the latter case the Court found that the plaintiff was barred in this action, because he had allowed other rights to intervene. If the case rested on the lapse of time alone, that four years and a half would be insufficient to bar the plaintiff's rights to file a bill.

"The contest which took place before Auditor | appear that in the former case the delay in Harrity lasted from January 2, 1879, until bringing the action was fourteen years, and in January 30, 1883, during which time it did not appear in the testimony that Green held the property for Doyle. In the final account of Doyle, filed March 6, 1885, there is no accounting for rents received for the Museum building after the Museum premises were sold by the sheriff, although the premises had been rented. This very naturally would put Simpson upon the inquiry for whom did Green hold the title, and it evidently did, for this bill in equity was filed April 14, 1885.

"The proviso in the Act of April 22, 1856, is as follows: Provided, That as to any one affected with a trust by reason of his fraud the said limitation shall begin to run only from the discovery thereof, or when by reasonable diligence the party defrauded might have discovered the same: Purdon's Digest, 1064, pl. 14.

"There are cases in which the Statute of Limitations does not apply. Whenever the legal title is in one and the real interest in another, these form but one title, and the statute does not run between them until the trustee disclaims and acts adversely to the cestui que trust: Rush v. Barr, 1 Watts, 120; Fox v. Cash, 11 Pa. 207.

"The failure of Doyle's administratrix to account, in the final account, for rents received for Museum after the sheriff's sales, was the first adverse act on the part of Doyle and his representatives towards Simpson and the Museum premises known by Simpson, and in about one month after the filing of said account the present bill was filed.

"For the foregoing reasons, in the light of the law cited, the Master is of the opinion that the Statute of Repose of April 22, 1856, does not bar complainant's action."

"The fact that Simpson did not receive any income from the trust estate after 1878 was not enough to put him upon inquiry, because the income paid to him and his wife after the first year from the time of the creation of the trust, was growing less each year, until 1878 they received less than $200, and besides there were advances to be paid; consequently Simpson could not have expected any income for some time to come.

"The Master is of the opinion, because of the foregoing reasons and cases cited, that the complainant was not guilty of such laches as to bar his cause of action."

As to whether the averments of the bill were sufficient to support the relief prayed for, the Master reported :

"The Master is of the opinion that the averments in the bill are sufficient to warrant the decree prayed for, if the facts sustain such a finding. It is only necessary for the bill to charge that the respondents stood in a fiduciary relation to the complainant, as to the premises in question; that he bought it at sheriff's sale for less than its value, and that the sale was brought about through the trustee's own procurement: Rickett's Appeal, 21 WEEKLY NOTES, 229.

"Paragraph 8 of the bill charges that the sheriff's sale was procured and permitted by trustee Doyle under an agreement that Green should take title, execute a new mortgage of $40,000, and the balance of the purchase-money "Irrespective of that statute, the limitation should be furnished from the funds of the trust adopted in equity is six years. When a party estate, or raised for the benefit thereof on the claims to hold another as trustee for personal prop-security of Green's title, and when all such aderty under a constructive trust he must assert his vances had been repaid the premises should be claim within six years from the time when it is reconveyed to the trust estate. alleged to have originated. There may be cases where six years would not be allowed, as where the party stands by and sees another dealing with the trust property in a manner inconsistent with any trust and makes no objections, or where rights of third parties have intervened: Ashhurst's Appeal, 60 Pa. 290.

"The sheriff's sale of the Museum property took place June 2, 1879, which is the earliest date when an action could have accrued, and this bill was filed on April 14, 1885, within six years, and the rights of third persons did not intervene. "Respondents' counsel cited Haines v. O'Conner, 10 Watts, 315, and Evans's Appeal, 81 Pa. 278, in support of their position as to laches. But upon an examination of these cases it will

"Paragraph 9 of the bill charges that Doyle was under a legal incapacity to deal with the title to be produced at the sheriff's sale of the premises in question, because Doyle was the actual trustee of the property which was divested by the sheriff's sale, which was in the power of Doyle to prevent.

"The facts found by the Master do not show that the purchase of the Museum property was made with trust funds, nor is there any evidence that there was any agreement that the premises should be purchased with trust funds; there did not appear to be any trust funds in hand at the time of the sheriff's sale. On the contrary, the evidence shows that Doyle paid the excess of the purchase-money down to the principal of the

mortgage. There was no evidence that there | forward within a very limited period of time and was any agreement that Green should take title, should pay all that was necessary, including execute a new mortgage of $40,000 and the bal-counsel fees, to reduce the incumbrance to the ance of the purchase-money should be raised for the benefit of the trust estate. Nor was there any evidence that the excess over and above the principal of the mortgage was raised for the benefit of the trust estate on the security of Green's title.

amount of the principal sum of the mortgage, he was sure that the mortgagee would be glad to have such person take the property. The sheriff's sale took place, and the property was bought by the mortgagee, who took the title in the name of its trust officer. After the sale, which occurred June 2, 1879, Dolye told counsel for the mort

"The Master is of the opinion that the facts produced before him do not sustain the aver-gagee that he was willing to take the property ments in paragraph 8 of complainant's bill."

The Master reported a decree to the effect that respondents account to plaintiff for the income received by them, taking credit for expenditures, and the amount advanced for the purchase of the real estate by Green from Mason; and that Green convey the property to plaintiff as trustee. To this report numerous exceptions were filed, which were dismissed by the Court, PENNYPACKER, J., saying:

and pay all that was necessary to reduce the amount to the principal of the mortgage; that he had not the money himself; that the estate was indebted to him; that he would have to protect himself by buying the property and doing the best he could with it, and that he would take the title in the name of Green. On or about June 19, 1879, Doyle paid to the mortgagee the sum of $8331.24, being the amount of the interest, taxes, expenses, and costs above the principal of the mortgage; the trust officer of the mortgagee conveyed the property to Green, who gave a purchase-money mortgage with a bond to the mortgagee for $40,000. Green executed a declaration of trust in favor of Doyle, dated June 19, 1879.

It further appears that the arrangement sug

The eighth paragraph of the complainant's bill charges that the sheriff's sale and purchase by the defendant Green were procured and permitted by the defendant Doyle, the trustee, under an agreement which, so far as it was known to the complainant, was that Green should take the title and execute a new mortgage to the mortgagee for the sum of $40,000, and that the bal-gested by counsel for the mortgagee before the ance of the purchase-money, $8531.24, should be sale, and carried out by the trustee, Doyle, for furnished from the funds of the trust estate, or his own benefit after the sale, was not communiraised for its own benefit on the security of Green's cated to Simpson, the cestui que trust. The title, and that when the advances had been re- Master has found that Simpson was not a party paid the premises should be reconveyed to the to the plan which Doyle told counsel for the trust estate subject to the mortgage. The answer trust estate he was going to carry out with referdenies that any such agreement was made. ence to holding the property after the sale; that he was fearful the property would be sold by the sheriff, and anxious that the property should be leased so that the interest could be paid, and that he tried to delay the suit by filing an affidavit of defence. In fact, the true character of the proceedings was concealed from him. He did not know of the declaration of trust by Green in favor of Doyle until after suit had been brought. Counsel for the trust estate told him, in the presence of Doyle, that Green would take the title as trustee, and he was assured by Doyle that all Green would have to do with the property would be to hold it and manage it, and that when it was cleared it would go to Mrs. Simpson and the children. The Master has found that he was lulled into a sense of security by his faith in Doyle's statement, and also by a declaration of trust drawn by counsel for the trust estate to be executed by Green in favor of him and family. There was also a letter in evidence, not referred to by the Master, written to Doyle by his counsel, in which the latter says: 'I casually met at O'Byrne's office the friend and backer of Bob (Simpson), and he expressed a good deal of

"The Master has found that the evidence shows that Doyle paid the excess of the purchasemoney down to the principal of the mortgage. There was no evidence that there was any agreement that Green should take the title, execute a new mortgage of $40,000, and the balance of the new purchase-money should be raised for the benefit of the trust estate. Nor was there any evidence that the excess over and above the principal of the mortgage was raised for the benefit of the trust estate on the security of Green's title.'

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While, therefore, holding that the averments in paragraph 8 of the bill are not sustained, the Master finds, however, the following facts:

"After the property was offered for sale under the alias writ of venditioni exponas, Doyle called to see counsel for the mortgagee in order to ascertain what could be done about it. At this interview, which occurred, as counsel thought, before the sale by the sheriff, counsel for the mortgagee told Doyle that the mortgagee did not want to buy the property or to own it, but that if the mortgagee did buy it, and some one should come

curiosity regarding the present condition of the Museum property. This leads me to think it would be well to keep the fact of your having any interest or power over it to yourself. I, of course, was a know-nothing.' That Doyle, instead of buying the property openly, took the title in the name of Green is also a significant fact in this connection.

trust estate, and the Master has found that no such agreement was made. A bill ought not, however, to be dismissed because the averments have not all been proven, or because they have not been proven in their entirety, and with the conclusions from them set out by the pleader. The bill avers that Doyle permitted the sale by the sheriff; that Green was to take the title and "The Master has found that the property cost, execute a new mortgage for $40,000, and that in 1868, the sum of $60,000, and, from the testi- the balance was to be raised for the benefit of mony of experts, that in 1879, after the erection the trust estate. The Master has found that an upon it of new buildings, it was worth $100,000, arrangement was suggested by counsel for the and that it is now valued at $150,000. mortgagee to the trustee, which did not amount

The information obtained by Doyle before to an agreement binding upon the mortgagee, the sheriff's sale from the counsel of the mort-but which was substantially carried out after the gagee of the willingness of the latter, in the sale. The prayers for relief in the bill are such event of having to take the title, to sell it upon as comport with the facts as found by the Master. advantageous terms, was given to him as a trus- We think, therefore, that the bill gave to the detee representing the trust estate. It was his duty, fendants substantial notice of the case they were before making use of it for his own benefit, to required to meet, and that it ought not to be transmit it to the cestui que trust. How can it be dismissed because of defects in the pleading: said that if the cestui que trust had known that Rickett's Appeal, 21 WEEKLY NOTES, 229; the property could be bought by the expenditure Danzeizen's Appeal, 73 Pa. 65. of only $8331.24 in cash, leaving the large proportion of $40,000 to be provided for in the future, it would not have proven as advantageous to him as it did to Doyle. Whether or not it could have been untilized, the information belonged to the trust estate, and the cestui que trust ought to have had the opportunity of making use of it: Reid v. Stanley, 6 W. & S. 369.

"In Parshall's Appeal, 65 Pa. 234, Judge SHARSWOOD says: Parshall stood in a relation of confidence towards them, which made it necessary for him to show affirmatively that his conduct in the transaction had been perfectly fair and open, and that the demand for the property in the market was communicated to them.'

"To bring a case within the ruling of Fisk v. Sarber, 6 W. & S. 18, that a trustee may become the purchaser of the trust estate at a sheriff's sale under a prior mortgage, it must appear that the trustee did not himself bring about the sale, and also that he has performed his whole duty under the circumstances to the trust estate. It is against public policy that he should reap the benefit of information received in his capacity as trustee, and which he failed to disclose. If a trustee could use facts known to him when threatened with an adverse sale of the trust estate in such a way as to be beneficial to himself in the event of its occurrence, he would be subjected to the temptation to let it proceed contrary to the interests of the cestui que trust, and the law does not permit him to be placed in this situation. The facts found by the Master are, therefore, sufficient to support the decree recommended by him.

"The bill avers that the title was taken by Green under an agreement for the benefit of the

"The suit is not barred by the statute of April 22, 1856, for the reasons given by the learned Master.

"The exceptions are dismissed, and the report of the Master confirmed."

The Court entered a decree in accordance with its opinion, and referred the matter back to the Master to state an account.

The Master filed a second report by which he awarded the sum of $1139.08 to the administrator of the estate of Patrick Doyle, deceased, to be paid by the complainant. To this award, defendants filed exceptions, some of which were sustained by the Court, and a final decree was entered, whereby defendant Green was directed to convey the property in question to complainant, subject to the mortgage of $40,000, upon the payment to the administrator of Doyle of the sum of $3002.40.

Defendants then appealed, assigning as error that the Court erred

1. In holding that, although the sheriff's sale of the trust property was not procured by the trustee, but took place in spite of his efforts to prevent it, his failure to communicate to the cestui que trust a statement of the mortgagee's counsel that "the mortgagee did not want to buy the property or to own it, but that if the mortga gee did buy it in, and some one came forward within a very limited time and should pay all that was necessary, including counsel fees, to reduce the incumbrance to the amount of the principal sum of the mortgage, he was sure that the mortgagee would be glad to have such person take the property," rendered the subsequent purchase of the trustee of the property with $8331.24

of his own money invalid as against the cestui | judicial sale in adversary proceedings the trustee que trust.

could become the purchaser.

Fisk v. Sarber, 6 W. & S. 18.
Prevost v. Gratz, 1 Peters C. C. 378.
Lusk's Appeal, 108 Pa. 152.
Allen v. Gillet, 127 U. S. 589.

The mere fact that the trustee was informed of

a probable willingness of the mortgagee in the contingency of his becoming the purchaser to sell to the trustee on certain terms, and did not communicate this information to the cestui que trust, cannot affect the result, because it does not appear that the information was received before the sheriff's sale, and because the cestui que trust being insolvent could not have availed himself of it.

Even if a parol promise had been made to Simpson, who was the defendant in the execution, that Doyle, if he bought, would hold for him, such promise could not be enforced.

The findings of the Auditor on the first account (confirmed by the Court) show that the trust estate was insolvent before this execution issued, and that the trustee had used every diligence in discharge of his duty. These findings, being upon relevant and sufficient testimony in an issue between the same parties, are conclusive in this proceeding. It follows, therefore, that at a

The findings of the Auditor of the first account subsequent conduct in regard to the title. Though were not conclusive.

there was no express agreement to purchase for the trust, there is evidence satisfactory to the Master and the Court below that Simpson believed such was to be the case, and that the conduct of Doyle aided in producing that belief. The Master finds expressly that Simpson was told by O'Byrne in Doyle's presence that Green would take the title as trustee; that a declaration of trust by Green in favor of Simpson's wife and family was prepared by counsel, and Simpson supposed it was executed; that the declaration of trust for Doyle was not put on record; that Simpson did not know of it until it was produced before the Examiner in this suit; and that the first adverse act of Doyle to put Simpson upon notice and inquiry was the failure to include the rents of the property in the account filed in 1885. But aside from and in addition to all this, the undisputed fact is that Doyle did not communicate to his cestui que trust the terms upon which the property could be regained after the sale. While it is clear that no agreement was made by the counsel for the mortgagee, it is

The averments of the bill were sufficient to equally clear that he expressed a belief as to his

client's willingness to make certain terms, which proved to be correct, and was subsequently carried out by his client. This option, prospect,