delivered the opinion of the Court s
The only question raised by the bill and answer, as we understand them, is, did the appellant, by the arrangement made with his brother, Thomas, and the subsequent bidding in and conveyance of said property by said trustee, Price, acquire such a lien on said real estate, as against appellee, as will in law entitle him to hold it until the loan of $1450 is refunded to him,—in other words, will a court of equity enforce the arrangement alleged to have been made between the husband of appellee and appellant, as against her.
It is conceded that lot 5 was the separate property of appellee, the title of record being in her at the time said trust deed was executed, when the alleged arrangement was made, and when the property was sold by the trustee. There is no pretense that appellee in any way authorized her husband to pledge the same or encumber it to secure any indebtedness, or that she ever ratified any act of his in that regard. In fact, the proof clearly shows that by design of her said husband she was kept in ignorance of said arrangement with appellant and of the sale and trustee’s deed, and that she only learned of the same shortly prior to the filing of this bill. She continued to pay the interest on the "prior incumbrance until July, 1883. The debt due to Harty was a personal debt of her husband, and he told her before the maturity of the note that he had paid the same. The evidence shows that she would have been amply able to pay off all incumbrances against said property, including the Harty debt, if her husband had shown a willingness to join her in a mortgage or trust deed for that purpose. The recitals in the deed from Price, trustee, to appellant, show that on August 9, 1879, when said $1450 loan was made, the trust deed had not been foreclosed. The property had not been advertised. The Harty debt was not yet due. There is much evidence to the effect that Thomas Rogers in fact did pay that debt before the sale actually took place; but whether he did or not, -there can be no serious question that he was prepared and intended to pay the same out of the money borrowed from appellant, and that he suffered the property to go to sale for the sole purpose of putting the title in appellant, not merely to secure the amount bid for the property, but the $1450.
Independently of the fact that in all these matters Thomas Rogers acted for appellant, and the latter must be held bound by .the fraudulent conduct of the former, we are unable to discover upon what principle of law appellee’s property could, through the trustee’s sale, be pledged as security for her husband’s debt without her consent. No theory has been suggested, and none, we believe, can be, under appellant’s own answer and testimony, whereby he could maintain a lien for more than the amount bid in his name at said trustee’s sale, and it is by no means clear that he could d-o even that. It seems, however, that by the sale of one-half of said lot he has been fully reimbursed to that extent, which by the decree below he is allowed to retain. All that he is required to do is to quitclaim the property still in his name to appellee. This decree is as favorable to him as, under the law and evidence, he could expect.
Decree affirmed.