majority">STONE, J.

The point madb on the sufficiency of the service on Mr. Cleveland, must,-we think, be overruled. We do not doubt that the true party was served with subpoena ; and hence we disregard that portion of the sheriff’s return, which affirms that “ Charles T. Cleveland [was] not found.” The variance is, at-most, a misdescription of the initial letter of Mr. Cleveland’s middle name. Under the principles ruled in Edmundson v. The State, (17 Ala. 180,) such misdescription is immaterial. — See Lynes v. State, 5 Por. 236.

The view we take of a question after considered, renders it unnecessary that we should say much on the subject of setting aside the decree .pro confesso. The chancellor attained the conclusion, that The defendants had betrayed great want of diligence; and we are of the same opinion.

We have not been referred to any adjudged case, nor have we found any, which is precisely like the present. This is not the case of a sale of trust property by a trustee to himself, nor of a purchase of the trust estate by the trustee from the cestui que trust. If such vere the facts of this case, the law applicable to it is well defined. — See Thompson v. Lee, 31 Ala. 304-5, and authorities cited ; Hill on Trustees, 157-8 ; Story’s Eq. Jur. §§ 321-2.

The bill in this case, in effect, charges that the account, *559for the recovery of which this suit is brought,-is for articles sold, to Mrs. Cleveland at-her instance and request. We treat the caseras-if-the'bill charged that Mrs. Cleveland purchased the. .goods-from the complainants by express contract. The language, of the bill is.: “ Your orators also jointly,furnished tlie -said Mrs. Elisabeth E. Cleveland, by her express desire, during the years 1855, 1856, and 1857, with various articles.-suitable and proper to her condition in life, and advanced .various sujns of- money to her, and for her benefit, in the same way..” But immediately in connection is found the averment, that all this was done “ under the faith .and credit of her separate estate.” The plain import of this.language is, that the complainants, of whom one is the trustee of Mrs. Cleveland, intended by the sale to create a charge on her trust estate. It is difficult, if not impossible, to distinguish, in principle, this transaction from the ordinary, case of a purchase of the trust estate by the trustee., “A trustee is. never permitted to partake of the bounty of the party for w-hom he acts, except uuder circumstances which would make the same valid, if it were a case of guardianship, . A trustee cannot purchase of his cestui que trust, unless under like circumstances ; or,, to use the expressive language of an eminent judge, a trustee may purchase of his cestui que trust, provided there is a distinct and clear contract, ascertained to be such after a jealous and scrupulous examination of all the circumstances; and it is clear that the cestui quo trust intended that the trustee should buy; and there is no fraud, no concealment, and no advantage taken by the trustee of information acquired by him as trustee.” — 1 Sto. Eq. Jur. §§ 321, 307; Fox v. Mackreth, 2 Bro. C. C. 400.

In the cas¡e of Thompson v. Lee, (31 Ala. 304,) we stated, as the result of the authorities, many of which are there cited, that contracts of parties, between whom there exists some peculiar confidential or. fiduciary relation, “ are regarded, prima facie, as constructively fraudulent; and the onus is cast on the party seeking to set them up, of -proving the bona fieles of the transaction, and of repelling the im*560putation of bad 'faith and oppression Which the law casts on him!*’ — See, also, Greenfield's estate, 14 Penn. State Rep. 504, et seq.; Taylor v. Taylor, 7 How. U. S. 199 ; Hill on trustees, 157, et seq.; McKnight v. Wilson, 2 Jones’ Eq. 491; Puzey v. Seneir, 9 Wis. 370.

While'we concede, that such a transaction as this may be upheld, if there be no bad faith or oppression on the iparlmf the trustee; still, ‘-under the principles above declared, the onus rests on the trustee, wdio seeks to enforce such a contract,'of repellihg the imputation of bad faith and 'oppression. Applying these principles to this case,íhe bilbmust be ¡pronounced defective, True, it avers that 'the articles wer-e supplied'to Mrs. Cleveland by her express desire; but it is'-not stated that the articles thus furnished '«were reasonably worth the-sum charged; nor, when bought for the <use of Mrs. Cleveland, does it in all cases appear that no .profit or enhanced price was charged against her. All the averments of the bill may be true, and yet the charges for the various items be unreasonable. The onus being on the complainants, they have not brought themselves within the rule.

The decree of the chancellor is reversed, and the cause remanded.

Citation profile

Relationships

How this case has been treated — in progress