The bill seeks to call the defendant to an account, as executor of the estate of Jellis Fonda deceased, and, also, as executor of the estate of Henry V. Fonda deceased, and, generally, to make him account as trustee, acting for and on behalf of the plaintiffs, in the management and disposition of the estate, real and personal, of Henry FI Fonda,
The defendant admits himself to have been the acting executor of the estate of his father, Jellis F. and is ready to account for the personal estate, and the rents and profits of the real estate which he may have received. The great contest in the case is as to the character in which he acted, and the responsibilities which he has incurred, in respect to the estate, real and personal, of his brother Henry V. F. 1. He is charged with acting as executor of Henry, and that charge he denies. But it appears to be sufficiently supported by the testimony. One witness, Peter Fonda, says, that he took possession and disposed of a great part of the personal estate of Henry F". F. and offered to sell ° e to the witness several articles of farming utensils on the . farm of Henry V. F, and the witness purchased a wood , sleigh, and paid the defendant the price of it. So, it is in proof that he paid a debt due from Henry V. F.< at his * death, to John M'Carlhy, and another debt due from Henry V. F. to Marks Hockstader ; and in the last case, the debt was frequently demanded of him, and he was threatened to be sued for it. He received payment of a debt due from S. Kittle to Henry V. F.; and, in another case, he demanded. *404and received paj'ment, of a debt due from M. B. Wemph ' to Henry V. F. These multiplied acts are decisive proof of his election to assume the trust and act as executor. They would have made him an executor de son tort, if he had not been named an executor in the will, and the same acts amount to an assumption of the office of a rightful executor.
I shall, therefore, consider all his acts, in relation to the estate of Henry V. F. as the acts of a person who was at the same time clothed with the office of executor.
2. The bill charges that the defendant received, in March, 1799, from the government of this State, 6,500 dollars, as a compensation for the extinguishment of the right derived from Jellis F. to 2000 acres of land in the Royal Grant, and that the plaintiffs are entitled to a moiety of that sum, with interest. The defendant admits that the sum received was 6,250 dollars, but he claims title to the whole of it; and contends, in the first place, that his father, Jellis F. was only entitled, in his life time, to 1000 acres, inasmuch as Brant Johnson, who sold him the 2000 acres, owned only a moiety of it, and that the other moiety belonged to William Johnson, a brother of B. Johnson. He contends, in the second place, that his brother Henry, by his deed of the 3d of May, 1794, conveyed to him in fee, and absolutely, without any reservation or trust, his interest in the 1000 acres, for the consideration of 100 pounds, and which consideration was paid by a deed from the defendant to Henry, of the date of the 24th of April, 1794, of two lots in the ■Royal Grant, and containing the like consideration.
It is to be observed, as we proceed, that the defendant, and his brother Henry were joint and equal residuary devisees of their father, Jellis Fonda.
There is reason to believe that the deed of the 24th of April, was not given as the consideration of the deed of the 3d of May following. The want of concurrence in dates *405raises that presumption, especially as that want of concurrence is left without any explanation. In the next place, it is m proof, by the testimony of Simon Feeder, who took the acknowledgment qf the deed of the 3d of May, and delivered the deed over to the defendant on the same day, that Henry observed, at the time, that the deed to Jellis F. his father, was deficient. The certificate of acknowledgment bears date the 31st day of May, 1794, but the certificate of acknowledgment of the prior deed of the 24th of April,r bears date the 2d day of August, 1794, and both the acknowledgments were made before the same judge. The defendant was present when the acknowledgment of the deed of the 3d of May was taken ; and when the deed was handed to him, he observed that the consideration mentioned in the deed was not the value of the property, but he took the deed in order to save something for the children of his brother, as his brother was pretty much involved in trouble.
These observations of the parties made at the time of the execution of the deed, are evidence that the deed was not taken as an absolute purchase of the right of Henry to the 1000 acres; and they are evidence that it was taken in trust, and, probably, with a view to facilitate a compromise with the State, according to the charge in the bill. The testimony of Evert Yates, and James Lansing shows that, the deed of the 3d of May was not considered by the defendant as an absolute purchase of the right of Henry, and paid for, by the prior deed of the 24th oí April. When the executors of Henry met, soon after his death, the defendant told John Fonda, who asserted Henry’s interest in the money received upon the compromise, that Henry had no such interest, for his father’s title was incomplete, and he had since purchased up the Indian title of William Johnson, and considered it a speculation of his own. Here was no suggestion that he had actually bought in the right *406of Henry,,a reply that would naturally have suggested itself^ if such had been the fact.
Il is also admitted, by the answer, that the title of Jellis F. to the 2000 acres, had been conveyed by him, in his life time, to Abraham, G. Lansing ; and that as the title proved partly defective, the defendant and his brother Henry, as the representatives of their father, had conveyed to Lapsing, in 1793, other lands to the amount of 2650 acres, derived to them from their father, in lieu of the two thousand acres; and that Lansing had then released his right to the 2000 acres, to the defendant and Henry. The 2000 acres were thus received back into the funds of the estate, as a substitute for the 2650 acres which had been transferred ; a rid th e t wo bro th er s became equally e n tit led ,ast en an t s in common and residuan^devisees^f^Z|is^1Jo all thejight and interest, in law and equity, of their ancestor to the 2000 acres. The defendant, afterwards, on the 29th of I May, 1795, purchased of Moses Johnson, the heir of William Johnson, for 600 dollars, his right and title to 1000 acres, being part and parcel of the 2000 acres originally purchased by Jellis F. from Brant Johnson. The question, then is, whether the defendant did not make that purchase for the joint benefit of himself and his brother if eran/. If the deed of the 3d May 1794, was given to the defendant, in {trust for the purpose of facilitating the acquisition of a good 1 title, then the purchase from Moses Johnson, was in trust for their joint benefit. The defendant has not interposed and pleaded the statute of frauds against setting up a trust by parol, in opposition to the deed of the 3d of May, 1794; and we are left at liberty to judge of the truth and effect of the parol proof. I am strongly inclined to believe, that the deed was taken in trust, and that the subsequent purchase from Moses Johnson was made in trust, and that Henry was equally interested in the settlement made with the State, in March 1799 ; and that his representatives are entitled *407to a moiety of the payment received from the State, (which payment amounted to 6,500) after allowing to the defendant, the payment he made to Moses J. and a just indemnity for his expenses in procuring the satisfaction from the State.
Admitting that one tenant in common may, in some cases, purchase in an outstanding title, for his own benefit; yet where two de» visees are in fiossession of and, under an imperfect title, devised to them, by their com* mon ancestor, one of them cannot buy in an outstanding dabt, so as disseise or oust his co-tenant $ but such purl-chase will enure to their common bene* fit, subject to an equal contribution to the ex*1 pense», In some cases, says Littleton, (sec. 307) a release to one joint tenant shall aid the joint tenant to whom it was not made, as well as him to whom it was made. I will not say, however, that one tenant in common may not, in any case, purchase in an outstanding title for his exclusive benefit. ' But when two devisees are in possession, under an imperfect title, derived from their common ancestor, there would seem, naturally and equitably, to arise an obligation between them, resulting from their joint claim and community of interests, that one of them should not affect the claim, to the prejudice of the other." It is like an expense laid out upon a common subject, by one of the owners, in which case all are entitled to the common benefit, on hearing a due proportion of the expense.’ It is not consistent with good faith, nor with the duty which the connexion of the parties, as claimants of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and appropriate the whole subject to himself, and thus undermine, and oust his companion, It would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would be agains t the reciprocal obligation to do nothing to the prejudice of each other’s equal claim, which the relationship of the parties, as joint devisees created. Community of interest, produces a community of duty, and there is no real difference, on the ground of policy and justice, whether one co-tenant buys up an outstanding incumbrance, or an adverse title, to disseize and expel his co-tenant. It cannot he tolerated, when applied to a common subject, in which the parties had equal concern, and which created a mutual obligation, to deal can*408didiy and benevolently with each other, and to cause nb harm to their joint interest^/1 have no doubt, therefore, that in a case like the present, and assuming what the evidence warrants us to assume, that the deed of May, 1794, was taken by the defendant for trust purposes, that the purchase from Moses Johnson ought, in equity, to enure for the common benefit, subject to an equal contribution to the expense.
3. The plaintiffs are entitled to redeem the lands mortgaged by Henry F. Fonda to Joseph Yates, and to make the defendant account for the proceeds of such parts of those lands as have been sold by the defendant, (which sale the plaintiffs are willing to confirm) and for the rents and profits which have been received, subject to whatever payments have been actually made by the defendant upon that mortgage. The lands included in the mortgage, purchased in by the defendant, and remaining unsold, ought to be conveyed to the plaintiffs, free from incumbrances."
The defendant admits, that he purchased and took an assignment of this mortgage, on the 4th of February, 1800, and proceeded to advertise and sell the mortgaged premises, under a power contained in the mortgage, in August, 1800, and that he became the purchaser himself. The defendant, in his answer, denies that be ever said, or admitted, that he bought in and held the mortgaged premises for the benefit of the plaintiffs, but alleges that he meant to reimburse himself for the mortgage debt, and then pay the debts still owing by the estate of Jellis Fonda, deceased, and then appropriate the surplus, “ according to his own discretion,” to assist the plaintiffs and their mother. He admits, however, that the sale under the power was void, owing to the minority of Henry V. F. when he gave the power; and in his letter to W. Hammond,' of the 1st of May, 1804, he says, that he always intended to account for the mortgage fo the heirs, or executors, of his brother. Whatever his *409intentions on this subject might have been, (for the answer and this letter do not entirely agree,) yet the purchase under the sale, was in judgment of law, in trust for the plaintiffs. Being executor of Hendry V. F., he had no right or power, to extinguish the morfgáge, or other debts, for his own benefit, or to traffick with the estate for his own emolument. If a trustee or executor compound debts or mortgages, or buy in for less than is due, he shall not take the benefit of it to himself, for when he takes a trust, he is to take it for the benefit of the cestui que trust. He cannot be permitted to raise in himself, an interest opposite to that of the party for whom he acts. This is a fundamental doctrine in equity. (2 Fonb. b. 2. c. 7. sec. 7.) The haste with which that purchase of the mortgage was made, and the sale under the power effected subsequent to his brother’s death, affords a very unfavourable specimen of the spirit with which he dealt with his brother’s estate.
An executor or teustee cannot buy in a mortgage judgments, or other debts of the testator, or cestuique trust, for his own benefit; nor can be deal or traffic with the estate for his own emolument.The defendant says, in his answer, that he purchased up a judgment of Adam Snell against Henry V. F., on the 4th of September, 1800; that he revived the judgment in 1814, against the plaintiffs, and sold a lot of 100 acres in.the Royal Grant covered by Yates’s mortgage, for 853 dollars and 97 cents, and purchased it in himself. He purchased in the judgment in 1800, for 445 dollars and 37 cents.
Here was also a breach of trust; for an executor is not permitted to buy in a debt, and then, afterwards, make that debt the means to sell, and buy in the property for his own benefit. The defendant can only be allowed, in his account, for the payment of whatever was justly due to Snell, when he took the assignment of his judgment in 1800, and he must account for the price for which the lot was sold under his judgment, with interest. The judgment of Snell was satisfied, by his purchase of it, as executor, in 1800.
4. Another charge in the bill, is, that the defendant, in. *410October, ISO7, fraudulently sold, and purchased in; on his . own account, a farm of 300 acres and upwards, at Caughnawaga, belonging to the plaintiffs, as children of Henry V. F. It is charged, that the defendant sold, under two small judgments, which had been obtained against the plaintiffs, as heirs and devisees of Henry H. F., and which judgments he then claimed by assignment, one entire farm, worth, at the time of the sale, upwards of 10,000 dollars ; and that the circumstances attending the sale denote premeditated fraud. This is the gravest charge in the bill, and one that is most satisfactorily supported.
The answer admits the existence of a, judgment of M. B. Wemple, of the 7th of August, 1807, for 321 dollars and 30 cents, and another judgment of Peter Putnam, of the 3d of Avgust, 1807, for 265 dollars and 48 cents, and that the farm of 272, 1-2 acres, was Sold, by executions on those judgments, on the 28th of October, 1807, and purchased by the defendant, for 520 dollars ; and he says, that he purchased fairly, on his own account, and without any trust in favour of the plaintiffs, and denies, that he had any interest in those judgments, or any control over the executions. He says, that the farm was, at the time, subject to a mortgage to John J. BeeJcman and himself, of the 10th of January, 1799, for 1,347 dollars, and toa judgment in favour of John Davis, for 250 dollars, and to the balance of a judgment in favour of Stevenson and Douw, for 135 dollars and 32 cents. These two latter judgments, he says, had been assigned to him, in September and November, 1799, and that there was due, at the time of the sale, on those three incumbrances, 2,937 dollars and 66 cents. He says, further, that he then owned Beekman’s interest in the mortgage, in right of his wife, and that he purchased to secure his three incumbrances, and some other debts of his brother Henry, which had been assigned to him.
It is abundantly in proof, that the farm was worth about 10,500 dollars, at the time of the sale ; and that from two *411to eight or ten acres from thé east side of it, would, upon a sale have satisfied the two executions. Let us now see how. far this answer is contradicted by the proof.
The defendant, at the time of the sale, did own the judgment and execution of Wemple. It is proved by Wemple himself, that the defendant sent proposals, before the sale, to him, to buy his judgment, and take an assignment of it, and he said, he intended to use it for the benefit of the plaintiffs^ W. went to the house of the defendant, and agreed to sell and assign the judgment to him, who'paid fot it, 247 dollars and 71 cents. He then agreed to meet the defendant, near the place of sale, the evening before, to execute the assignment, and the defendant requested the witness to keep the meeting a secret, for fear the neighbours would get the land from him, and the children would not be able to have it. They met, accordingly, at the place appointed, and the witness executed the assignment, and when the defendant took it, he said, he took it for the purpose of purchasing the lands for the benefit of the plaintiffs, the children of Henry. The day after the sale, he told the witness, he had purchased the farm for the children. It is further proved, by James M'Intyre, the sheriff, that on the day of the sale, he received the assignment of Wemple’s judgment, in satisfaction of the execution ; that the assignment bad been executed before the day of sale, and he received it, either from the defendant, or from D. Cady, the attorney to the execution.
Here, then, the answer is falsified in one essential point. It is also contradicted by the proof, in respect to the circumstances of the sale, and the declared purposes under which the defendant became the purchaser. We have already observed, that he frequéntly declared to Wemple, that he took the assignment of his judgment, and made the purchase, for the benefit of the children-
The defendant, before the sale, declared to Abraham Fan Horne, that he would be a father to the plaintiffs, and take. *412can of their property. This led that witness to infer, that h® would purcliase in the farm for their benefit. He said to Jacob Van Alstyne, on the day of sale, that he gave for the farm 520 dollars, and should not have got it so, but he bought for the children, and that he told those who attended the sale, that he intended to purchase, for the benefit of the children of Henry. Daniel Cady was the attorney to the two executions, and he attended the sale, and bid up to the amount of them; he heard nothing about incumbrances, and was informed that the defendant had the charge of the plaintiffs, and was, in some measure, providing for them ; he says, that if he had not supposed that, he never would have suffered the farm to have been struck off for the amount of the executions.' M‘Inlyre, the sheriff, testifies, that at the sale, one Rust was present, and bid once or twice, and then asked, if the property' was to be bidden off for the benefit of the children of Henry, and that either the defendant, or the witness replied, that it was, and Rust then desisted from bidding. If the witness so replied, it was from express information received from the defendant; for, before the day of sale, and on the morning of the day' of sale, the defendant told the witness, that he intended to purchase in the premises for the benefit of the children of Henry. He says, that the farm was not declared to be sold, subject to any incumbrances. It appears, also, by the testimony of Peter Putnam, that on, and after the day of sale, the defendant declared, that he meant the farm for the children. The defendant made the same declaration to Evert Yales, and observed, that he had purchased the farm for the benefit of the children, and that they should have it, upon paying him back his money, with interest;, and it was for that reason that the witness sold him thirty acres adjoining the farm so purchased, and which thirty acres had been detached from the farm, by means of a sale under a loan office mortgage.
These witnesses prove the answer to be false, in respec *413in the character which he had assumed; and considering that he was the owner, at the time, of one of the judgments, and had the control of one of the executions, and that a large and valuable farm was sacrificed under false pretences, when only a very inconsiderable part of it would have satisfied the executions, we are required, by the most obvious principles of justice, to make the defendant account for that pur-, chase. And it is worthy of notice, that the defendant admits, in his answer, that he visited his brother a few weeks before his death, and that the latter expressed great solicitude about his children, when the defendant voluntarily told him, he would lake care of his children. He thus stood, in all his subsequent transactions, in loco parentis, and was under the most sacred obligations, to execute the trust with parental fidelity. to the avowed character in which the purchase was made, and the alleged fairness of the sale. It is satisfactorily shown, that the defendant did assume to buy, in the character of trustee, for the plaintiffs, who were, then infants, (the one being fifteen and the other twelve years of age,) and did, by that means, stifle competition, and was enabled to buy in the estate, for a comparatively nominal sum. To appropriate the whole purchase afterwards to himself, as a speculation, was a gross breach of. his duty, as a trustee. It necessarily follows, that he is answerable for that purchase,
5. The defendant sets up, as a debt against the estate, a mortgage executed by II. V. F. to J. J. Beekman and himself, on the 10th of January, 1799, on the Caughnawaga farm, to secure the payment of 157/. to Beekman, with interest from the 21st of June, 1797, and of 380/. to the defendant, with interest from the date. This mortgage debt was one of the incumbrances upon the farm, which the defendant says induced him to make the purchase; and he says, the mortgage debt to him was founded upon notes to that amount, which he previously held against Henry, and which notes were then delivered up.,
*414There is reason to believe, that this mortgage debt had been satisfied even prior to the death of Henry ; or that it was originally created either by imposition, or upon some secret trust not disclosed,, or to meet future responsibilities not incurred.
When the defendant met with the other executors of Henry, shortly after his death, he exhibited a statement of the debts due from the estate oí Henry ; and he admits that it was a statement of debts owing by Henry, “as far as the same had then been ascertained.” In that statement, he entirely omits his demand under that mortgage, and there is no accounting for the omission. He mentioned the debt due under that mortgage to Beeknian, amounting, as he stated, to 160/., and his attention, therefore, must have been directed to that very mortgage. One of the witnesses who was present when the statement was produced, (James Lansing,) said, that the defendant was asked, if he had any claim, and he replied, that was a matter of no consequence. There is another document in proofj still more decisive; and that is the book of accounts of Henry V. F., containing entries in it, admitted to be in the handwriting of the defendant. In one place, the defendant writes against an account of Henry against him, “By cash in full, September 1st, 1796*)” and in another place, on the credit side, by your note of let and 2d September, 60/. And this credit is given as of the date of June 21, 1797. And in another place, of the date of April 13th, 1799, the defendant adds, “ by a settlement made, and lam due on this account to my brother a balance of All. 19s. Id. To my note for the above, in full, 40/.” And then he adds-below, “To an abatement,.....£1 10 0
“ To balance short, .....0 9 1
£41 19 1”-
Could the mortgage debt be subsisting, after this settlement ? Can this note of 40/., which he thus applied, only thirteen days before his brother’s death, as a set-off, be the *415100 dollars, which he says he lent to his brother a few days before his death? Can that 100 dollars be still a subsisting debt ?
These entries, in his own hand, and the omission of either of those debts in the statement, are sufficient to put him upon the proof of any debt originally due to him, under that mortgage, or otherwise. The defendant ought, therefore, not to be allowed, in accounting before the master, for the mortgage debt of 380Í., on the foot of the mortgage, and he ought not to be allowed any part of that debt, or any other debt of his own, against the estate of Henry, without satisfactory proof of its subsisting, at the death of Henry. He ought, also, to be decreed to convey the Caughnawaga farm to the plaintiffs, free from incumbrances, and he ought to be charged with the rents and profits, and credited with expenditures for actual repairs, and with moneys actually paid by him for, and in the purchase of debts really due by Henry, and also with the value of the dower of the widow of Henry in the farm, not, however, exceeding the sum paid by the defendant, upon the conveyance to him, by her and her husband. The defendant ought not to be absolutely precluded from showing the exis'ence of any debt due from Henry to him, provided, he can prove it to entire satisfaction, independent of the mortgage, or note, which he might produce. He ought to be put to show the circumstances, and how it arose, and when; and to reconcile its existence with the entries made by him in his brother’s book. “ A bond or mortgage,” says Lord Talbot, in Piddock v. Brown, (3 P. Wms. 289.) “ is, prima facie, good evidence of a debt. But, whenever there are manifest signs of fraud in the obligee, he ought to be put to the proof of actual payment; and though he may happen thereby to lose some part of the money really due to him, for want of being able to make sufficient proof, this is but a just punishment of him for the fraud.’’
Nor do I think that the defendant ought to be allowed, *416under the circumstances of this case, for what might, otherwise, be deemed beneficial improvements made by hi in on the Caughnawaga farm. He entered in his own wrong, and held under a claim of title, procured by fraud, and he is not entitled beyond the amount of his actual expenditures. Every thing beyond that was gratuitous. A fraudulent possessor is never allowed for beneficial improvements. (2 Johns. Ch. Rep. 602.)
The defendant ought, in addition to the items already noticed, to be directed to account, generally, relative to the real and personal estates of Jellis F. and of Henry F. F., deceased, and also of Jannetje, the widow of Jellis F. He oyght also to be examined, if required, upon oath, and to produce all papers, in his custody or power, relative to those estates; and to be allowed for actual expenditures, for board, clothing, and education of the plaintiffs, or either of them ; but all affirmative matters stated in the answer, and all matters set up by way of avoidance, or discharge, and which are competent, as a defence, must be satisfactorily proved. I shall direct a reference to a master, to take and state an account, upon the principles, and under the directions already -declared.
Decree accordingly.