
    Joseph Craig et al v. Willaim Jennings et al.
    1. Where a debtor conveys lands to his creditor in trust to sell and from the-proceeds to satisfy the debt and pay the balance to the debtor; and the-debtor dies without having paid the debt, and without having elected to take the land instead of its proceeds, his personal representative is the-proper party to compel the execution of the trust by a sale of the lands.
    2. After such trust has been executed by a sale under a decree at the suit. of the administrator, it is too late for the heir to elect to take the land.
    3. If sueh sale be tainted by the fraud of the purchaser, it is for the administrator, and not the heir, to impeach it on that account.
    Motion for leave to file petition in error to the District Court of Carrol county.
    In the year 1843, one Absalom Craig conveyed to oneSimeon Jennings a tract of land by a deed absolute on its face. In 1853, Absalom Craig died, leaving the plaintiffs his heirs at law. Afterward, in 1857, one Josiah Montgomery, as administrator of said decedent, commenced an action in the Court of Common Pleas of Carrol county against said Jennings, the object and prayer of which were-to have the conveyance aforesaid declared to have been made to Jennings in trust to sell within a reasonable time,, and after satisfying a certain debt due from Craig to Jennings, to pay the balance of money realized from the sale-to said Craig. The ease was afterward appealed to the district court, wherein a final decree was rendered, in 1859, in favor of said administrator, upon finding that said deed “was in fact and intended by the parties thereto to be a. deed in trust to secure to said defendant, Jennings, the sum of $2,521.27, the amount then due from said Absalom Craig to said Jennings, and that by the terms of said trust, the said Jennings was to sell said lands to satisfy said debt and interest, and to pay over the balance (after deducting costs- and expenses) to said Absalom Craig.” The court further finding that Jennings had refused and neglected to execute-the trust, ordered the premises to be sold by the sheriff as upon execution. Sale was accordingly made to Jennings, .and after overruling a motion by the administrator to set the sale aside on account of fraud alleged against Jennings in and about the bidding, the same was approved and confirmed by the court and a deed ordered to the purchaser, .and the proceeds were distributed according to the equities ■of the parties.
    The original action was afterward commenced, in 1870, in the common pleas of Carroll' county, by plaintiffs in •error, heirs of Absalom Craig, against defendants in error, chiefly the heirs and devisees of Simeon Jennings, now deceased, seeking to establish the same trust in the same lands, which was the subject of the action and the decree In the ease of Montgomery, Adm’r, v. Jennings, above detailed.
    In their petition it is alleged “ that the said Absalom, while in life, conveyed said lands to one Simeon Jennings, then in life, but since deceased, in trust for him, the said Absalom Craig, deceased, and for his heirs and legal representatives. That the consideration of said trust was that said Jennings was to sell said lands, and, after paying the indebtedness, of about $1,500, which said Craig when in life owed said Jennings then in life, said Jennings was to give the balance of said purchase-money to said Craig.”
    Prayer for execution of the trust, a conveyance of the lands to plaintiffs, and other relief.
    To this petition an answer was interposed, setting up, ■among other things, the former adjudication, the decree and its execution, in the case of Craig’s administrator against Simeon Jennings in his lifetime.
    To this answer plaintiffs replied, setting out the record in the former suit, and alleging fraud on the part of Jennings in the conduct and management of that case.
    Upon the pleadings, judgment was rendered in favor ■of defendants in error.
    The district court, on petition in error, affirmed the judgment of the common pleas.
    
      For the purpose of reversing these judgments, leave to file a petition in error is now asked.
    
      Shober § Raley, for the motion.
    
      J. A. Ambler, contra.
   McIlvaine, J.

We think the judgments below were right. The plaintiffs’ case was, that their ancestor, Absalom Craig, had. conveyed these lands to Jennings in trust to sell, and out of the proceeds of sale to discharge his-claim against the grantor, and to pay the balance to him. By this conveyance, Craig’s interest in the land was converted into a claim for money, and, upon his death, it passed to his administrator, and not to the heir. It is true,, that Craig in his lifetime, by paying his indebtedness to Jennings, might have become the sole benficiary under the trust, and upon well recognized principles of equity, would have been entitled to elect to take the land, instead of the-proceeds of a sale. But he did not attempt either to exercise this privilege, or to qualify himself for doing’so by discharging the trustee’s interest under the trust.-

Whether this privilege, after the death of Craig, .passed to his heirs, we need not stop to inquire, for the reason that they did not offer to exercise it, orto qualify themselves-to do so, until after the trust was executed by a sale of the lands. True, Jennings did' not execute the trust, but it has nevertheless been executed under the decree of a court of equity, at the instance of the administrator, who undoubtedly had the right to insist upon its execution; at least until the heirs, by the payment of Jennings’ claim, might possibly have clothed themselves with the privilege of electing to take the land. This privilege of a cestui que trust is available only when exercised, for, until exercised, the power and the duty of the trustee to sell are continued, and when the trust is executed the privilege is at an end.

From what has been said, it follows that the plaintiffs in error, as the heirs of Absalom Craig, had no interest in these lands as such; that their interest was an equity in the proceeds ; and that their interest in the proceeds was represented by the administrator, so that the claim now made, that the proceedings by the administrator for the enforcement of this trust, do not bind them, who were not parties-thereto, is not well founded. Although they were not parties to the action, they were represented in it by the administrator. By reason of this privity, the heirs are bound by the judgment and orders of the court, as though they had been parties to the record.

It also follows, from the same views, that the allegation of the plaintiffs in error that the proceedings in the former action by the administrator against Jennings were tainted with the fraud of Jennings in making the purchase, was of no avail in the suit below, for two reasons: 1. If fraud intervened in the sale, it should be impeached by the administrator, and not the heir. 2. The administrator did allege the fraud in his motion to set aside the sale to Jennings, and the judgment of the court there invoked was against the allegation, and is still in full force.

It is also claimed that the court below erred in its rulings on the plea of the statute of limitations. We have not examined this point. The defense which we have considered was good, and any error which the court may have committed in relation to other defenses set up in the answer were not, therefore, prejudicial to the plaintiffs.

Motion overruled.  