It seems to us that upon one view of the case, which was properly submitted to the consideration of the jury, the instructions of the Court were erroneous. His Honor having left it to them as a question of fact, whether the witness Skinner, at the public sale made by the executor, bid off the growing crop for him, instructed them that if they should so find, the executor was nevertheless not, in law, chargeable to the creditors of his testator for the amount which that crop actually produced in his hands, but only for the sum at which it had been so bid off. In support of this position it has been argued by the defendant's counsel that by the contract of sale the legal title in the crop passed to the purchaser, and was wholly divested out of the defendant as executor, and that, upon the retransfer, it vested in the defendant again, but in his individual character; that the alleged trust under which the purchaser bought could not be noticed in a Court of Law, as invalidating the sale, but was cognizable only in a Court of Equity, which would not allow the executor to derive gain therefrom; that these principles were distinctly recognized in Hoskins v. Wilson,20 N.C. 385, where there was a transfer from the vendor and retransfer from the vendee by deed, and that the same principles must apply in cases of transfer and retransfer by parol, if the nature of the property permitted it to pass *Page 344 without deed. We do not think that the question to be decided necessarily involves the enquiry whether at law the title of the growing corn passed to the supposed purchaser, and was immediately thereafter (519) revested in the defendant, or whether, notwithstanding such apparent or pretended sale and resale, it continued in the defendant until his final disposition of the corn. The question to be decided is, for what sum is the defendant chargeable to the creditors of his testator because of that crop of corn. Is it what he actually got, or only the price at which his agent bid it off? Assets in the hands of an executor or administrator are thus defined: "All those goods and chattels, actions and commodities, which were of the deceased in right of action or possession as his own, and so continued to the time of his death, and which after his death the executor or administrator doth get into his hands as belonging to him in the right of his executorship or administratorship, and all such things as do come to the executor or administrator in lieu or by reason of that, and nothing else shall be said to be assets in the hands of the executor or administrator to make him chargeable to a creditor or legatee." — Touchstone, 496. 2 Will's on Ex'rs, 102. Now the net price, which the defendant obtained for the corn, when ultimately disposed of by him, was obtained in lieu and by reason of goods of the testator which had come to him in his office of executor, and for this price he ought to be charged unless he had therefore rightfully disposed thereof at a less price. Nothing is better settled with us than that an executor cannot buy at his own sale. It would be a miserable evasion of the law, if he could rightfully do this through the intervention of an agent. What is prohibited directly cannot be sanctioned, if done indirectly. Suppose, therefore, the sale, or pretended sale to Skinner did pass the legal title, yet if in this transaction he were the agent of the executor and bought for the executor, it was a wrongful disposition, and the price is not the measure of the value of the corn wrongfully sold. An executor cannot be allowed to speculate upon and make profits out of the estate of his testator. Whenever it is seen that he has made profits thereout, these profits, as well at Law as in Equity, are assets for the satisfaction of creditors and legatees. So if he buys in a debt of his testator for less than its nominal amount, he shall be allowed only (520) what he paid therefor. And it will make no difference whether he buys in his own name or through the intervention of an agent.
If Hoskins v. Wilson has been regarded as authority for the position that a transfer by an executor to an agent, and a retransfer by the agent to the executor, changes the character of the executor's ownership, that he now holds absolutely what he before held in trust, we must be permitted to say our decision has been misunderstood. There is a great difference between the legal effect of sales, conveyances and other *Page 345 dispositions, when made by trustees, who are at law the owners of the property, and when made by those who, without having an estate therein at law, are entrusted with certain powers in relation thereto. In the case referred to, the trustee, whose conduct was arraigned, was of the latter description. Upon the petition of several tenants in common of certain slaves, an order was made by a competent Court for the sale. The sale was made, reported to the Court, and confirmed, and a conveyance in due form executed to the reported purchaser by the petitioners. Some of these petitioners were under age, and it was alleged that the purchaser bought in the slaves for the guardian of the infants, and, shortly after taking his conveyance, conveyed them to the guardian. We held that although the sale might have been set aside under the rule which prevails in Equity, that no trustee or agent of the parties to a sale shall be allowed to purchase for himself, yet the legal title of thepetitioners passed under their conveyance to the reported purchaser, and by his conveyance to the guardian of the infant petitioners. So in the case there quoted of Jackson v. Walsh, 14 Johns., 407, there was a sale of land made by an executor, and it was objected that under his deed the purchaser could not take the legal estate, because the purchase was made in trust for the executor. Here the vendor was not owner, and the estate did not pass from him. His deed operated at law as an appointment, and the vendee as the appointee under it took the estate from the devisor. The objection that the estate did not pass under this appointed at law was overruled, but it was distinctly (521) admitted that a court of equity would have readily listened to an application from persons interested in and aggrieved by this transaction, had it been made in due season, and have set aside the sale as one in violation of the settled law of that Court. But an executor holds the goods, which were of his testator as the legal owner, and although the law gives him this dominion for the benefit of others, yet a sale of these goods by him is made in the legal character of owner. Now no man can sell his own property to himself, and whenever an alleged sale, however disguised, is perceived to be of this character, it must be pronounced by every Court, which can look beyond the forms of the transaction, to be a nullity. Whether there may not be cases in which, because of the peculiar operation of the solemnities accompanying a pretended transfer from and retransfer to the executor, a Court of law may be incompetent to ascertain the truth of the transaction, we forbear to say until a necessity for a determination of that question shall arise. But in the case under consideration we have no difficulty in saying that there was no impediment of this character. If no consideration passed or as intended to pass from the bidder to the executor, there was no contract of sale. The transaction was in fact a sham, a pretended sale, *Page 346 and the law will so pronounce it. The property remained what it had been, the property of the executor.
The judgment must be reversed and a
PER CURIAM. New trial.
Cited: Stewart v. Rutherford, 49 N.C. 485; Stradley v. King, 84 N.C. 638;Tayloe v. Tayloe, 108 N.C. 73.
(522)