case of Andrew v. Wrigley, it may be laid down, that even contingent interest s in remainder are affected by lapse of time in the same degree as immediate interests in possession, yet it is conceived that the rule must be restricted to those cases, in which, notwithstanding the interest be contingent, the person who is to take is in esse and [*]certain. It ought not to be extended to those, where the contingency consists in the description of the person who is to take in remainder, because until some one exists answering that description, as there is no person to whom a present interest in the remainder or limitation over belongs, a bill filed in respect of that remainder would be liable to be met by a plea in abatement. The conclusion to which these considerations lead may not perhaps be warranted by any authority,-but it cannot be doubted, that a court of equity would never allow interests of this description to be barred by a presumed acquiescence, when in fact there existed no person who could be said to acquiesce. Whenever the take in remainder is ascertained by the happening of the contingency, then of course the time which he suffers to elapse, if sufficiently long, may be objected to him as affording the usual presumption.

person to

With regard to the length of enjoyment which se

(a) See Andrew v. Wrigley, 4 Leach, V. C. 5 Madd. 55. Bro. C. C. 125; also per Sir J.

cures the title of a purchasing trustee or person holding a confidential situation, by concluding the right of those with whose interests he was formerly entrusted, no definite rule can be proposed (1). The judicial dicta are very general: they merely assert, that the application to impeach the sale must be made within a reasonable time(a); but no intimation has been given of the precise period which may be so denominated. And the decided cases merely show, that equity, in this instance is not governed by a regard to the provisions [*]of the statute of limitations; that, in fact, a neglect for eighteen (b), or for sixteen years(c), may preclude the title to relief(d).

It seems not improbable, that forbearance even for a shorter period than sixteen years would, under circumstances, be effectual to quiet the possession of the purchaser. Thus, where the neglect of the plaintiff has been very palpable,-where, notwithstanding full knowledge of the facts, and ability to pursue his right, he has wilfully lain by,-twelve or thirteen years, perhaps, would be held to afford the presumption of a release or waver(e). And if, in addition to these circumstances, the negociation should have been conducted in other respects with fairness, and is impeach

(a) See 5 Ves. 280; 1 Jac. and Walk. 59; 2 Scho. and Lefr. 672. (b) Gregory v. Gregory, Coop.

C. C. 201.

54.

Ves. 681, cited; Morse v. Royal, 12 Ves. 355; Western v. Cartwright, Sel. Cha. Ca. 34; Medlicott v. O'Donel, 1 Ball and Be.

(c) Whatton v. Toone, 5 Madd. 156; Chalmer v. Bradley, 1 Jac.

(d) See also Norris v. Le Neve, 3 Atk. 26, 38; Price v. Byrn, 5

and Walk. 51.

(e) See Oliver v. Court, 8 Price, 127, 167-8.

(1) Prevotz v. Gratz, 6 Wheat. 481.