The leading question in this cause is as to the effect of the notice published by Gelston, Osgood, and the appellant; whether the promise to release, contained in it, was intended to embrace the right (if any exists) of the appellant, under the deed of the 1st of December, 1803, as well as the right of the three trustees under the deed subsequently executed.
The existence of the first deed was probably not known to two of the trustees at the time the last was executed, and must have been a transaction solely between the appellant and E. Livingston, to whom all knowledge of it had been confined, and, of course, at the date of the last deed it was not viewed by them as an obstacle sufficient to prevent its operation, the first deed sever having been acted upon. This is the most reasonable inference to be drawn from the conduct of the appellant in causing the last deed only to be recorded, before this controversy commenced, and remaining silent as to the first deed, until after the marshal's sale. The testimony of those who attended that *564gale conclusively supports the fact, as but one out of nine persons who were present, knew of even a suggestion by the appellant that he claimed a right to the premises under it, and the testimony of that witness stands so directly impeached as to destroy his credit altogether. The conversation with the appellant, stated by Goodman to have taken place several weeks before the sale, may have alluded to the first deed of trust, but was evidently never intended as an assertion of right under it, and was accompanied with conduct and declarations on the part of the appellant, repelling the idea of such an intention 5 and, on the contrary, rather indicating a desire to induce a purchase, than prevent a sale, and is too indistinct and uncertain to establish the fact of notice. It cannot be supposed that he would exhibit maps, and speak of the peculiar advantages of those lots, with any other object than to forward the sale. The same witness also states that nothing was said which was calculated to prevent his becoming a purchaser. Had he intended to purchase, he ought not to have relied on this loose conversation as proof of a parol .notice.
Without, therefore, adverting to the objection that such notice is not in issue in this cause, its sufficiency to destroy or invalidate the printed notice might well be questioned. Svgden, in his treatise of vendors and purchasers of estates, in remarking on sales by auction, (page 21.) says, great care should be taken to make the particulars and conditions accurate, for the auctioneer cannot contradict them at the time of sale, such verbal declaration being inadmissible as evidence. I do not cite this to show that the rule on this subject is inflexible. It may, perhaps, be correctly departed from, in some cases, where the particular condition is equivocal, or where it is undeniably proved that the purchaser had, in the most explicit manner, particular personal information given him of the encumbrance previous to the day of sale. Such notice, however, has not been satisfactorily brought home to the respondent in this case. It was incumbent on the appellant, in that conversation, explicitly to have asserted his claim; and the written notice published by him with the other trustees, ought to have contained an explanation, and an avowal of his pretensions under the first deed, without which Ms present claim gives a fraudulent operation to *565the notice, by misleading innocent purchasers, and, therefore, ought not to be tolerated even in a trustee.
I do not, however, believe, that the appellant intended fraudulently to conceal the first deed, at the time the notice was published. I am rather inclined to think, as before stated, that he considered it as an abandoned and inoperative instrument.
Edward Livingston, the same grantor, executed this second deed for the same premises, and the appellant accepted the trust, with Osgood and Gelston, with perfect knowledge that no act had been done to prevent the operation of it. He knew that the first deed had lain dormant, and did not hesitate to join in the publication of the notice; no doubt, at that time, with a bona fide intention of releasing to the purchasers any claim he might have on the premises. His present claim, as trustee, under the first deed, appears to be an afterthought; and may, perhaps, have arisen from the small amount for which the lots were sold.
The conduct of the appellant, and Edward Livingston, having thus operated as a concealment of the deed of the 1 st December■, 1803, and the trustees in the deed of the 24th December, 1803, having accepted the trust, and acted under it, so far as to publish the notice promising to release the purchasers, at the marshal’s sale, on which the respondent must have relied at the time, and the trusts in both being substantially the same, the last deed ought to operate as an extinguishment or surrender of the trusts under the first deed; at least, so far as to prevent the appellant, in the release required of Mm, to reserve any right under it, contrary to the true interpretation of the notice; and, in the view I have taken, contrary to his intention at the time of the publication of it.
But, it is said, that if the appellant is obliged to perform, he will be guilty of a breach of trust. That is not so; the notice published by the assignees, promising to release to purchasers, and inserted in the advertisement under the fi.fa* became thereby a condition, incorporated in the sale, and cannot be a violation of the trust, but rather in furtherance of the execution of it. It was, in fact, adopting the marshal’s contemplated sale as their own act; for they might make him their agent to sell the property, a fact which this court are warranted to presume, from the notice itself. His selling wan in pursuance of the powers given the trustees by the grantor, which concur - *566rence in the sale, as their agent, was not inconsistent with his duty as marshal, under the fi. fa. and the avails of the sale being for the benefit of the cestui/ que trusts, it ought to be deemed an execution of the trusts contained in both deeds. The making of partition was only secondary, and subservient to the interest of the cestui/ que trusts ; and, being under their control, it was competent to the respondent to waive that. Having thus obtained the right of those entitled to the beneficial interest, a consummation of this sale, according to the conditions published by the trustees, cannot be withheld, on the ground, that calling on the appellant to release, would be obliging him to do an act in violation of his trust.
A sale made at auction, and under process of law, ought not to be invalidated for mere inadequacy of price, without additional circumstances to justify it. This principle is stated by Lord Eldon, on the rehearing of the case of White v. Damon, (7 Ves. jun. 34.) and in the case of Burrows v. Locke, (10 Ves. jun. 474.) It is necessary to secure proper confidence on the part of purchasers at sales of this description, and to, render titles, if fairly obtained, certain, and not liable to be impeached by the various opinions as to its value. In the case now before us, no allegation of fraud appears. There is no part of the respondent’s conduct which will warrant the suspicion of unfairness. He was the highest bidder, in the presence and hearing of the appellant himself, and of a number of other citizens, who might have enhanced the price upon.him, if they had been so disposed. The respondent having thus correctly obtained the marshal’s deed for the premises, with the knowledge of the trustees, and purchased under their promise to release to him, the appellant ought, in good faith, to execute such release, without any proviso or condition, which could not have subjected him to ahy responsibilities; and this, according to the view I have taken of the subject, it was his duty to do as trustee. He, therefore, ought not to have refused to execute the release when tendered to him, by which improper and unnecessary refusal he has made himself liable for costs. My opinion, accordingly, is, that the decree of his honour the chancellor be affirmed in all its parts.
' 'Van Ness, J. was of the same opinion, except as to the decree *567being affirmed with costs, which he thought ought not to be allowed.
Spencer, J. concurred in the opinion of Mr. Justice Yates, that the decree ought to be affirmed with costs.
Thompson, Ch. J. not having heard the argument of the cause, gave no opinion.
Sanford, Senator.My opinion is, that the decree of the court of chancery ought to be affirmed. Without attempting to discuss the cause at large, or to answer the various objections which have been made to the decree, I will, with as much brevity as possible, state the principal grounds of my opinion.
If the deed of the 1st of December, 1803, was ever valid at all, it appears to have been waived, or relinquished, by the appellant, by the public notice of the 12th of July, 1805, subscribed by himself, Gelston, and Osgood. That notice ivas an engagement that the subscribers would release all their right, title, and interest, in the property, which was about to be sold by the marshal, if it should be required by the purchasers. It was also, by fair construction, an assurance that the assignees, subscribing the notice, had no title or claim in themselves, incompatible with that which they engaged to release. It would not be supposed, by those who might read this notice, that either Gelston, Osgood, or the appellant, had a latent title, which would defeat, not only the marshal’s title, but also their pwn joint title. Such a supposition would be totally repugnant to the tenor and nature of their, engagement, and would Imply that they intended to practise a deception. It is too much to be supposed that they promised one thing, in terms, and, at the same time, made a silent reservation of another, which would render the' promise ineffectual and useless. The notice clearly implies, .¿hat the assignees had no title adverse to that which they promised to convey. If either of these assignees had any separate claim, or latent title, which he desired to retain, it was his duty to reserve or except it expressly, in the written notice. It would be against all equity and justice, that pne of them should now set up a claim not disclosed in the notice, though then existing, and totally destructive of the title *568which he engaged to convey. I therefore regard this pub?, lie notice as a declaration by the assignees, that they, or either of them, had no claim to the lands of Edward Livingston, inconsistent with their own title as assignees. The appellant must be bound by this act, and cannot, afterwards, set up a latent title, which he did not then assert.
The objection of inadequacy of price, is not applicable to this case.
March 24th 1814.
The court being unanimously of opinion that the decree of the court below ought to be affirmed, it was, thereupon, ordered, adjudged, and decreed, that the decree of the court of chancery be, in all things, affirmed; and that the appellant pay to the respondent one hundred dollars, for Ms costs and charges, in and about Ms defence in this court, and that the record be remitted, &c.
Judgment of affirmance?