delivering the opinion of the Court, after stating the case as above, proceeds:
After giving to the very learned argument of the plaintiffs’ counsel due consideration, we are unable to see any ground on which the action can be sustained.
1. Had the defendant, after he sold the land at an advance on his bid, expressly assumed to pay the amount of the sum received in advance to the plaintiffs, possibly this promise might be taken out of the rule nudumpadum upon the idea of a moral obligation, as where one promises to pay a debt, barred by statute of limitations, by reason of the fact that the defendant had been paid a considerable part of the purchase money.
But there is no obligation of any such promise, and this novel question is not presented.
2. There is no allegation of fraud; on the contrary, the defendant, throughout the whole transaction, both by himself and his agent, acted fairly, openly and aboveboard. True, it would have been more liberal to have consented to a sale on credit, instead of insisting upon a sale for cash, but he was not obliged to do so by any rule of law or of equity, and as the plaintiffs were in default by not paying as they were bound to do, he had a right to require a sale for cash.
3. Mr. Folk took the position that by the contract of sale before the payment of the purchase money, the plaintiffs acquired an equitable estate, and the defendant held the land in trust to secure the purchase money, and then as a *316trustee for the-plaintiffs. There can be no doubt as to the correctness of this position. He then insisted that the relation of trustee and cestui que trust being established, the Court will scrutinize very closely any dealing between the parties in regard to the trust fund. There can be no doubt as to the correctness of this doctrine, but the defendant has submitted to this scrutiny, and it is proved that he used no undue influence, but without making any delusory promises, simply urged the right to have his money.
4. It is claimed that defendant being a trustee had no right to buy at his own sale, and will be held to have bought in the land for the benefit of the trust fund. In the first place this was not a sale made by the defendant, but was made by the plaintiffs, with his concurrence, and in the second place, it was agreed that he might bid to prevent the land from going at less than his debt, and he expressly refused to agree to run the land up any higher; he complied literally with this arrangement, and it was the plaintiff’s misfortune that no other person was prepared to bid more, according to the terms of sale, which had been fully advertised by the plaintiffs, whose interest it was to make the land bring more if they could. So it comes back to the complaint, that the defendant was not liberal enough to allow the sale to be made on credit.
5. It is insisted that as plaintiffs had an equitable estate in the land, the agreement to let it be sold was not binding under the statute of frauds, because not in writing.
We are inclined to the opinion, that so long as this agreement was executory, to-wit, at any time before the land was actually sold and the agreement had been executed, by a surrender and cancellation of the title bond and notes given for the purchase money, the plaintiffs might have refused to allow the sale to be made, but it is too late to fall back on the statute of frauds after the agreement is executed and the equitable estate of the plaintiffs had been extinguished.
*317We conclude that by force of the sale and the cancellation of the notes and title bond, the defendant became the absolute owner of the land, and was well entitled to sell it for his own benefit, and was under no liability to account to the plaintiffs for the sum he received in advance of his bid.
Per Curiam. Judgment affirmed.