The decision of the special term on the merits, made by Mr. Justice Cox, (MacArthur & M, 338,) went on the ground that Latta alone attended and conducted the sale, and Fuller was absent and took no part in it; and that Fuller did not ratify the sale by signing the deed, because he signed it without any consultation with Latta, and without any information as to the state of affairs at the sale, or any other information than that furnished by the recitals in the deed, which was presented to him by Smith and executed at his request. The judge added: 'I think it proper further to remark that I have seen nothing in the evidence involving any imputation or reproach against the fairness and honesty of the purchaser.' It is stated that the affirmance by the general term was by a majority of the three justices, and proceeded on the same view as that held by the special term.
It is urged as one ground for setting aside the sale to Smith that he had so conducted himself in regard to the trust property as to have become incapable of purchasing and holding it as against the plaintiff; and that, being the creditor, he acted with Latta in fixing the terms of sale contained in the notice to the same extent he would have done if he had been his co-trustee, and wrote the body of the notice and selected the auctioneer, and was the organ of communication between Latta and Fuller in regard to the sale. We do not see anything in what Smith did in regard to preparations for the sale which disqualified him from becoming the purchaser. He was not agent or trustee for the plaintiff, nor was he attorney for the trustees or for Latta. He was an attorney and counselor at law, and in purchasing the note had acted for his sister-in-law, and bought it with her money as an investment for her, though taking the title to himself, and acting as her agent and trustee in regard to the matter. Latta was selected as trustee by Stearns, and Fuller by Linkins. Fuller was unacquainted with the duties of a trustee, and Latta did not know him or where he was to be found. Smith insisting on a sale, the notice was prepared in accordance with terms agreed to by Latta, and was signed by him, and Smith undertook to find Fuller, and found him and obtained his signature to the notice. B. H. Warner, the auctioneer named in the notice, was the same person named in the bill, and had been employed by Mrs. Derby and the plaintiff to endeavor to sell the property or to raise money on it to pay the note held by Smith. We are unable to find any cause in these transactions, or in anything else developed in the case, which, under the most rigid rule, disqualified Smith from becoming a purchaser of the property. This court held in Richards v. Holmes, 18 How. 143, that, under a deed of trust like the present, the creditor for the satisfaction of whose debt the sale is made has a right to compete fairly at the sale and may become the purchaser. No fraud in fact is alleged in the bill or shown in the evidence, no effort to keep bidders away from the sale, or to have a surreptitious sale, no want of the usual notice of sale, nor any conduct on the part of Smith inconsistent with what was due from him as a creditor to Mrs. Derby and the plaintiff. He waited nearly eight months after the principal of the note and the installment of interest payable at the date of its maturity became due, before he took measures for a sale. He allowed Mrs. Derby and the plaintiff to make every effort to sell the land at private sale, or to raise the money at a higher rate of interest than 6 per cent. to pay off the note. In July, 1877, Mrs. Derby wrote to him that she had tried in vain to get the money at a lower rate than 10 per cent., and asked him to have the debt extended at that rate at least until the fall, when she would sell the property if it brought no more than enough to pay the debt. In December, 1877, the plaintiff wrote to him that she had people working for her all the time trying to sell the ground, but she had failed so far to receive any offer which she though more to her advantage than a sale under a foreclosure, and that she would sell the land to him at 50 cents per square foot, he paying enough in cash to repay his sister-in-law and the taxes on the property, and giving her his note for the rest at 8 per cent. interest secured on the property. But the general taxes on the property were unpaid, and it had been sold for their non-payment, and there were special taxes against it, and Mr. Smith declined to purchase at the price asked. Prior to that, and in August, 1877, as his sister-in-law was pressing for some money, and in order to allow the plaintiff time to see if she could arrange the debt, he signed a note for $1,000 at 60 days, which Mr.