Cheshire v. Booe, 16 N.C. 22, 1 Dev. Eq. 22 (1826)

Dec. 1826 · Supreme Court of North Carolina

16 N.C. 22, 1 Dev. Eq. 22

Jonathan Cheshire, v. George Booe, Administrator of Thomas Garrawood, and the distributees of said Garrawood.

From Rowan.

It seems that fraud practised by cestui que trust, will avoid a sale honestly made by the trustee.

OrigiNAI Bill) the allegations of which were that the Plaintiff had purchased of the Defendant Booe a negro girl, belonging to the estate of his intestate. That the negro, at the time of the sale, was laboring under a mortal malady, of which she soon after died. Tht the Plaintiff was not aware of her ill health at the time of the sale, or at the time he paid the purchase money, charging that if the Administrator had no notiee of the the unsoundness of the negro, the fact was well known to the widow of the intestate, and to his children, who had concealed the defect, and used many means to induce the Plaintiff to purchase. The bill prayed that the purchase money might be refunded to the Plaintiff, and he be indemnified for the charges he had been at in taking proper care of the negro.

The Administrator, by his answer, denied all knowledge of the negro’s unsoundness, and stated, that when applied to by the Plaintiff, at the sale, on this subject, he referred him to one Glascock, who was present, and had hired the girl the year before.

The answer of the widow of the intestate, which was referred to by that of the children, denied any fraudulent concealment, and averred, that the girl, although she had been unwell the year before the sale, was, to the best of her judgment, healthy at the time of the sale.

The proofs read at the hearing were very voluminous, but it is not thought necessary to repeat them.

No Counsel appeared for the Plaintiff in this Court--Murphey and Nash for the Defendants-

The opinion of the Court was delivered by

Hall, Judge:

Taking it for granted, that fraud in the cestui que trust, will avoid a sale honestly made by the trustee, and therefore assuming it as a duty to look into the testimony in this case, Í have examined the depositions, and am of opinion, that it is altogether unnecessary to give the evidence in detail — much of it is irrelevant, some little of it seems to throw a suspicion upon Mrs. Garrawood, but by no means sufficient to establish such a fraud, as would entitle the Plaintiff to relief. It seems to he clearly established, that the negro girl in question was a healthy one, until she was hired out to Glasscock — during that, year, it seems, she was somewhat sickly — some part of the time she was with Mrs. Garrawood) particularly a few days before she was sold j but it does not appear that Mrs. Garrawood had knowledge of her complaint and concealed it. Indeed, it does not appear what was the nature of the complaint she died of, or what her complaint was when she was sold. I think the bill should be dismissed with costs, except as to Mrs. Gar-rawood, who must pay her own.

Birr dismisses.