A court of equity will not assist in carrying into effect compositions of claims by executors or administrators, unless the party praying it will first disclose all the circumstances of the case, that the court may see that there has been no fraud, and that everything was fair.1 Settlements of administration in court have the force of judgments, at least so far as imposing the burden of proof upon him who impeaches them.2 Dealings of the executor or administrator with others stand upon the same footing, it seems, with the like dealings of trustees. § 8. MORTGAGOR AND MORTGAGEE. Dealings inter sese. The relation of mortgagee to mortgagor is fiduciary in certain particulars, or rather in a limited sense. The law upon the subject of the right to redeem mortgaged property, where the mortgagor has conveyed to the mortgagee the equity of redemption, makes a near approach to the law governing the strict trust relation. It is characterized by a jealous and salutary policy. Principles are applied almost as stern as those which govern where a sale by a cestui que trust to his trustee is drawn in question. To give validity to such a sale by a mortgagor, it must be shown that the conduct of the mortgagee was in all things fair and frank, and that he paid for the property what it was worth. He must hold out no delusive hopes; he must exercise no undue influence; he must take no advantage of the 1 Clay v. Williams, 2 Munf. 105. Executors who advise a lady legatee to make a particular settlement of her fund should see that she has competent advice or full information, so that she understands what she is doing. Prideaux v. Lonsdale, 1 De G. J. & S. 433. 2 See Bigelow, Estoppel, 221, 4th ed. 3 As to the nature of this relation the masterly opinion of Sir Thomas Plumer in Cholmondeley v. Clinton, 2 Jac. & W. 182-185, should be read. Most that has since been said on the subject is only an echo of that opinion. fears or poverty of the other party. Any indirection or obliquity of conduct is fatal to his title. Every doubt will be resolved against him. The fact that the mortgagor may have knowingly surrendered and never intended to reclaim is of no consequence. If there be vice in the transaction, the law, while it will secure to the mortgagee his debt with interest, will compel him to give back that which he has taken with unclean hands.1 In deciding upon transactions between mortgagor and mortgagee equity will then jealously examine whether the latter has taken advantage of the necessities of the former. He who has the absolute control of a sale for his own benefit cannot be the purchaser unless there is fair competition of bidders or a lawful opportunity given for such competition.' When the loan has been coupled with or followed by any other transaction beneficial to the lender, the inequality of the situations of the parties will be evidence that the dealing was produced by the influence derived from the mortgage. And on this ground it will be set aside as fraudulent. Thus sales of equities of redemption may be set aside whenever, by the influence which the incumbrance gives him, a mortgagee has purchased for less than others would have given, and there has been any evidence of misconduct on his part in obtaining the purchase. Indeed it is directly held in this country that when, upon such a sale, the mortgagor sues to regain possession and for account of rents and profits, the burden is upon the mortgagee to prove, by evidence beyond the deed, that the conveyance was fair and that he paid for 1 Villa v. Rodriguez, 12 Wall. 323, 339, per Swayne, J.; Morris v. Nixon, 1 How. 118; Russell v. Southard, 12 How. 139; Wakeman v. Hazleton, 3 Barb. Ch. 148; Holmes v. Grant, 8 Paige, 245; Prees v. Coke, L. R. 6 Ch. 645; 4 Kent, Com. 143. 2 Strong, J. in Klopp v. Witmoyer, 43 Penn. St. 219, quoting from Mc Michael v. McDermott, 5 Harris, 358; 8 Webb v. Rorke, 2 Schoales & L. 673; Spurgeon v. Collier, 1 Eden, 59; Vernon v. Bethell, 2 Eden, 113; Tooms v. Conset, 3 Atk. 261; 2 Hovenden, Fraud, 180. 221. Gubbins v. Creed, 2 Schoales & L. it what it was worth, in order to rebut a presumption of fraud. On the other hand it is held in England, by the House of Lords, that a release to the mortgagee, of the equity of redemption, for the amount of the mortgage debt does not cast the burden of justifying it upon the mortgagee.2 Certainly when mortgaged premises are to be sold under orders in bankruptcy against the mortgagor, the mortgagee may, by application to the court, obtain permission to become purchaser, if he prove to be the highest bidder at the sale.3 Again one who undertakes to execute a power of sale in a mortgage is bound to the observance of good faith and to a careful regard for the interests of his principal;1 a sale under such a power will be set aside upon proof of the slightest fraud or unfair conduct.5 This however does not mean that countervailing evidence is not to be taken into account. The whole evidence must be fairly weighed. The sale will not be set aside upon slight evidence of unfairness, if met by preponderating evidence on the other side. Neither the mortgagee nor an agent for him or for himself can, as of right, purchase when exercising the power of sale. And the same is true of a pledgee.8 If a mortgagee under a power of sale is indeed, to a certain extent, a trustee in law, his own interest may still absorb the whole estate. It is pledged to him for his protection; and 1 McLeod v. Bullard, 86 N. C. 210, citing Villa v. Rodriguez, 12 Wall. 323, and Chapman v. Mull, 7 Ired. Eq. 292. 2 Melbourne Banking Corp. V. Brougham, 7 App. Cas. 307; Knight v. Majoribanks, 2 Macn. & G. 10. the slightest proof (evidence?) of fraud or unfair conduct. Ib. 857. 6 Burr v. Borden, 61 Ill. 389. 7 Martinson v. Clowes, 21 Ch. D. 8 Hayward v. National Bank, 96 U. Ex parte Duncane, Buck, 18; Ex S. 611; Chouteau v. Allen, 70 Mo. 290. parte Hammond, ib. 465. Thompson v. Heywood, 129 Mass. 401; Martinson v. Clowes, 21 Ch. D. 857. 5 Burr v. Borden, 61 Ill. 389; not however as was inaccurately stated in Longwith v. Butler, 3 Gilm. 42, upon 9 Hood v. Adams, 124 Mass. 481, 484; Robertson v. Norris, 1 Giff. 421, 424; Downes v. Glazebrook, 3 Meriv. 600. See however Warner v. Jacob, 20 Ch. D. 220, Kay, J.; Banner v. Berridge, 18 Ch. D. 254, 269 (a mortgage with a clear trust), Kay, J. his security might be greatly impaired or even sacrificed at such sale, if he were not permitted under any circumstances to become a purchaser. It has been accordingly held that where the mortgagor was privy to the sale, assented to it, and to the acquisition of title by the mortgagee, and concurred in that result after it was reached, and there was no suspicion of fraudulent practice, the sale to the mortgagee would stand. It has also been held that a mortgagee with a power of sale may purchase at his own sale through a third party, and that such sale is not subject to impeachment in the absence of proof of unfairness, attempt to stifle competition, or other fraudulent acts.2 So too it has been held in New York that a mortgagee, holding a power of attorney from the mortgagor, may sell and convey through a third party to himself, provided he act therein with the knowledge and concurrence of the mortgagor.3 A mortgagee selling under a power of attorney, and a mortgagee acting under a power of sale incorporated in the mortgage, stand upon the same footing. In the latter case the mortgage deed itself is treated, for this purpose, as a power of attorney.* Dealings with others. A single case may here be noticed. If the mortgagee of leasehold premises obtain a renewal, either by being in possession or by clandestine conduct towards the mortgagor, the renewal lease will be treated as a graft upon the old one; and the mortgagee will not be allowed to retain it for his own benefit, but will hold it in trust.5 1 Medsker v. Swaney, 45 Mo. 273. 2 Howards v. Davis, 6 Tex. 174. Dobson v. Racy, 4 Seld. 216. See Ives v. Ashley, 97 Mass. 198. 277. Medsker v. Swaney, 45 Mo. 273, 5 Nesbitt v. Tredennick, 1 Ball & B. .46. II. CONFIDENTIAL RELATIONS. § 1. INTRODUCTORY. We come now to a class of cases in which the relation in question is one of confidence in the legal sense of that term, and yet not properly fiduciary. The principles applicable to the two appear to be the same in nature, differing perhaps only in degree. Here and there the law may now require stronger evidence, or evidence of some additional fact, on the part of the plaintiff, beyond what would be necessary if the relation were fiduciary, before casting the burden of proof of fair and honorable conduct upon the defendant; but that is about all. Thus it is laid down that the relation of parent and child belongs to a different class of relations from that of trustee and cestui que trust, attorney and client, principal and agent, and the like; and the presumption (or suspicion) of objectionable conduct is not so strong. In these cases of confidential relations merely we have only to consider dealings of the parties to the relations inter sese. § 2. ENGAGEMENT TO MARRY. Undue influence may easily be exercised under the intimate relation created by an engagement to marry. In the case e. g. of a marriage settlement of the intended wife's property, drawn up by the intended husband, it is the duty of the latter to explain the provisions of the deed in unmistakable terms, and to give due opportunity to the lady for deliberation; failing which she may on the husband's death, if not before, have the settlement annulled.2 Again if a woman 1 Wessell v. Rathjohn, 89 N. C. true that a man holds the superior 377, Merrimon, J. 2 Lovesy v. Smith, 15 Ch. D. 655. But see Atkins v. Withers, 94 N. C. 581, where the court say that it is not position, and the affianced is so much under his influence that the law looks with suspicion upon any contract made between them, and will throw the bur |