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[Vol. 31. the defendant were made before or after the fact of the revocation of the power became known to him. He made use of his power to convey to himself, without consideration, the property of his principal, and now claims it as his own, denying his duty to account to her for its value. The exercise of the power was a frand upon the rights of the plaintiff. The conveyances by which the defendant claims title to the premises belonging to the plaintiff are fraudulent, null and void, and the plaintiff is entitled to judgment setting them aside with the costs of this action."

The defendant having signally failed to establish the contention introduced in his amended answer, that the conveyances to the plaintiff, though absolute in form, were really intended as mortgages to secure the plaintiff against loss in becoming surety for the defendant, there is no other conclusion to which the trial court could arrive, without doing violence to a rule as old as the principles of equity itself. In the case of Davoue v. Fanning (2 Johns. Ch. *252), . Chancellor KENT fully developed the principle that a trustee could not purchase property of his cestui que trust for his own benefit, citing authorities reaching back to the early days of the eighteenth century. In the carefully considered case of Hawley v. Cramer (± Cow. 717), cited with approval by Chancellor WALWORTH in the case of Van Epps v. Van Epps (9 Paige, 237), we are told that “By the Roman law, guardians were prohibited from purchasing the property of their wards, agents and attorneys, the property entrusted to their care or management; and generally, all persons, having a trust or charge, were disabled from purchasing the property which was the object of such trust. And the disability was extended to their children, and other persons under their control." The same authority tells us that "in the case of the petition of Frances James, in bankruptcy (8 Ves. 352), Lord ELDON set aside a purchase made by a solicitor, who had been employed by the assignees in the business of the estate, although the sale was perfectly fair, and the purchase sanctioned by most of the persons interested in the estate; the amount bid being, at the time of sale, considered the full value of the premises. He observes, this doctrine, as to purchases by trustees, assignees, and persons having a confidential character, stands much more upon general principle than upon the circumstances of any individual case. It rests upon this, that the purchase

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is not permitted in any case, however honest the circumstances; the general interest of justice requiring it to be destroyed in every instance, as no court is equal to the examination and ascertainment of the truth in much the greatest number of cases.'

“In all such cases," say the court in the case of Hawley v. Cramer (supra), "the rule appears now to be fully settled that the purchase, however fair and honest it may have been, must be set aside on the application of any of the parties in interest; provided, such application be made within a reasonable time after the sale, which is to be judged of by the court, under all the circumstances of the case. And the fact that the purchase was made by the trustee through the intervention of a third person, or that the trustee purchased as agent for another, makes no difference in the legal effect of the transaction, or in the application of the general rule. A person who is incapacitated from purchasing on his own account cannot, in any case, or under any circumstances, buy as the agent of a third person."

"The rule of equity which prohibits purchases by parties placed in a situation of trust or confidence with reference to the subject of purchase," say the court in the case of Van Epps v. Van Epps (9 Paige, 241), “is not, as the defendant supposes, confined to trustees or others who hold the legal title to the property to be sold; nor is it confined to a particular class of persons, such as guardians, trustees or solicitors. But it is a rule which applies universally to all who come within its principle; which principle is that no party can be permitted to purchase an interest in property and hold it for his own benefit, where he has a duty to perform in relation to such property which is inconsistent with the character of a purchaser on his own account and for his individual use.”

In the case at bar the pretended sale was made to the son of the defendant, who was familiar with all the facts in the case, and who was charged with knowing the relations existing between the defendant and the plaintiff in this action; and purchasing with notice of the fact that the sale was made for the purpose of divesting his sister of the title to property which rightfully belonged to her, he could get no better title than the defendant, acting as attorney in fact, could have given to himself. The subsequent transfer from APP. DIV.-VOL. XXXI.

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[Vol. 31. the son to the father, instead of strengthening the title, served to weaken it, by showing the real intent of the parties, and indicating clearly that the transfer was merely nominal, and that the real purchaser was the defendant in this action. "Another class of constructive frauds," says Story's Equity Jurisprudence (§ 395), “consists of those where a person purchases with full notice of the legal or equitable title of other persons to the same property. In such cases he will not be permitted to protect himself against such claims, but his own title will be postponed and made subservient to theirs. It would be gross injustice to allow him to defeat the just rights of others by his own iniquitous bargain. He becomes by such conduct particeps criminis with the fraudulent grantor; and the rule of equity as well as of law is, Dolus et fraus nemini patrocinari debent. And in all such cases of purchase with notice courts of equity will hold the purchaser a trustee for the benefit of the persons whose rights he has thus sought to defraud or defeat." The case at bar comes fully within this rule, and the trial court in directing that the transfers, in so far as they affect the plaintiff in this action, shall be set aside, has but discharged its duty under the law. The power of attorney under which the defendant pretends to have acted, broad and general as were its terms, did not invest him with the authority to dispose of the property of the plaintiff for his own. benefit; or for the benefit of third persons; certainly not without some compensation to the client, this plaintiff. The authority to sell and dispose of the property was a delegation of a power to be used as the plaintiff herself might use it under similar circumstances, and it is not reasonable to suppose that the plaintiff, after quarreling with her brother, who had ordered her from the home of her father and thrown a glass at her, would transfer upwards of $50,000 worth of property to him without consideration, as was attempted by the defendant; and a court of equity is clearly within its province in declaring such an abuse of trust fraudulent, and in setting aside the transfers and restoring the property to its rightful

owner.

In the recent case of Williams v. Paine (169 U. S. 55), where the question arose as to the validity of a transfer of real estate under a joint power of attorney executed by husband and wife, the court say: "And, lastly, that the contract of sale was within the scope of

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the power of attorney, and vested in the purchaser an equitable interest or estate which, upon general equitable principles, a court of equity would not divest out of the vendee in the absence of fraud, and no fraud being alleged or shown, and the purchase money hav ing been received by Mrs. Ransom, equity would not set aside the sale," thus clearly indicating that the rule would be otherwise had the money not been paid to the person or persons executing the power.

It is true, of course, that the plaintiff came into possession of this property through a gift or advancement from the defendant, and if he were in need or distress she would owe him great obligations; but it is conceded that the defendant, an old man, has retained for his own use and benefit something like $50,000, and the entire proceeding seems to have been undertaken for no other purpose than to deprive this plaintiff of her share of the property advanced by the father, for the benefit of the son, who has been intimately identified with the various transactions, and appears to have the defendant largely under his control. We are entirely clear, then, not only that the trial court has acted within the rules of equity and law, but that substantial justice will be done by affirming the judgment.

All concurred.

Judgment affirmed, with costs.

JAMES SEAGRIFF, Appellant, 2. THE BROOKLYN HEIGHTS RAILROAD COMPANY, Respondent.

Negligencee-a street car colliding with a truck, which had been driven on its track, the street being incumbered with snow relative duties of each party.

In an action to recover damages sustained by the plaintiff by reason of a collision between a truck which he was driving and one of the defendant's street cars, it appeared that the street being somewhat incumbered by snow which the defendant had removed from its tracks, the plaintiff, who desired to drive around a coal cart in front of him, turned into the track of the defendant's road, before doing which, however, he looked ahead and saw a car, some two blocks away, approaching at a rapid rate, and that, as he was turning his team in front of the coal cart, his truck came into collision with the car.

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Held, that both the plaintiff and defendant were bound to exercise that degree of which a person of ordinary experience and prudence should have exercised to avoid the collision;"

That the court properly charged the jury that "the same degree of care must be exercised by one as by the other."

APPEAL by the plaintiff, James Seagriff, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 20th day of August, 1896, upon the verdict of a jury, and also from an order entered in said clerk's office on the 26th day of June, 1896, denying the plaintiff's motion for a new trial made upon the minutes.

Joseph L. Keane, for the appellant.

Thomas L. Hughes, for the respondent.

WOODWARD, J.:

An examination of the evidence in this case, and the rulings of the trial court, disclose no reason why the verdict of the jury should be set aside, and it follows, of course, that the judgment must be affirmed.

This was an action for personal damages sustained by the plaintiff by a collision with one of the cars of the defendant during the street railroad strike in February, 1895. The plaintiff was driving a truck upon one of the tracks of the defendant's street railroad in the city of Brooklyn, following a coal cart. There was evidence to how that the street was somewhat incumbered by the snow which the railroad had removed from its tracks, and the plaintiff was using the tracks of the company because of this obstruction. Desiring to go faster than the coal cart in front, the plaintiff, acting under the instructions of his employer, who occupied a seat beside him, turned out into the east-bound track of the defendant, intending to drive around the coal cart. Before doing so, the plaintiff looked along the east-bound track and saw a car approaching some two blocks away, and the car seems to have been approaching at a rapid rate. The evidence of the defendant is to the effect that the motorman saw the wagon turn into the east-bound track, but supposing the driver intended to cross, the car was allowed to proceed upon its While the car was some thirty or thirty-five feet away, the

way.