disturbed, unless it was made fraudulently, or it is shown that the mortgagor or owner of the equity of redemption was damaged thereby. Ibid. § 1182. Trustee may depute agent to attend sale.- In the absence of a statute requiring the trustee to be personally present at the sale, he may depute a competent agent to attend the sale and conduct it; and such sale will be valid. Connolly v. Belt, 5 Cr. C. C., 405 (S$ 1164–69). 5. Who May Purchase at Sale under Power. SUMMARY- Trustee purchasing from intermediate purchaser, § 1183.- Beneficiary under trust deed, § 1184.- Purchaser's memorandum of sale, § 1185. § 1183. That a trustee, several years after the execution of a sale under the trust, comes into possession of the property by purchase from his purchaser, is not necessarily fraudulent. Stephen v. Beall, §§ 1186-1189. § 1184. A corporation which is the payee of the note secured by a deed of trust may purchase at a sale fairly conducted in every respect, although the trustee was the actuary of the corporation, in case he acted in his individual capacity. Clark v. Trust Company, §§ 1190, 1191. § 1185. A bidder at a foreclosure sale is not bound by his bid, unless there was a memorandum of sale signed by him or by the auctioneer acting as the agent of both parties. Cook v. Hilliard, § 1192. [NOTES.-See § 1193-1200.] STEPHEN v. BEALL. (22 Wallace, 329–341. 1874.) APPEAL from the Supreme Court of the District of Columbia. STATEMENT OF FACTS.- A deed of land was made to a Mrs. Bell and her three children, who were named in the deed. Mrs. Bell afterwards married Beall, and he with his wife executed a deed of trust conveying the whole tract to secure a debt contracted by Beall in the purchase of land from Stephen, trustee of Magruder. When the notes for the purchase money fell due, Stephen caused the Magruder land to be sold to Crowley, and its proceeds failed to pay the debt. He thereupon filed a bill against Beall and wife to obtain satisfaction of the balance unpaid of the Magruder purchase money. In their answer Beall and wife set up the interests of the children, denied that Mrs. Beall could charge her land for her husband's debts, and in a cross-bill charged that the sale of the Magruder land to Crowley was fraudulent, being in reality a sale by the trustee to himself. The fraud was denied by Stephen. The bill was dismissed and Stephen appealed. Opinion by MR. JUSTICE HUNT. The counsel for the appellee sustains the decree below dismissing the bill upon three grounds: 1st. Because the complainant failed to join the necessary parties defendant. 2d. Because a wife could not, at the date of the deed in question from Mrs. Beall, incumber her estate for the benefit of her husband. 3d. Because the complainant acted in bad faith. § 1186. A person holding in joint tenancy one-fourth of a tract of land can by a conveyance of the whole pass that interest and no more to the grantee. We will consider the different grounds in their order. 1. As to the necessity of further parties defendant. Mrs. Beall was the owner of one-fourth of the property referred to, and no more. This one-fourth she could convey, and no more. Whether the terms of her deed purported to convey this portion only, or the whole, is not important. She could not convey the remaining threefourths, nor could the general language of her deed create a cloud upon the title of her children. The record showed exactly what title she had, and exactly what title the children had. No relief was asked against the children, and no claim made by the trustees that their rights were affected by the deed of their mother. The bill was filed against Mrs. Beall and her husband only, and judgment only asked against them. No judgment could be taken against the children or that would affect their estate, nor would a sale of their interest have any legal effect. Ward v. Dewey, 16 N. Y., 519; Heywood v. City of Buffalo, 14 id., 534; Cox v. Clift, 2 Comst., 118; Story's Eq., § 700. If the grantees were tenants in common, it is not denied that Mrs. Beall could convey her portion or interest without affecting the rights of her co-tenants, and that her deed in this case would effect that purpose. It is said, however, that as the law of Maryland stood in 1801, and was thence carried into the District of Columbia, the conveyance to Mrs. Beall and her children created a joint tenancy, and that being a joint tenant, her conveyance in 1857 did not bind her interest only, but affected, also, that of her co-tenants. We cannot recognize this conclusion. We find the law on this point thus laid down, in Coke Littleton and in Bacon's Abridgment: "If there be three joint tenants and one aliens his part, the other two are joint tenants of their parts that remain, and hold them in common with the alienee." Coke Littleton, 189; Bacon's Abr., title "Joint Tenants," E. "If one joint tenant bargains and sells his moiety, and dies before the deed is enrolled, yet the deed, being afterwards enrolled, shall work a severance ab initio, and support, by relation, the interest of the bargainee. But if one joint tenant bargains and sells all the lands, and before enrollment the other dies, his part shall survive, for the freehold not being out of him the jointure remains, and though afterwards the deed is enrolled, yet only a moiety shall pass, for the enrollment by relation cannot make the grant of any better effect than it would have been if it had taken effect immediately." Coke Littleton, 186, 186a; Bacon's Abr., title "Joint Tenant," I, 3. § 1187. In a proceeding to enforce the mortgage of a joint tenant, his cotenants are not necessary parties. It is laid down in the same authorities that if one joint tenant agree to alien, but do not, and die, this will not sever the joint tenancy, nor bind the survivor. But it is held in Hinton v. Hinton, 2 Ves., 634, that in equity it may be enforced if the articles amount to an equitable severance of the jointure. We think it clear upon these authorities that the attempted conveyance by Mrs. Beall of the entire premises had no effect upon the interest of her co-tenants, conceding them to have been joint tenants. The law is well settled that no cloud is cast upon a title by a proceeding or claim, where the record through which title is to be made shows a defense to the claim. Ward v. Dewey, 16 N. Y., 519; Heywood v. City of Buffalo, 14 id., 534; Cox v. Clift, 2 Comst., 118; Story's Eq., § 700. It would not be proper under such circumstances that the children should be parties defendants. See Reed v. Vanderheyden, 5 Cow., 719; Bailey v. Inglee, 2 Paige, 278. We dismiss, then, as unfounded the argument of a want of parties defendant. § 1188. A married woman can by deed duly executed and acknowledged bind her separate estate for the payment of a specified debt of her husband. 2. The dismissal of the bill is defended upon the further ground that the debt sought to be secured is the debt of the husband, and that it was not competent for the wife to incumber her individual property to secure her husband's debts. In support of this argument Steffey v. Steffey, 19 Md., 5, in the court of appeals of Maryland, is cited; but that case does not bear upon the ques tion. That was not the case of an attempt to incumber the separate property of the wife for the debt of the husband. It was a case in which both husband and wife had joined in an agreement to sell the lands of the wife. Upon a bill for specific performance the interest of the husband was adjudged to be bound, but the execution of a contract simply was held to be inoperative to convey the estate of or to bind the married woman under the statutes of Maryland. Nor is Central Bank of Frederick v. Copeland, 18 Md., 305, in the same court, and also cited, an authority to the point insisted upon. It was there held that a mortgage by a wife for her husband's debts, obtained from her by threats, and the exercise by the husband of an authority so excessive as to subjugate her will, was not binding upon her. There is nothing in these authorities to indicate that the law of Maryland or of the District of Columbia on this subject is in any respect peculiar. The case rests upon and must be governed by the general principles applicable to the subject. As to a wife's individual property generally, it is well settled that she may, by joining in a deed with her husband, convey any interest she has in real estate. Such a deed conveys the interest of both. 1 Washburn on Real Property, *280. The doctrine that a married woman has the power to charge her separate estate with the payment of her husband's debts, or any other debt contracted by her as principal or as surety, has been uniformly sustained for a long period of time. Hulme v. Tenant, 1 Brown's Ch. Cas., 16; Stanford v. Marshall, 2 Atk., 69; Bullpin v. Clarke, 17 Ves. Jr., 365; Jaques v. Methodist Episcopal Church, 17 Johns., 548; Yale v. Dederer, 22 N. Y., 450; S. C., 18 id., 276; Corn Exchange Ins. Co. v. Babcock, 42 id., 615; Story's Eq., §§ 1396, 1401a. The question has been in respect to the manner in which the conceded power should be exercised, and in respect to the requisite evidence of its due execution. Whether the simple execution of an obligation by a married woman operates to charge her estate, or whether she must declare such to be her intention; whether an oral statement of such intention is sufficient, or whether it must be in writing; whether such intention must be manifested in the contract itself or may be separately manifested; whether a declaration of an intention. to bind her separate property is sufficient, or whether the property intended to be charged must be specifically described, have been the subject of discussion at different times. But that a married woman, by an instrument in writing by which she expressly charges her separate property for the payment of a debt, which charge is contained in the instrument creating the debt, and where the property is specifically described, and which instrument is executed in the manner required by law, may create a valid charge upon such property, is agreed in all the books. The instrument before us contains all these requisites, and we cannot doubt its validity. Whether the property is her separate estate or her individual property merely, the result is the same. § 1189. That a trustee, several years after the execution of a trust, comes into possession of the property by purchase from his purchaser is not necessarily fraudulent. 3. It was farther contended that the bad faith of the complainant should bar his recovery. The defendants in a cross-bill allege fraud in the original sale to Mr. Beall, in that the complainant deceived and defrauded them by promising to execute a deed of the Magruder property as soon as they made the purchase, and by misrepresentations of the value of the land. This is denied by the complainant in his answer to the cross-bill. It will be remembered also that the order of sale expressly prohibited the giving a deed until the whole pur chase money should be paid. Fraud is alleged again in that the purchase by Crowley at the resale was for the benefit of Stephen, the complainant, upon an agreement that the property should be transferred to him, and that the same had been conveyed to him. All fraud is denied in the answer. The alleged agreement or understanding between Crowley and the complainant Stephen is denied in all its parts. It is admitted by Stephen that subsequently, without any previous understanding, and in good faith, and for a fair price paid, the complainant purchased of Crowley the property bought by him at the resale. The interval between the purchase by Crowley at the resale and the purchase from him by the complainant does not appear. Crowley's purchase was made in May, 1859. In February, 1872, thirteen years having elapsed, it is alleged and admitted that a conveyance had been made by Crowley to the complainOn the principle that every pleader states his case as favorably to him as he is able to do, we may assume that this time had mostly elapsed before the purchase was made by the complainant. No proofs were taken. The case was heard on bill and answer. It narrows itself down to this: there being no understanding or agreement between the purchaser at a public sale and the trustee making the sale, there being no collusion between them, there being no fraud in fact, the duties of the trustee in respect to the sale being ended and his doings confirmed by the court having the subject in charge, does the circumstance that, years afterwards, the trustee bought the property from the purchaser in good faith, and for a fair price paid to him, vitiate and annul the public sale by the purchaser? ant. If there was a fraud on the part of the complainant in making the sale at which Crowley was the purchaser, it arose from an act, an intention or an omission then done or existing. A subsequent purchase may afford evidence that the original sale was made to permit that purchase, and that the end illustrates what the parties all the while intended. But to make a fraudulent sale it is necessary to go back to the acts, the intents or the neglects existing at the time of the sale. It would seem to be a self-evident proposition that when it is conceded that a sale was in fact fair, honest and just when made, that no unlawful act or intent then existed, that a fraudulent intent or an unjust dealing as to that time could not be imputed to the party from subsequent occurrences. It stands upon pleadings here that at the time of the sale the complainant had no understanding that he should ever have any interest in the property; in other words, Crowley bought it for himself and for his own exclusive benefit. There was no collusion; that is, the property was fairly sold and for all that could be obtained for it. The sale was reported to and confirmed by the court. This constituted a discharge of the duty of the trustee in making the sale. It is quite difficult to conceive that any subsequent facts (leaving these in full force) can establish that such a sale is fraudulent. per It is a general rule that a trustee cannot deal with the subject of his trust. If one acting as trustee for others becomes himself interested in the purchase, the cestuis que trust are entitled, of course, to have the sale set aside, unless the trustee had fairly divested himself of the character of trustee; and the fact that the purchase was made through the intervention of a third son makes no difference. Jewett v. Miller, 10 N. Y., 402; Slade v. Van Vechten, 11 Paige, 21; Van Epps v. Van Epps, 9 id., 237; Bank of Orleans v. Torrey, 7 Hill, 260; Hawley v. Cramer, 4 Cow., 717; Hill on Trustees, *536, h. We should be unwilling to weaken the obligation of good faith and fidelity required by the law of a trustee. We have frequently enforced such obligations in the most rigid manner. It would, however, be a great straining of a good principle to hold that a purchase by a trustee from the purchaser at a public sale, under the circumstances before us, is necessarily fraudulent. There is a class of cases, undoubtedly, in which transfers of property are adjudged to be fraudulent, although there be no actual fraud meditated by the parties. Such are the cases of an assignment by an insolvent debtor reserving portions of the assigned property for his own benefit, requiring releases from creditors as a condition of participating in the fund, and the like. The case we are considering bears no resemblance to these cases. There is in a purchase by a trustee nothing that of itself and necessarily vitiates the original sale. Whether culpable or commendable depends upon the circumstances of each case. It may be wrong, and it may be right. It may be approved by the parties interested and affirmed. It may be condemned by them and avoided. When it is found that the transaction is itself perfectly fair and honest, that the purchase was not contemplated at the original sale, but was first thought of years afterwards, and was then made for a full and fair consideration actually paid by the trustee, and after the fiduciary duty was at an end, we find no authority to justify us in pronouncing the original sale to have been fraudulent. Upon the whole case the decree must be reversed, and the record remanded, with directions to enter a decree in conformity with this opinion, with leave to the parties to amend their pleadings if they shall be so advised. Reversal and remand accordingly. CLARK v. TRUST COMPANY. (10 Otto, 149–153. 1879.) APPEAL from the Supreme Court of the District of Columbia. STATEMENT OF FACTS.-The preliminary question in this case involves the validity and effect of the sale made at public auction by Eaton, or rather by the auctioneer under his directions and as his agent. McGhan and wife, by indenture dated August 15, 1864, and duly acknowledged on 18th November, 1864, conveyed the premises in controversy to Edward Clark, in trust for the sole use and benefit of Mrs. McGhan, for and during her natural life, permitting her to use and occupy the same, and to receive and apply the rents and profits thereof, and in trust also to sell and convey absolutely in fee-simple or by way of mortgage, to such person or persons and for such use and purposes as Mrs. McGhan should in writing request and direct, her then or any future coverture notwithstanding. The indenture also contained a provision, that, upon the death of Mrs. McGhan, the premises, or so much thereof as remained undisposed of, should be conveyed to the husband, his heirs or assigns. By an indenture executed and duly acknowledged on 20th June, 1870, McGhan and his wife, together with Clark, the trustee, conveyed the property to Daniel Eaton, of the city of Washington, in trust to secure the payment of a debt due from McGhan and wife to the Freedman's Savings and Trust Company, for the sum of $10,000, evidenced by their joint and several promissory note to that company, of like date with the indenture, and payable twelve months thereafter to the order of the company, with interest at the rate of ten per cent. per annum, interest payable half-yearly. That conveyance was in part upon these trusts: 1. To permit Mrs. McGhan and husband to occupy |