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which there is no pretence, as the facts show, as far as such a negative is susceptible of being demonstrated, that they did not know, until just before the bringing of this suit, either that Jacob had bought the lot for $800, or even that it had been their property, or sold as such. Jacob's answer would alone be sufficient for their purpose: by not responding to the allegation of ignorance and non-discovery he admits it, as decided in the analagous case of Wilson v. Wilson, &c., 9 B. Monroe. But, in addition to the admission in the pleadings, the facts proved and the intrinsic probabilities resulting ought to be alone conclusive on this point.

Nor, consequently, on the ground of time. There never was a case in which the facts proved more clearly ignorance and non-discovery, and more satisfactory reasons why the discovery, finally made from an accidental clue, was not and could not have been made sooner than it was. Moreover, Jacob will be a gainer, rather than a loser, by the lapse of time, especially if he should be required to surrender only half the spoil, the other half alone making a stupendous speculation. There can be no possible doubt, as this court's opinion seems to admit, that Jacob illegally bought the whole lot for $800, without the authority of the infant owners, and without their consent or knowledge; consequently they, and not he, might complain of time and its


Nor on the ground that the commissioner was not apprised of the private arrangement between Jacob and Bainbridge as the volunteer friend of the infants. It is altogetner probable that the commissioner knew that such an arrangement had been made, and that Jacob, who could not attain his object unless the commissioner should sell the whole lot for the amount of the decree, communicated to him the fact that he had agreed, in that event, to pay $800. But it is perfectly immaterial whether the commissioner had knowledge of the agreement or not, the sale was equally illegal and void in either aspect of that fact, and can derive no actual validity either from the commissioner's report of his official acts or from the approval of the court, which was a matter of course without any knowledge of the hidden fact which made an apparently legal sale illegal and void.

gality of the whole arrangement, if all had been done with the most pure good faith. A sale of more land than was necessary to satisfy the decree was unauthorized and void; the actual sale was of the whole lot, and for exactly the amount of the decree; had not the private and unauthorized sale of the whole lot for no more than the decree required been made, either none of it, or not more than about half of it, would have been sold. Bainbridge had no authority to bind the infants. Jacob knew this, and, while he was more than willing to get the whole lot for $800, he knew also that the only way to effect the object was to agree secretly to give that sum for the whole, refuse to buy less, and secure a surreptitious title by a formal sale by the commissioner to him for the amount of the decree without competition. His illegal arrangement with Bainbridge secured and effected this-there was no rival bid because it would have been unavailing, for, had any person ventured to bid the amount of the decree for less than the whole lot, Bainbridge, considering himself bound to Jacob, would not have permitted a sale of part; and consequently there must either have been no sale or Jacob must have been the purchaser of the whole lot for the amount of the decree as agreed and effectually pre-arranged. It cannot, we think, be possible for the court, on a review of all the facts, to adhere to the suggestion in the opinion that the arrangement between Bainbridge and Jacob was merely hypothetical, and should not be presumed to have influenced the official sale under the decree. Had this been so, why was the private contract made? If, without some such arrangethe lot for the amount of the decree, why did ment, Jacob could have bought the whole of he agree to pay nearly double that sum? The answer is obvious and inevitable: the private contract was the sale, and secured, as was insale of the whole lot to Jacob for the amount of tended and arranged, the mere form of official the decree. How then could it ever be repeated by the court that it is not probable that influence on the sale, and that, if that arrangethe contract for the whole lot at $800 had any Jacob would have bought the whole for $457, ment had never been made, it is probable that or less. The court did not thus assume or reason in Wilson's heirs v. Wilson, &c., 9 B. Monroe.

Not only was the private sale intended to Nor on the ground that actual fraud is not prevent a public sale of a fraction, but it preestablished. Many circumstances conduce to vented Bainbridge from borrowing the money show such fraud on the part of Jacob; but, not or selling other property, and compelled him needing any such resource, we will not dwell to sell the whole lot and nominally for only on that matter. The undoubted facts show the amount of the decree, without the privilege that the sale, as reported, was not the true of bidding against Jacob. The case is, theresale, and was made illegal and void by the private arrangement which controlled and produced it. This was certainly, at least, a constructive fraud on the infants, on the law, and on the court; and had there been no constructive fraud, a trust resulted from the ille

fore, just such in principle as it would have been, had Jacob bid $800 at the commissioner's sale, and induced a report that he was the highest and only bidder, and became the purchaser of the entire lot for the amount of the decree.

which the complainants were entitled, and in violation of their rights, he cannot protect himself against the consequent liability on the ground, however true, that he supposed the land was liable for the debts which he agreed to pay, and that the arrangement by which it was subject to them, though irregular, was not unjust or injurious. It was his duty, as the person acquiring the property, to know that the facts existed to relieve his conduct from the charge of flagrant injustice and injury, and to take care that the price paid by him was so applied as to effect the equity of complainants" -that is to the payment of other debts for which the same land was liable. This proves that trust alone arising from an illegal contract, however honorable, was sufficient.

But the court, in its opinion, seems very full and fair competition. And therefore, and properly to repudiate every other ground for because also the commissioner had no interest the affirmance than the assumption that Jacob in the sale, and both he and Hicks (the purwas fairly the highest and only bidder, and chaser) may have understood (as they averred would have bought the entire lot for the amount that they did) that the residue of price given by of the decree or less, had he made no contract the private contract was, after satisfying the with Bainbridge. And if this be untenable, decree, to be applied to the payment of other as it appears clearly to us to be, we cannot see debts exceeding in amount the real value of how a change of the opinion and a reversal the land, and for which it was liable, the court of the decree of the circuit court can be rea- exonerated the commissioner from liability sonably or consistently avoided. That ground and decreed relief in favor of the infant heirs being removed, the case, in its best attitude for against Hicks, and on the ground of trust, as Jacob, is one of implied trust resulting to in- the opinion will undeniably show. After defant heirs from an illegal and void purchase of ciding that a bona fide purchaser from Hicks their land without their knowledge or sanction, was not responsible, the court, in that opinion and which trust the court, on their application, says: "Hicks-whether he be regarded as a must enforce unless they had done something fraudulent purchaser or as vender who violated which renders it inequitable. It is not alleged his trust by selling the land, is, in either case, by Jacob, or intimated by his counsel, that personally liable for the injury which he has those heirs have done any such thing them- done to the complainants. Having received selves, or that any other person, who had and enjoyed, and sold the very property to authority to act for and bind them, has ever done any such thing. Then the case is a plain one on general and well established principles of equity, and which have been recognized by this court in Wilson's heirs v. Wilson, supra. The opinion delivered in that case settles this; and in our judgment both opinions cannot stand as exponents of the law of the land. One of them must be wrong. Though the facts of the two cases may be, in some slight degree, circumstantially different, yet, in principle and everything else essential, they run on all fours together, and are substantially identical excepting only in two particulars, which make this a stronger case for relief than that in 9 B. Monroe. In the case published there may have been actual fraud. But this difference, if existing, would be immaterial, for trust resulting from illegality would To show that, without actual fraud, the case be as effectual for relief without, as it would was one of resulting trust, the court had prebe with the incident of actual fraud; and this viously said in the opinion, "as it is entirely is virtually decided in the reported case, which certain that the land was not purchased for the recognizes the doctrine that the trust resulting sum of $42, reported by the commissioner, from an unauthorized private sale of an entire but for a much larger sum admitted by Hicks tract of land for a much larger sum than that to have been paid by agreement with Joseph for which a sale of as mnch only as should be Wilson and others, it is obvious that, while the necessary to pay an adjudged debt was decreed, commissioner's sale for $41 was used as the and a public sale, pro forma, of the whole tract means of passing the legal title in apparent for the amount decreed, for the purpose of compliance with the equity of the complainants confirming the private sale, was a sufficient and their co-heirs, and apparently in extinground for setting aside the sale and restoring guishment of it, the real purchase was for a the land on equitable terms to the outraged much larger sum, and by private or indiinfant owners. See p. 276-8 and 280. In vidual arrangement. The real subject of that case, although the commissioner may the private, as well as the public sale, was have known that Hicks, the only bidder at his the equity of all the heirs which was perfect, sale, had made a contract with two of the except for the charge of $41"-page 276. adult owners of the land for paying a much The opinion then puts the illustrative question, larger sum than the amount of the decree, and whether, if, instead of the private agreement by which contract it was understood and in- which was made, Hicks had agreed with an tended that he should buy the whole tract opposing bidder to give him the same sum not under the decree and for the decretal debt, yet to bid against him, "he would not hold the it was neither alledged nor should be presumed land in trust for the owner, except to the exthat the commissioner did not allow reasonable tent of the ostensible sum for which it was time for other bids, or in any way, acted un-sold under the decree?" And then adds: fairly at the sale, or did anything to prevent "Hicks being apprised of the equity of the

heirs, (that is, to all the land which should | Monroe? The difference between the amount not be necessary to pay the decreed debt,) of the decree and that given by the private could not, by any agreement with such of them contract was greater in the latter than in our as were present, extinguish the equity of those case. But that circumstance has no effect on who were absent merely on the ground that the principle which equally applies to both they were co-heirs, and much less on the cases. And in some other respects, as already ground that they were infants. He could not asserted, our case is stronger against the purfairly extinguish their equity except by purchaser than the case reported: 1. In ours a chasing it from them or their agent, and he stranger made the private and attended the could not repell it except by some fair claim public sale as a volunteer friend of unconscious against the land, or at least against them per- infancy; in the other, an adult brother and sonally. If he intended to acquire the interest joint owner made the private sale and atof the absent heirs by the arrangement with Jo-tended the public. 2. In the reported case seph Wilson, (their brother,) he did not ac- the purchaser was informed and probably bequire it any further than the acts of Joseph lieved that the whole amount given by him were authorised or ratified by the others." was to be applied to the payment of debts for Again, on the next page, the court says: "Under these circumstances we cannot doubt that, if Hicks had retained the land, the complainants would have been entitled to reclaim their respective interests in it subject only to the proportioned burthen of $41."

And finally, on page 380, in disposing of the lapse of time, (15 years,) the court said: "And, as upon the pleadings, it is to be assumed as against him (Hicks,) that complainants had discovered the fact and their rights but a few months before the filing of their bill, and, as in cases remediable in equity alone on the ground of fraud or trust, time does not run as a bar until the facts for constituting the fraud or trust are known or should have been known to the party injured; and, as in this case, it does not appear that there was any circumstance known to the complainants which would have led them to such inquiry as would have put them in possession of the facts which occurred during the infancy of at least six of them-we are of the opinion that neither the statute of limitations nor the lapse of time can operate as a bar to their claim."

which the land was bound, and which, at least, equalled its value, and may, therefore, have believed a sale of the whole tract would be necessary, and that, consequently, the infant owners would be benefited by his private purchase at once of the whole; but in our case Jacob had no such equitable excuse-he knew that a sale of more than half of the lot would not be required, aud that nearly half the sum he gave for the whole of it would be paid to the widow, to be used and spent as she might choose. And if, in one case the private contract bound Joseph Wilson and prevented him, as probably others, from bidding at the public sale, in the other case the private sale bound up Bainbridge, and certainly prevented him, and almost as certainly others, from bidding against Jacob at the decretal sale. In the case cited from 9 B. Monroe, the court also decided that it was incumbent on the purchaser, as in every case of constructive fraud, to prove satisfactorily some sufficient ground for barring the resulting equity. Then, to show such repellant ground, the burthen of proof devolved on Jacob. He has furnished no such proof.

Then how can it be said that the principle of the decision in B. Monroe is inapplicable to our case? We have no doubt that the reported decision is right; and if it be, we cannot possibly see how the opposite decision in our case can be right.

It is evident that the leading and decisive principle by which this court was led to adjudge Hicks, as purchaser for the amount of the decree at the commissioner's sale, liable to the infant owners, was that—as he, in fact, by an unauthorized private contract, gave a larger price estimated as the value of the entire tract, and which showed that more was sold by the com- And as to the lapse of time also, our case is missioner than he was authorized to sell or much stronger than the other against its opwould probably have sold had there been no eration. In the latter there was nothing but such private sale, and that, therefore, the in- infancy, and the constructive admission, by fant owners, who were not bound by that pri- the answer, of the alleged non-discovery. In vate contract, still retained their equitable ours the same reasons are conclusively fortiright-consequently the purchaser thus acqui-fied by the nature of the case and by several ring the legal title held it by an implied trust, additional facts indisputably proved. to their use. In applying that principle to

Wherefore, as counsel for Simrall's heirs, the facts of that case, the court only recognized the undersigned feel constrained to ask the a long and well established doctrine of our court for a re-argument and thorough reconequitable jurisprudence. That was undoubt-sideration of this case; and, while they most edly the ground of the decision against Hicks earnestly desire, they cannot but confidently and adjudged, as itself alone, a sufficient ground hope, that their petition will be granted, for even if actual fraud had been an additional the following principal reasons: ground. Then, so far as Simrall's heirs claim relief in this case, in what essential feature does it materially differ from the case in 9 B.

1. Because they desire, and the case eminently deserves, a careful investigation and deliberate decision by a full court-only three

of its members participating in the opinion as rendered.

5. Because-as the most illlustrious old Judges of England commended their decisions 2. Because, for reasons herein suggested and harmonized the law by their prudent habit and others which would be urged in a re-argu- of disregarding the false pride of prompt and gument, they believe, and, with becoming re-infallible judgment and considering only their spect, declare that the decision sought to be judicial duty and reputation, and therefore reviewed is radically wrong, is inconsistent patiently, and even anxiously, re-hearing now with the principle of a former decision ap- and important causes until they were perfectly proved by the country, and is founded on satisfied-so this court, by following that safe deductions not only unsustained by the facts and wise example in such cases as this, would stated in it, but effectually repelled by other relieve itself of all unquieting apprehension of facts not stated and probably not noticed by judicial error and injustice, and would greatly the court; and they, therefore, respectfully commend its own decisions, exalt its own suggest that, should the court even adhere to character, and ensure that general confidence the same judgment, it is due to the parties, to and respect which the public interests require the court, and to the Kentucky bar that the that a court of the last resort should command judgment should be accompanied by a state- and possess. Moreover a reconsideration can ment of all material facts as appearing in the do no harm, and may do much good; for, if record, and should be made to rest on some it shall only confirm the opinion delivered, the other, and more tenable and consistent ground result will be more satisfactory and the decision than that on which the late opinion seems to more authoritative; and, if it should lead to place it. any essential change in the opinion, the court would be rescued from the possible imputation of hasty error, and would probably rescue suffering litigants from injustice.

3. Because, with equal confidence and respect, they believe and declare that these two decisions, so antagonistic in effect, are based upon a perfect parallelism of principle and essential facts, and cannot, therefore, both stand; and that, consequently, the dignity of our jurisprudence and the authority of our adjudged cases would be promoted by such changes of the one now within the power of the court as to make them appear to harmonize on the facts as they really are.

6. Because the decree of the court may be consistently reversed in such manner as to leave Jacob a handsome speculation on his little investment, and, at the same time, secure to Simrall's heirs a very comfortable portion of that patrimony of which, by an illegal act, he has so long deprived them. And surely, in 4. A reconsideration and decision by all such a case, if the court should be perplexed the Judges will make its final opinion, what-with doubt, it ought to incline to a decision so ever it shall be, more authoritative, more sat- harmless to the one party and so beneficent to isfactory to the unsuccessful party and to the the other. profession, and doubtless far more satisfactory to the court itself.



Having been elected three times successively to the House of Representatives of the United States from "the Garrard District," Mr. Robertson resigned the whole of his third term, and made the following Valedictory Address to his constituents through "The LUMINARY," of the 11th May, 1821.

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