The opinion of the Court was delivered by
Rogers, J.If the defendant was a trustee, it cannot be doubted that the plaintiffs could not recover, without payment or tender of the purchase money; but this the plaintiff denied, and the cause went to the jury on the ground that the defendant had been guilty of fraud, and the jury having so found, this cannot be distinguished, in principle, from Gilbert v. Hoffman, 2 Watts 66. No objection can be taken to the charge; for if the vendee alleged that he was purchasing for the children, when, in truth, he was purchasing for himself, it was not incumbent on the plaintiff to show, or the jury to find, that the plaintiff was actually defrauded out of any certain sum. If the defendant designed a fraud by using the falsehoods imputed to him, and gained his object in purchasing the land, without a fair competition, it was such a fraud as vitiated the sale.
The objection to the evidence cannot be sustained. After having proved the declarations of M’Kennan that he was bidding for the children, it was competent to show, by the testimony of others who were present at the time of the sale, that they left off bidding in consequence of a report that M’Kennan was purchasing the property for the benefit of the family. The other exceptions have not been pressed.
Judgment affirmed.