HOUSTON et al. vs. CRUTCHFIELD'S ADM'R, 22 Ala. 76

I) ARC AN, C. J. There can be no doubt that the payment made by Price, the sheriff, operated as a satisfaction of the judgment and execution pro tanto, and consequently the lien, which was older than the deed of trust, was gone, to the extent at least of the payment made by the sheriff, although he made no endorsement or return of satisfaction on the writ.

Therefore it would have been the duty of Houston, the trustee, to have protected the slaves from sale, for the purpose of refunding to the sheriff the amount he had advanced to Choice, Harbin & Co;, if Crutchfield, the cestui que trust, had done nothing respecting the sale, and had not assented to it.

But I am clearly of the opinion, that, if Haynes, the grantor, and Crutchfield, the cestui que trust, knew that the sheriff had advanced the amount due on the execution to Choice, Harbin & Co., and with this knowledge, they assented to the sale under the second execution, for the purpose of refunding to the sheriff the amount he had advanced, then Houston, the trustee, ought not to be charged with the amount he paid to the sheriff at the sale.

The rule is, that if a cestui que trust assents to the violation of the duties of the trustee, his interest in the trust estate must be subjected to the protection of the trustee. This principle was announced when this cause was before us at a previous term, 11 Ala. 49; and it is asserted in the case of Booth v. Booth, 1 Beavan 126. Indeed, I think it accords with the maxim, volenti non fit injuria.

The sole question therefore is, did Haynes, the grantor, and Crutchfield, the cestui que trust, know that Price, the sheriff, had advanced the money due on the execution .to Choice, Harbin & Co., and with this knowledge did they assent to the sale of the negroes for the purpose of refunding to him the money so advanced.

That Haynes, the grantor, knew of the advance, and that he assented to the sale, is evident from his answer; but whether Crutchfield knew of the advance made by the sheriff, and with this knowledge assented to the sale of the slaves, for the purpose of refunding the sheriff the amount so advanced, depends exclusively on the deposition of Mrs. Haynes, the widow of the grantor, who was examined after his death.

She fully proves that Crutchfield knew that Price, the sheriff, had advanced the amount of the execution to Choice, Harbin & Co., and also that he advised and urged the sale for the purpose of raising the amount of the execution, and, when he was informed that the slaves had been sold for that purpose, he said it was the best that could have been done. If this evidence be admissible, then every fact is proved necessary to the protection of the trustee; but it is contended that it was properly excluded by the Chancellor, on the ground of the interest of the witness, she being a distributee of her husband’s estate.

The rule undoubtedly is, that no one can testify when his testimony tends to increase a dividend in thé distribution of which he is entitled to participate; therefore a distributee of an estate is incompetent to testify, when his testimony would tend to the benefit of the estate and to increase bis pro rata share. Williams v. Temple, 6 Ala. 656.

But if the testimony of the distributee would not be beneficial to the estate, but on the contrary would tend to decrease his distributive share, then he would be called to testify rather against than in favor of his own interest, and for this purpose he is clearly competent; and so I consider is the case of Mrs. Haynes. It is very certain that the debt due to Crutch-field is a charge on the estate of Haynes, and if Houston can be made to pay it, or any part of it, to the extent of the recovery against Houston, will the estate of Haynes be benefited, and the share of the widow be increased.

Her interest is therefore on the side of Crutchfield, and she is called to swear against. her interest when examined by Houston; for whether he gains or loses, he can have no claim against the estate of Haynes. Mrs. Haynes being a competent witness, and she proving every fact necessary to protect Houston in the amount of money he paid to the sheriff, Price, at the sale of the slaves, we think the Chancellor erred in his decree, in charging him with this sum, and to this extent must the decree be reversed.

It appears to me, that all the parties, that is, Houston, Haynes, Crutchfield and Price, labored under the impression that the execution of Choice, Harbin & Co. was still a lien on the slaves, notwithstanding the sheriff had advanced the amount of it to the plaintiff; and laboring under this impression, they all in good faith assented to the sale for the purpose of refunding the money to the sheriff.

But even under this view of the case, as Crutchfield was advised of the fact that the money had been advanced by the sheriff, and he still urged the sale in order to refund him the money, it would now be inequitable and unjust to charge Houston with the amount, when the sale was made in accordance with his, Crutchfield’s, wishes at the time. Indeed,- as' he was advised of all the facts, and acted upon a knowledge of them, he is bound by his acts; having assented to the sale, it binds himj and the onus must be borne by him.

The trustee is entitled to be protected to the extent that he paid for the slaves at the sale; but as his right extends to protection only, if he had made a profit by a resale, he could not be entitled to this profit; his equity extends to protection alone; and any profit be might or may have made on a resale of the slaves, would enure to the benefit of the trust fund. Let the decree be reversed, and the cause remanded. Note.' — This opinion was prepared by the late Chief Justice, and was delivered as the opinion of the court by Phelah, J.