The bill in this case alleges, that the title bond from Little was delivered to the defendant, Walker, as agent of the complainant, to enable him to make sale of the land; but expressly avers, that it was not transferred or sold to him; and further alleges, that the payment of the purchase money, by Walker to Little, and the making of the deed from the latter to the former, was not with the knowledge or consent of complainant.
Walker, in his answer, denies these allegations; aiid the answer goes on to aver, affirmatively, that the transaction was with Palmer’s consent. There is no proof to this point, except what is furnished by the bill and answer ; and this raises the question, whether such an answer is responsive to the hill, and proof, of itself, requiring two witnesses, or one with corrobora*363ting circumstances, to overcome its force. Tbe averment of tbe bill is the averment of a negative, viz., that the taking of the deed to himself by Walker was without the consent of Palmer. If the answer had simply denied the truth of this negation, how would the case stand ? Would it be incumbent on Palmer to prove, in order to make out his ease, that he did not consent? To prove this description of negative averment, involves a moral impossibility, and is therefore not required, no matter from ■which party it comes. But, if Walker defends on the ground that Palmer did consent, that is readily susceptible of proof, and Walker must accordingly prove it. Palmer makes an averment which he is not bound to prove ; but it was material to his case, and Walker was bound either to admit or deny it; and, if he denies it, to verify that denial in the only way in which such a denial can be verified, by proving directly and positively the existence of a fact or facts incompatible with its claim to truth. All this Walker cannot get over by simply averring, as if in response, that which he is bound on his part to prove, namely, that Palmer did consent. This was strictly a part of his defence — matter in avoidance, which he must prove. 2 Story’s Eq. § 1529; 2 Phil. Ev. (C. & H.) 483 et seq.; 1 Stark. Ev, 377; 6 Ala. 718 ; 8 ib. 138 and 784.
The proof in the case, throwing out this affirmative allegation of the answer, goes clearly to show that Walker was only an agent for Palmer to make sale oí this land ; and the question now recurs, Could he take a valid deed to himself from Little, as against his principal, Palmer, under the circumstances of the case ? An agent to make sale of property can no more sell such property to himself, than a man can sell his own property to himself; for, in respect to such property, the agent stands in the place of the principal: he can only buy, then, by contract with his principal. — Story on Agency, 210 et seq.
The proof here does not show, nor conduce to show, a contract between Palmer and Walker for the sale of this land. Walker’s letter of December, 1845, says, in substance: “ I have sold your land conditionally to another person, for $500 ; if you are satisfied with the price, send or bring me your title bond from Little,” &c. The bond is sent pursuant to this request. This was no sale of the bond to Palmer, nor did it authorize him to take the land at the price named. Even if he had paid the *364purchase money, and procured a deed to he made to himself in some short time after the date of his letter and the receipt of the bond, such a proceeding would have been without authority from Palmer, and would have conferred no valid title as against him; because Walker was made an agent to sell to another, and could not therefore buy himself. — Story, supra.
But the proof shows, that Walker rented out the land in 1846 and 1847, as the agent of Palmer, and in 1848 he takes a deed to himself from Little, without further correspondence with Palmer, so far as we are informed. By this time, too, the land had appreciated and was worth from $600 to $800. If he had sold the land to another in 1848, at the price of $500, he would have been guilty of fraud or negligence towards his principal, even if his sale had been valid as respects the purchaser ; but, as between himself and his principal, the transaction cannot be supported, and he will be held to be a trustee of the legal title for, the benefit of his principal.
The payment by Walker of the purchase money due to Little, on the ground that he was bound as a surety on the notes of Palmer, would give him no other right than to secure himself.— The deed, which he took in his own name, would give him a lien to the extent of the money he paid, and if he had moneys of his principal in hand at the time, derived from rent or any other source, his lien would he diminished to the extent of the money so held.
The decree below is in accordance with these views, and is affirmed ; and the cause will be remanded, that it may go to the master to take and state an account.