“ Oliver and Williams have no just cause to complain of the decree which has been rendered against them in the Circuit Court, as ample and more than liberal justice has been awarded to them, even if their conduct in the premises had been entirely untainted by fraud or a fraudulent design, and they had been merely acting under an entirely innocent but mistaken view of their legal rights. But it is respectfully submitted, that Robert Piatt, the heirs of Martin Baum, and the other defendants in interest, have just cause to complain of that decree. ”

“ He had engaged in a partnership adventure in real estate; debts were contracted by the acting partner, who was primarily liable upon his personal covenants. That acting partner is also deeply harassed with his own individual liabilities. The plaintiff is under no disability, is a man of property, is fully advised of the condition of affairs, and deliberately, for a series of years, abandons the property and the acting partner. In process of time, after the property has changed hands and greatly appreciated by the labor of others, he comes into a court of equity for relief. ”

“ The cost of these tracts at the sale in 1817 was less than $1,800; their value from 1822 to 1828 was less than 1,000. It is taxing the credulity of men greatly indeed to ask them to believe, that for the possession of wild land such as this, so remote from his residence and so little attractive as it then was, Baum would combine with Oliver or any one else, and by a long train of artifice and fraud, continued and practised for a series of years, pursue this as the great and absorbing object of his life. ”

“ It is a principle of universal justice, that a party shall not be affected by the judgment of a court, who has not been party to the suit in which it is made. Who was the party that was to be warned to pay the money due on the mortgage, by the decree nisi? not Baum: for Oliver would not have received it of him; but the parties owing the debt, the Port Lawrence Company. Who was expected to defend the suit? not Baum; whose property was to be sold? the property of the Port Lawrence Company; and to be sold to their agent upon their agent's suit! ”

“ How far such an excuse is admissible we do not stop to inquire. It rather tends to cast a shade upon the transaction than to vindicate it. But what was the title thus acquired, supposing all the proceedings to be bona fide? It was a mere naked title in equity to the tracts, the title to which still remained in the United States; and the legal title could not be consummated, unless the certificates of the purchase and payments for the tracts were first surrendered to the United States. Those certificates were then in the hands of Baum, as trustee of the Piatt Company ”

“ In the ordinary case of a sale of lands, where the agreement settles all terms but the price, a court of chancery has never yet attempted to fix a price for the parties by the opinion of third persons. Even where the contract provides that the price shall be fixed by arbitration, a court of chancery will not compel the delinquent party to choose his arbitrator or even appoint arbitrators for them.
6th. The vast increase in the value of 1 and 2 since the purchase by Oliver, an increase brought about, in a great measure, by the combined efforts of Oliver and Williams, forbids a resulting trust. ”

“ In our judgment, no reasoning can make the proposition more clear than a simple recital of the facts, and the statement of the general doctrine of equity jurisprudence that the cestuis que trust have an option to follow their property, or its proceeds, into any other property into which it has been converted by a breach of the trust, subject only to the rights of such purchasers as have been just referred to. Indeed, the question, as against Baum and Oliver, seems absolutely closed by the state of the evidence ”

“ Another objection taken at the argument is, that Baum's heirs cannot insist upon any title to the property in question, because they are bound by the warranty of their ancestor in the conveyance thereof to Oliver. But this objection has no foundation whatsoever in law, whether the warranty be lineal or collateral; for the heirs here do not claim any title to the property by descent, but simply by purchase; and it is only to cases of descent that the doctrine of warranty applies. ”

“ Where land is purchased with a trust fund, but the party is not in a strict fiduciary relation, and acts under a belief of his right to the fund, the rule in equity is, to make the trust fund or its value a charge simply. ”

“ No such case has ever been sustained. If there had been an agreement between these two companies that their land should be so exchanged, and they had vested the title in Oliver for the purpose, the bill would lie. But there was no such agreement, and no trust assumed on the part of Oliver. He purchased the two tracts of land at judicial sales, was in possession, claimed title, and made the exchange for himself. The books, we believe, show no cause in which the separate funds of several individuals can be followed into a joint investment, so as to raise a trust in the property. ”

“ But the powers of Baum are greatly enlarged when we regard his true character-not an agent, but the managing partner of a partnership in real estate-the praepositus negotiis societatis-holding all the title-managing all the business incurring, by his personal covenants, the primary liabilities. ”

“ Under the mortgage proceedings and the subsequent assignment of the certificates, Oliver acquired, at the least, the interest of Baum in tracts 3 and 4, which tracts formed a part of the consideration for tracts 1 and 2.
Where land is purchased partly with trust and partly with individual funds, the trust fund so applied is simply a charge on the land, and affects the title no further. ”

“ Where in the misappropriation of a trust fund it has been confused with any other fund, the uniform rule is, simply to make the trust fund a charge on the new acquisition. Crop v. Norton, 2 Atk., 75. The only limitation upon the doctrine as established by Lord Hardwicke in Crop v. Norton, that a trust never results, except where all the money is paid by one person, is, that where the joint advance is in conformity with an agreement of purchase a trust will result. Wray v. Steele, 2 Ves. ”

“ An immediate correspondence is to be opened by the agent with Martin Baum, Esq., of this city, who will act as trustee for the proprietors, and any information given to him in relation to the business of the agency, the sale of lots, and the progress of the town, that may be thought of any consequence to the interests of the proprietors, or that may be required by the trustee. It is the intention of the proprietors to give public notice of the time of the sale, and it is necessary that this notice should be as general and as widely spread as possible ”

“ It is said that the defendants (except Oliver) admit that the transfer of the certificates was made to Baum only to enable him to perfect the title. This is admitted by one of the nominal defendants, but the active prosecutor, who has admitted $100,000 into his own pocket. It does not bind us. There was no necessity for such a transfer to enable Baum to complete the title, (for the script was receivable for any lands within the district,) without reference to their being owned by the same man who held the script. The only good reason that can be given is, that it was done to secure Baum. ”

“ The Baum Company, in their articles, call themselves a partnership.
See letter of instructions of Piatt Company, in which they say their object is to buy for sale and profit, for their common benefit.
The modern authorities are full to the point, that, in the estimation of a court of equity, real estate, held as partnership assets, is considered as personal estate. ”

“ It is not a case, either, where justice cannot be rendered to the parties purchasing the land, if any thing further than a specific lien were given on the land purchased. But this is a case where the lands exchanged have been improperly obtained, and applied to the exclusive use of parties standing in a relation to compel them, in good faith, to divide the lands acquired, taking to themselves a sufficient compensation. It is not necessary that there shall be a direct violation of a formal trust, to allow the parties, claiming to have the benefit of the purchase, that privilege. ”

“ But Baum was a trustee.
Having the title in himself, without any expressed restriction, he is presumed to hold it for all the purposes to which equity would apply it, and his act was confirmed by acquiescence in the sales to Prentiss and Tromley, and in this mortgage for twelve years. It is objected that an unreasonable amount of property was mortgaged. But the debt was $1,835.47, and the first cost of the tracts mortgaged was $1,679.14, and their value had been reduced by the act of Congress reducing the price of public lands, to $1,049.14; estimated in proportion. ”

“ He was not merely an agent or trustee, but a joint owner, and the acting partner; invested with the title to all the assets, having made advances, and incurred personal liabilities, to their full value.
Under these proceedings and transfers, Oliver acquired the legal title to the four quarter-sections, and the lands included in the mortgage, by patents issued to him in December, 1830. The plaintiff comes to be relieved, and to impeach the transactions under which that title was obtained. From first to last he has been under no disability. ”

“ The bill alleges that this transfer was for the sole purpose of the relinquishment and appropriation to the unrelinquished lands.
This allegation is denied by the answers, and no proof to contradict.
The complainant introduces Baum's letters to Brown of 1822 and 1823, which state that all the lands were transferred to him for convenience of sale and conveyance.
Clothing a person with apparent ownership and right to sell, implies that the apparent is the real authority. Story on Agency, 108. ”

“ Oliver as agent, and Oliver and Williams as trustees, are bound to account with and pay to the original complainant, Robert Piatt, his just proportion of the money and notes received by them on the sale of lots in Port Lawrence and Toledo and lands adjacent, and to convey to him his just proportion of the lots remaining unsold. ”

“ In law, his mere assignment is good enough. Can this difficulty as to mode affect us in equity? There is no reason why this legal title, so acquired, should be now disturbed. The complainant had full notice of the mortgage, and of the suit thereon. He stood by: suffered the suit upon the mortgage to proceed without coming in and making himself a party, as he might have done; suffered the sale to be made without objection; the certificates to be assigned and the patent to issue; suffered Oliver to enter upon the property, expend his time, and talents, and money, upon it ”

“ In consequence of the company's securing the Port Lawrence property, they are liable to the purchasers for the money received for lots; and as some of my friends in Detroit were disposed to bear pretty hard on me for advising them to purchase, I authorized Colonel Hunt to redeem the certificates of sale from those who had purchased by my advice. The payments made in this way were upwards of $400. M. Baum's company have refunded their proportion, but my claim ($213.07, which is from the 10th of last September, 1822) against you is unsatisfied ”

“ The allegation is first made in 1836, years after the death of Baum. It therefore affects the dead as well as the living. It is, besides, an allegation of breach of trust, as well as fraud. The sort of proof which is required to make out such a case, is well stated by Mr. Justice Story, in Prevost v. Gratz, 6 Wheat., 498:
'Fraud or breach of trust ought not lightly to be imputed to the living, for the legal presumption is the other way ”

“ Upon this certificate Oliver, in October, 1823, instituted a suit by attachment in Monroe county, in the territory of Michigan, against Baum, Robert Piatt, G. A. Worth, and William Worthington, (John H. Piatt being then deceased,) alleging them to be joint partners and survivors, and all residing out of the territory-upon which four of the quarter-sections of land owned by the Piatt Company in that county were attached. At the October term, 1826, of the same court, judgment was obtained by default against all the defendants, no appearance having been entered for them ”

“ However that may be in the execution of strict specified powers, it is supposed the doctrine does not apply to the case at bar. Here the title was in Baum, without any express limitation or declaration of trust. It was not a power carried out from the estate, but the whole estate was vested. Doug., 292, 293, Perkins v. Walker, 1 Vern., 97; that a mortgage is not an exhaustion of a power of sale.
Besides, the transfer was not the exercise of any new power, but the confirmation of the first act; the ratification of Oliver's title under the mortgage, after his purchase at a judicial sale. ”

“ MARTIN BAUM.'
'Cincinnati, 14th August, 1817.
'DEAR SIR:-As agent for the proprietors of the land recently purchased at Swan creek, you will, immediately upon the receipt of these instructions, proceed to that place, and commence the laying off a town. General Schenck, who accompanies you, will assist in the survey of the ground, in determining the site, and in the arrangement and formation of the plat. In running the streets, and in the division of the lots, it is not the wish of the proprietors that interest or convenience should be sacrificed to form ”

“ It is very proper in such a case, where fraud and breach of trust are imputed to the dead, and attempted to be raised upon presumptions from conduct, to look to the character of the deceased.
The whole case shows that Baum was esteemed by all parties a man of the strictest honor, and had the fullest confidence of his associates.
4. Oliver's agency.
The bill alleges that, on the 14th August, 1817, Baum, with the advice and consent of the company, appointed Oliver agent to lay out the town, (with Schenck's assistance,) and to attend to the concerns of the company ”