§ 192. So, equity will relieve in all cases of contracts procured by duress, or fear, or apprehension; for, if there has been any restraint upon a person's freedom to consent or dissent, or any practice upon his fears, it is a kind of fraud, and no one ought to enjoy an advantage gained in such manner.1 Thus, if a contract is made with one in prison, or under any circumstances of oppression, equity will scrutinize it with great care.2 And so, if advantage is taken of the extreme distress or necessity of a party, to obtain a favorable bargain from him, equity will give relief; 3 but the advantage must have been within the contemplation of the parties at the time.

§ 193. Of course, if two or more of these suspicious circumstances are found in the same case; as, if property is obtained from a person of weak mind, or under duress, or in great distress, for a grossly inadequate consideration, or upon any un195; Jenness v. Howard, 6 Blackf. 240; Cory v. Cory, 1 Ves. 19; Cooke v. Clayworth, 18 Ves. 12; Crane v. Conklin, Saxt. 346; Calloway v. Wetherspoon, 5 Ired. Eq. 128, Hutchinson v. Tindall, 2 Green, Ch. 128; Phillips v. Moore, 11 Miss. 600; Cooley v. Rankin, ib. 642; Cragg v. Holme, 18 Ves. 14, n.; Shiers v. Higgons, 1 Madd. Ch. Pr. 399; Nagle v. Baylor, 2 Dr. & W. 64; Shaw v. Thackray, 1 Sm. & Gif. 537.

1 Attorney-General v. Sothen, 2 Vern. 497; Crowe v. Ballard, 1 Ves. Jr. 220; Anon. 3 P. Wms. 29, n. (e); Gist v. Frazier, 2 Lit. 118; Evans v. Llewellyn, 1 Cox, 340; Hawes v. Wyatt, 3 Bro. Ch. 158.

2 Attorney-General v. Sothen, 2 Vern. 497; Roy v. Beaufort, 2 Atk. 190; Falkner v. O'Brien, 2 B. & B. 214; Underhill v. Horwood, 10 Ves. 209; Nicholls v. Nicholls, 1 Atk. 409; Griffith v. Spratley, 1 Cox, 333; Hinton v. Hinton, 2 Ves. 634.

3 Gould v. Okeden, 3 Bro. P. C. 560; Harvey v. Mount, 8 Beav. 439; Hawes v. Wyatt, 3 Bro. Ch. 156; Bosanquet v. Dashwood, Ca. t. Talb. 37; Pickett v. Loggon, 14 Ves. 215; Farmer v. Farmer, 1 H. L. Ca. 724; Fitzgerald v. Rainsford, 1 B. & B. 37; Underhill v. Horwood, 10 Ves. 209; Huguenin v. Baseley, 14 Ves. 273; Carpenter v. Elliott, 2 Ves. 494; Proof v. Hines, Ca. t. Talb. 111; Basy v. Magrath, 2 Sch. & Lef. 31; Ramsbottom v. Parker, 6 Madd. 6; Wood v. Abrey, 3 Madd. 417; Crowe v. Ballard, 1 Ves. Jr. 215; Nottige v. Prince, 6 Jur. (N. s.) 1066; Davis v. McNally, 5 Sneed, 583; Graham v. Little, 3 Jones, Eq. 152; Stewart v. Hubbard, ib. 186.

usual, extraordinary, or oppressive terms, the evidence would be much stronger of some fraudulent practice, and would call upon the suspected party for a very complete vindication of the transaction, or he would be converted into a trustee.1

§ 194. Lord Hardwicke's "third species of fraud may be presumed from the circumstances and condition of the parties contracting; and this goes further than the rule of law, which is, that fraud must be proved, not presumed."2 At law, fraud must be proved; but in equity there are certain rules prohibiting parties, bearing certain relations to each other, from contracting between themselves; and if parties bearing such relations enter into contracts with each other, courts of equity presume them to be fraudulent, and convert the fraudulent party into a trustee. And, herein, courts of equity go further than courts of law, and presume fraud in cases where a court of law would require it to be proved; that is, if parties within the prohibited relations or conditions contract between themselves, courts of equity will avoid the contract altogether, without proof, or they will throw upon the party standing in this position of trust, confidence, and influence, the burden of proving the entire fairness of the transaction. Thus, if a parent buys property of his child, a guardian of his ward, a trustee of his cestui que trust, an attorney of his client, or an agent of his principal, equity will either avoid the contract altogether, without proof, or it will throw the burden of proving the fairness of the transaction upon the purchaser; and, if the proof fails, the contract will be avoided, or the purchaser will be construed to be a trustee at the election of the other party. The ground of this rule is, that the danger of allowing persons holding such relations of trust and influence with others to deal with them is so great that the presumption ought to be against the transaction, and the person holding

1 Griffin v. De Veulle, Wood. Lect. App. 16.

2 Chesterfield v. Janssen, 2 Ves. 155.

the trust or influence ought to be required to vindicate it from all fraud, or to continue to hold the property in trust for the benefit of the ward, cestui que trust, or other person holding a similar relation.1

§ 195. These principles are applied in their full vigor to all contracts and sales between trustee and cestui que trust.2 The trustee is in such a position of confidence and influence over the cestui que trust, that the contract or bargain will either be void or he will be a constructive trustee, at the election of the cestui que trust, unless the trustee can show that the contract was entirely fair and advantageous to the cestui que trust. The general rule is, that the trustee shall

1 Hoghton v. Hoghton, 15 Beav. 278; Cooke v. Lamotte, ib. 234; Ahearne v. Hogan, 1 Dr. 310; Espey v. Lake, 10 Hare, 260; Prideaux v. Lonsdale, 1 De G., J. & S. 433; Bayley v. Williams, 11 Jur. (N. s.) 236; Clark v. Malpas, 31 Beav. 80; Grosvenor v. Sherratt, 28 Beav. 659; Beanland v. Bradley, 2 Sm. & Gif. 339; Taylor v. Taylor, 8 How. 183; Greenfield's Est. 14 Pa. St. 504; Graham v. Pancoast, 30 Pa. St. 89; Nace v. Boyer, ib. 99; Sears v. Shafer, 2 Seld. 268; Buffalow v. Buffalow, 2 Dev. & Bat. 241; Prewett v. Coopwood, 30 Miss. 369; Graham v. Little, 3 Jones, Eq. 152; Powell v. Cobb, ib. 456; Gass v. Mason, 4 Sneed, 497; Wester's App. 54 Pa. St. 60; Lovatt v. Knipe, 12 Ir. Eq. 124; Ames v. Port Huron, 11 Mich. 139; European R. R. Co. v. Poor, 59 Me. 277.

2 Hatch v. Hatch, 9 Ves. 296; Hylton v. Hylton, 2 Ves. 549; Hunter v. Atkins, 3 M. & K. 135; Bulkley v. Wilford, 2 Cl. & Fin. 102; Farnam v. Brooks, 9 Pick. 212; Boynton v. Brastow, 53 Me. 362; Staats v. Bergen, 2 C. E. Green, 554; Coffee v. Ruffin, 4 Cold. 487; Faucett v. Faucett, 4 Bush, 521; Korns v. Shaffer, 27 Md. 83; Baltimore v. Caldwell, 25 Md. 423; Smith v. Townshend, 27 Md. 368; Colborn v. Morton, 3 Keyes, 266; Pairo v. Vickery, 37 Md. 467; Wright v. Campbell, 27 Ark. 637.

8 Crosskill v. Bower, 32 Beav. 86; Pooley v. Quilter, 2 De G. & J. 327; Spring v. Pride, 10 Jur. (N. s.) 646; Ex parte Ridgeway, 1 Jur. (N. s.) 97; Herne v. Meeres, 1 Vern. 465; Ayliffe v. Murray, 2 Atk. 59; Fox v. Mackreth, 2 Bro. Ch. 400; Coles v. Trecothick, 9 Ves. 246; Ex parte Lacey, 6 Ves. 625; Morse v. Royal, 2 Ves. 376; Hunter v. Atkins, 3 M. & K. 135; Whichcote v. Lawrence, 3 Ves. 740; Scott v. Davis, 4 M. & Cr. 87; Kerr v. Dungannon, 1 Dr. & W. 509; Van Epps v. Van Epps, 9 Paige, 237; Hawley v. Cramer, 4 Cow. 717; Campbell v. Walker, 5 Ves. 678; Gibson v. Jeyes, 6 Ves. 277; Michoud v. Girod, 4 How. 503; De Caters v. Chau

not take beneficially by gift or purchase from the cestui que trust,1 even although the supposed trustee and purchaser is a mere intermeddler and not a regularly recognized trustee ; 2 but there are exceptions to the rule, and a trustee may buy from the cestui que trust, provided there is a distinct and clear contract, ascertained after a jealous and scrupulous examination of all the circumstances, that the cestui que trust intended the trustee to buy, and there is no fraud, no concealment, no advantage taken by the trustee of information acquired by him in the character of trustee.3 Lord Eldon said he admitted

mont, 3 Paige, 178; Child v. Bruce, 4 Paige, 309; Campbell v. Johnston, 1 Sandf. Ch. 148; Cram v. Mitchell, ib. 251; Davis v. Simpson, 5 Har. & J. 147; Boyd v. Hawkins, 2 Ired. Ch. 304; Matthews v. Dragand, 3 Des. 25; Thorp v. McCullum, 1 Gilm. 614; Davoue v. Fanning, 2 Johns. Ch. 252; De Bevoise v. Sandford, 1 Hoff. 192; Stuart v. Kissam, 2 Barb. 493; Richardson v. Jones, 3 G. & J. 163; Clark v. Lee, 14 Io. 425; Zimmerman v. Harmon, 4 Rich. Eq. 165; Johnson v. Blackman, 11 Conn. 343; Moody v. Vandyke, 4 Binn. 31; Armstrong v. Campbell, 3 Yerg. 201; Bruch v. Lantz, 2 Rawle, 392; Herr's Est. 1 Grant's Ca. 172; Painter v. Henderson, 7 Barr, 48; Brackenridge v. Holland, 2 Blackf. 377; Scroggins v. McDougald, 8 Ala. 382; Thompson v. Wheatley, 5 S. & M. 499; Shelton v. Homer, 5 Met. 462; Freeman v. Harwood, 49 Me. 195.

1 Coles v. Trecothick, 9 Ves. 234; Renew v. Butler, 30 Ga. 954; Cadwallader's App. 64 Pa. St. 293; Wright v. Smith, 23 N. J. Eq. 106; Smith v. Drake, 23 N. J. Eq. 302.

2 Wright v. Smith, 23 N. J. Eq. 106.

3 Ibid.; Bryan v. Duncan, 11 Ga. 67; Dobson v. Racey, 3 Sandf. 61; Brackenridge v. Holland, 2 Blackf. 377; Paillon v. Martin, 1 Sandf. 569; Stuart v. Kissam, 2 Barb. 494; Braman v. Oliver, 2 Stewart, 47; Julian v. Reynolds, 8 Ala. 680; Stallings v. Foreman, 2 Hill, Ch. 401; Pratt v. Thornton, 28 Me. 355; McCartney v. Calhoun, 17 Ala. 301; Marshall v. Stevens, 8 Humph. 159; Beeson v. Beeson, 9 Barr, 279; McKinley v. Irvine, 14 Ala. 681; Farnam v. Brooks, 9 Pick. 212; Lyon v. Lyon, 8 Ired. Eq. 201; Harrington v. Brown, 5 Pick. 519; Jennison v. Hapgood, 7 Pick. 1; Dunlap v. Mitchell, 10 Ohio, 117; Scott v. Freeland, 7 Sm. & M. 410; Pennock's App. 4 Pa. St. 446; Bruch v. Lantz, 2 Rawle, 392; Field v. Arrowsmith, 3 Humph. 442; Monro v. Allaire, 2 Caine's Cas. 163; Salmon r. Cutts, 4 De G. & Sm. 131; Harrison v. Guest, 6 De G., M. & G. 431; Herbert v. Smith, 6 Lansing, 493; Birdwell v. Cain, 1 Cold. 301; Rice v. Cleghorn, 21 Ind. 80; Johnson v. Bennett, 39 Barb. 37; Buel v. Buckingham, 16 Io. 284; Brown v. Cowell, 116 Mass. 465, post, § 428; Graves v. Waterman, 63 N. Y. 657.

that the exception was a difficult case to make out. And it may be said generally that it is difficult to find a case where such a transaction has been sustained. Any withholding of information, or any inadequacy of price, will make such purchaser a constructive trustee. The cestui que trust must know that he is dealing with the trustee. Therefore, if the trustee purchases through an agent or third person, and the cestui que trust does not know the trustee in the transaction, the contract will be void, or a trust in the agent.5 The rule is that the trustee shall not purchase directly or indirectly; therefore if the trustee conveys to a stranger, and the stranger conveys back to the trustee, the transaction is equally void." So, if the trustee purchases at auction of the cestui que trust, the presumption is strongly against the transaction, and the purchase is generally void. And one of several trustees is under the same disabilities:9 they cannot convey to each other.10 And so, if the purchase is made by an agent or attorney of the trustee. Nor can the trustee's wife purchase.12

1 Coles v. Trecothick, 9 Ves. 246.

22 Sugd. V. & P. (S Am. ed.) 687.

Fox v. Mackreth, 2 Bro. Ch. 400; Scott v. Davis, 4 M. & Cr. 87; Herne v. Meeres, 1 Vern. 465.

Pugh v. Bell, 1 J. J. Marsh. 398; Morse v. Royal, 12 Ves. 373.

5 Randall v. Errington, 10 Ves. 423.

Dobson v. Racey, 3 Sandf. 61.

Attorney-General v. Dudley, Coop. 146; Whelpdale v. Cookson, 1 Ves. 9; Lister v. Lister, 6 Ves. 631; Sanderson v. Walker, 13 Ves. 601; Downes v. Grazebrook, 3 Mer. 200; Campbell v. Walker, 3 Ves. 378; Whitcomb v. Minichin, 5 Madd. 91.

8 Roberts v. Roberts, 65 N. C. 27.

Whichcote v. Lawrence, 3 Ves. 740.

10 Boynton v. Brastow, 53 Me. 362.

11 Campbell v. Walker, 5 Ves. 378; Cox v. John, 32 Ohio St. 532.

12 Dundas's App. 64 Pa. St. 325; Leitch v. Wells, 48 Barb. 637. But it has been held that the trustee's wife might purchase where the trust property was sold under a judicial decree of sale, in the absence of fraud and collusion, if the sale is affirmed by a decree of the court upon a report of the proceedings. Armstrong's App. 69 Pa. St. 409.