
    Abraham Piatt et al. v. N. Longworth’s Devisees, Executors et al.
    1. In a suit in equity, by heirs against co-administrators, and others, to recover lands of the intestate, on the ground that said administrators wore guilty of a breach of trust in making sales thereof, where the broach is charged to be a common conspiracy by them and others, followed by separate action by each, and separate purchases for each, whereby they severally become interested in distinct parcels of the land sold — Held: I. That tho action is in its nature joint and several. 2. That a settlement with one of such administrators, and a dismissal of the aetion as to him, reserving the right to proceed against the other for a recovery of the lands in which he is separately interested, constitutes no bar to such recovery.
    
      2. An administrator can not bo directly nor indirectly interested as a purchasor'at his-own sale of the lands of the intestate, neither can he act as the agent of others, with a view of making profits out of such purchases, while his relation as trustee is still subsisting.
    3. Where he advances the purchase money, and causes such purchases to bo made in the name of another, with a view to profits, and looks to a resale of the lands by himself for a return of the purchase money and interest, he is interested in such purchases, notwithstanding ho has agreed that such profits shall go to the person in whose name the purchases are made.
    4. To constitute a variance between the allegations and the proofs, the difference must be as to the substantial elements of the case, and not as to the legal conclusions from the facts drawn by the ploadex-.
    5. Whore the administrators had filed partial accounts, which had boon settled by a competent court, aixd had thereafter made no further or final settlement with the court, hut had settled all demands of creditors, and thereupon, at the request of the heirs, made a full and final settlement with the heirs in writing and under seal of all matters of administration, and thereupon surrendered to the heirs the remaining assets — Held: 1. That as to all matters that would have boon embraced in a final account by such administrators with the court, such settlement by the parties is final and conclusive unless impeached. 2. That as to all errors or mistakes in settling said partial accounts in court, which had been a matter of record for over twenty years, and must have been known to the heirs, such settlement is final and conclusive unless impeached.
    6. That where the names of infants are signed to such final settlement, without lawful authority, they may, on coming of age, if not otherwise debarred, disaffirm the same aixd compel the administrators to make final settlement in the proper court.
    7. Such infants have a plain, adequate, and complete remedy at law, as to all matters of account, and can not invoke the aid of a court of equi ty to correct errors or mistakes in such partial or final settlements until they have exhausted their legal remedy.
    8. That, in equity, prior to the code of civil procedure, where relief was sought against trustees on the ground of fraud, the statute of limitations does not commence to run until the discovery of the fraud.
    Error reserved from the District Court- of Hamilton county.
    The action is a bill in chancery, filed on March 11, 1850, by Abraham Piatt- and others, as heirs of John II. Piatt, deceased, against the late Judge Benjamin M. Pialt, Nicholas Longworth, Philip Grandin, Jacob W. Piatt, Samuel Lewis, Lewis Howell, Catharine Longworth, David Gwynne, Isaac Dunn, George Morris, William S. Hatch, and Luther Rose, charging them, among other charges, with conspiring and confederating together with intent to cheat and defraud the heirs at law of John H. Piatt, deceased, in various matters.
    The defendants answered this bill, denying in explicit terms every charge therein.
    After taking considerable testimony by the parties, the bill was dismissed by the complainants as to Benjamin M. Piatt and Jacob W. Piatt, without reservation of their right to renew the same as to them. The journal entry of such dismissal shows, that as to them or either of them, all the matters and things complained of are “ fully explained, settled, and adjusted.”
    The right to continue the action, as to Longworth and the other defendants, is expressly reserved, in the follow-terms : “ Provided, nevertheless, that the complainants may retain the name of the said Benjamin M. Piatt as a party defendant, for the sole and only purpose of enabling them to recover against the said Longworth his, the said Longworth’s, moiety or half of any sum or sums for which said Longworth and said Benjamin M. Piatt may be jointly liable as administrators, and in such cases only wherein the the law requires the pursuit of a joint remedy, the object of so retaining the name of the said Benjamin M. Piatt being only to enable the said complainants to recover from said Longworth one moiety or equal half of what may be so found due against said defendants as administrators, and all other rights and remedies which said complainants may have against said Longworth are also hereby reserved.”
    In June, 1865, Nicholas Longworth died, and his executors and devisees were subsequently made parties defendant.
    In June, 1870, of Common Pleas, the bill was heard upon bill, answers, replication, exhibits, and proofs, and dismissed; it was then appealed to the District Court of Hamilton county, and by that court reserved for hearing and decision to this court.
    John H. Piatt was a man of large property, extensively engaged in business. He had been a contractor, with the United States for supplying the Northwestern army. He died intestate, about February 11,1822. At the time of his death he was very largely in debt and his real estate heavily incumbered. Among other liabilities was one to the Rank of the United States for a sum exceeding $800,000. To secure the payment of this debt, real estate of considerable value had been mortgaged.
    . Benjamin M. Piatt, a brother of the deceased, and Nicholas Longworth, Esq., were appointed administrators of the estate. They accepted the trust and entered upon its duties. Among other matters which engaged the attention of the administrators was this debt to the Bank of the United States; the administrators and heirs deemed it of the utmost importance to secure an extinguishment of this debt without resorting to other assets than the property mortgaged. Negotiations were commenced for that purpose, which finally ended in the hank taking the mortgaged property in satisfaction of the debt and other claims against the estate. The heirs concurred in this settlement and released their interest in the property to the bank. Mr. Gran din, who was a brother-in-law of the deceased, and whose widow is one of the heirs, says that “ this property would not have brought, at a sale, one-half of the mortgages and debts; ” and Geo. W. Jones, the agent of the bank, examined by the complainants in January, 1854, testifies that in ten years after the property was taken, “In my own estimate, and by the estimate of three disinterested individuals, who were engaged to assess the value, stated it to be worth, at that time, between $260,000 and $270,000; that the rent derived from the property at that period was not more than equal to one-fourth of the interest.”
    On January 10, 1825, the administrators filed, in the proper court, an account in which they charged the estate, among other items, with amount “ paid to the Bank of the United States, by a release of tbe equity of redemption to the mortgaged premises, as per voucher No. 17, $300,873.69.” They charge themselves with various sums, and among them, “ To amount of sale of real estate, under mortgage, to the Bank of the United States, the equity of redemption to which was released by the heirs and administrators in full discharge of the debt, with sundry other provisions, such as the discharge of the deceased from all indorsements, etc., as will be seen by the detailed statement on file and vouchers therein numbered 17, $300,873.69.” “Administrators charge on the disbursements, six per cent., $18,137.17.”
    This account was passed by the court, and the court allowed the administrators the $18,137.17 as fees. Subsequently a creditor filed exceptions to the account, and to this allowance of $18,137.17, and on full hearing, at the November term, 1825, the court overruled the objections and confirmed the allowance. The bill charges that the administrators “unlawfully and corruptly” made this charge, and that they made false and fraudulent representtions as to this transaction; all of which is denied.
    Upon application made to the court, an order of sale of decedent’s lands, to pay debts, was made; and in July, 1825, February, 1827, and May, 1829, sales of real estate were regularly made, reported, and approved by the court, and deeds afterward made to purchasers.
    The bill charges (omitting the charges against B. M. and J. W. Piatt, and those claiming under them), that certain of these sales, viz: those to Catharine Longworth individually, to Lewis Howell and Catharine Longworth jointly, and part of the sales to Samuel Lewis, were fraudulent in manner hereinafter stated.
    The bill further charges that “ this administrator, a few days before the sale in July, 1825, with intent to defraud the heirs of said John H. Piatt, conspired and confederated with sundry defendants, including the purchasers just named, and agreed with them that they should become purchasers at the lowest possible prices at such sale of por-. tions of these lands ; that no money was to be paid or required of them; that they should not pay or be accountable for anything on their bids, but act as the instruments of said administrators to enable them to obtain a title to a portion of the real estate of said decedent at the time of his death; and your petitioners further show unto your honor that, in accordance with the arrangements so made and entered into by and between said confederates, they, the said administrators, did on the 18th,- 19th, and 20th days of July, 1825, a. d., proceed to expose for sale a large portion of the real estate of said decedent.”
    It is further alleged that in pursuance of this fraudulent agreement numerous parcels were sold to J. "W". Piatt, who, it is said, acted “ as the mere tool of his father,” B. M. Piatt, one of the administrators; also to Catharine Long-worth, Lewis Howell and Catharine Longworth, and Samuel Lewis, “ who were the instruments of Longworth, all of which sales and conveyances were without consideration, and were intended as a shift, to enable said Longworth to become the purchaser in fact at said sales;” that no money was paid except by Longworth himself, who advanced his share of the fees so illegally charged as administrator, or rather the price for which said real estate was so bid off was charged to the.administrators in their accounts with said estate, no money being used in the transaction.
    It further charges that, in consummation of said fraudulent purpose, Longworth took reconveyances of this property to himself shortly after making conveyances to these purchasers.
    January 10, 1825, the administrators filed their first accounts, showing receipts $302,286.23 and disbursements $303,993.25.
    The item of $300,873.69 due United States bank is debited to themselves “ to amount of sale of equity of redemption,” etc., and credited to them “ by amount paid the bank ‘ by a release of the equity of redemption,” etc. These were fictitious entries. No money was received or paid out in the settlement of this claim.
    No further accounts were ever filed in court. On June 19, 1846, the heirs of Piatt and the administrators entered into an agreement by which the latter surrendered up the estate to the heirs, and ceased to act further in the premises. This agreement is as follows:
    “This agreement between Benjamin M. Piatt and Nicholas Longworth, administrators of John H. Piatt, deceased, of the one part, and Abraham S. Piatt, Philip Grandin, and Hannah C. his wife (late Hannah C. Piatt), John P. Dunn, Jacob P. Dunn, George Dunn, George Tousey, and Hannah Ann his wife (late Hannah Ann Dunn), William 0» Layton, and Sarah Jane his wife (late Sarah Jane Dunn), and Strange S. Dunn, children and heirs-at-law of Frances Dunn, deceased (late Frances Piatt), and Francis E. Smith and A. Clark Smith, children and heirs-at-law of Mary E. Smith, deceased (late Mary E. Dunn, one of the children, and said Francis Dunn), all heirs-at-law and distributees of the estate of said John H. Piatt, deceased, of the other part, witnesseth that as a full settlement had this day with the said administrators, and in consideration of the relinquishment by them of all claims for advances made to said estate upon the lands descended to said heirs and to B. M. Piatt (who is also one of the heirs of said John H. Piatt), situate in or near Toledo, in Lucas county, in the State of Ohio, and a farm in Shelby county in said state, and of all their interests as administrators as aforesaid in the claims of said J. H. Piatt’s estate against the government of the United States and against the estate of Daniel Parker, deceased, now in suit in the city of Washington, and against the heirs of Josiah Harmon, deceased, for property in Cincinnati and whatever interest they may have in what is called “ Park Place,” in Cincinnati, or any other real estate in the State of Ohio or in any other state; also for all debts or claims now known or may hereafter be found to be due to said estate; and in further consideration of the release by said Benjamin M. and Nicholas to said heirs (saving the rights of said Benjamin as one of the heirs) of all right, title, and interest of, in, and to the lands lying within the State of Illinois, conveyed to them as administrators of said John H. Piatt to Thomas Slov (which release they will execute when required), the said heirs and distributees of said estate hereunto subscribing do hereby make a final settlement thereof with the administrators and with each of them, and severally release them and each of them from all claims and demands against them or either of them as administrators aforesaid. The said estate as to the parties to this agreement is hereby fully settled, and any claims held by said administrators against said estate for advances or otherwise in their own names or in the names of others for them, or for the benefit of either of them, are also hereby settled so far as the parties hereto are concerned; the above being a full and complete settlement had this day of all matters that have been administered by and through the said Benjamin M. Piatt and Nicholas Long-worth as administrators aforesaid.”
    It was signed and sealed by the administrators and all the heirs of John H. Piatt. Two of these, Francis E. Smith and A. Clark Smith, were minor children of Mary E. (Dunn) Smith, deceased, who, through her mother, Frances (Piatt) Dunn, was an heir.
    These minors names were signed “ by Jacob P. Dunn,” who acted for them, but by what authority does not appear.
    The bill charges that this settlement was obtained “by fraud, deception, and concealment,” in this, that a full, true, and complete exhibit of the real condition of the estate was not made; but a false and deceptive showing was made, by reason of which they were misled. It charges that the administrators did not account for large amounts of assets, and withheld information of discounts obtained in payments of claims, as well as the fact of their charge of over $18,000 illegal fees as aforesaid.
    The bill calls for a discovery as to all these matters, avers the heirs had no knowledge of these fraudulent transactions until within eight months before filing the same, and prays that a full and detailed account may be required of the administrators, showing, item by item, receipts and disbursements.
    It also prays for an account of the real estate so purchased and resold, *and for a decree for the land still unsold, and for general relief.
    The answer of Longworth, under oath, fully and specifically denies all these allegations.
    Philip Grandin, charged with complicity in these matters, died in 1858, and this suit as to him is abated.
    By the compromise with B. M. Piatt and J. W. Piatt, all matters as to them are out of the case, leaving the case to stand as to Longworth and those acting with him.
    This is an outline of the facts. A more detailed statement of those relating to the points in controversy will be found in the opinion of the court.
    
      John F. Follett and _D. M. Hyman, for complainants :
    I. We claim that at the sale made by the administrators purchases were made in the name of Catharine Long-worth and others. The title thus acquired became afterward vested in Nicholas Longworth, one of the administrators ; and to some of this property he continued to have title down to the time of the commencement of this suit, and, as to this portion, the claim is to have Longworth declared a trustee, and his representatives required to convey to the heirs of John H. Piatt, deceased, and to account to said heirs for the rents and profits down to the time of such conveyance.
    Longworth was one of the administrators, and, in contemplation of law, a trustee for the heirs and incapable of becoming a purchaser for his own benefit, or interested in such purchase of the property of the estate, and any such purchase made by him inured to the benefit of'the estate. Armstrong v. Huston, 8 Ohio, 552; Dunlap v. Mitchell, 10 Ohio, 117; Glass v. Greathouse, 20 Ohio, 503; Sheldon v. Newton, 3 Ohio St. 494; Barrington v. Alexander, 6 Ohio St. 189; Riddle v. Roll, 24 Ohio St. 572; Michoud v. Girod, 4 How. (U. S.), 503; Story on Agency, secs. 210, 211, et seq., and notes; 1 Story’s Eq. Jur., secs. 315-324; Hill on Trustees,* 159, 160, 162, 536, and notes; Perry on Trusts, secs. 194-197, 205, 206, and notes; Devoue v. Fanning, 2 Johns. Ch. 252; Brothers v. Brothers, 7 Ired. Eq. 150; Hawley v. Cramer, 4 Cow. 717; Longworth v. Goforth, Wright, 192; Beaubein v. Poupard, Harr. Ch. 206; Woodruff v. Cook, 2 Edw’s Ch. 259; Hunt v. Bass, 2 Dev. Eq. 292; Paul v. Squibb, 12 Penn. St. 296; Buckles v. Rafferty, 2 Rob. (Va.), 292; Rham v. North, 2 Yeates, 117; Beeson v. Beeson, 9 Barr, 279; Mitchum v. Mitchum, 3 Dana, 260; Wyncoop v. Wyncoop, 10 Ind. 206; Jewett v. Miller, 10 N. Y. 402; Ward v. Smith, 3 Sand. Ch. 592; Lazarus v. Bryson, 3 Binn. 59; Winn v. Dillon, 27 Miss. 494; Lewis v. Hillman, 3 H. L. Cas. 629; Bunnel v. Stoddard, 2 Am. L. Rec. 145; The York Building Co. v. Mackenzie, 8 Tomlins, 42, and many others; Abbott v. American, etc., Co., 33 Barb. 578; Obert v. Obert, 2 Stockt. (N. J.), 98; Scott v. Gamble, 1 Stockt. 218; Rosenberg’s Appeals, 26 Penn. St. 67; Robbins v. Butler, 24 Ill. 387; Charles v. Dubose, 29 Ala. 367; Page v. Naglee, 6 Cal. 241; Hoitt v. Webb, 36 N. H. 158; Glass v. Greathouse, 20 Ohio, 503; Michoud v. Girod, 4 How. (U. S.), 503; Barrington v. Alexander, 6 Ohio St. 189; Riddle v. Roll, 24 Ohio St. 572; Green v. Winter, 1 Johns. Ch. 27; Horne v. Fonda, 5 Johns. Ch. 409; Boyd v. Hawkins, 2 Dev. Ch. 195; Piatt v. Oliver, 3 How. 479; Story on Agency, sec. 211; Story on Eq. Jur., secs. 321, 322; Cram v. Green’s Adm’rs, 6 Ohio, 429; Story’s Eq. Jur., secs. 531-2-3-5-8-540-1; 2 William’s Ex’rs, 1819; Piatt v. St. Clair, 6 Ohio, 227; Stiver v. Stiver, 8 Ohio, 217; Matoon v. Clapp, Ib. 248, Code, sec. 602.
    II. The release of June 19, 1846, furnishes no barrier to the relief prayed for.
    As to the light in which transactions between parties are regarded in equity, see Adams on Eq. 184; Hill on Trustees, 525; Ringold v. Ringold, 1 Harr. & Gill. 11; Byers v. Hockney, 6 Ga. 419; 1 Story’s Eq. Jur., secs. 351, 322; Perry on Trusts, secs. 851, 928; Boerum v. Schenck, 41 N. Y. 182.
    The release does not purport, and was not meant, to extend or apply to that branch of the case which seeks to have the administrators declared trustees as tq the real estate purchased by them. It does not extend to, and was never intended to embrace any claim of the heirs to be relieved against a purchase of real estate made by Nicholas Longworth.
    As to the real estate, Mr. Longworth is not sued as “ administrator; ” he is sued to obtain a title which he has wrongfully acquired, and his character as administrator is no further involved than to prove the wrongful mode of its acquisition.
    The purpose for which the parties met was the settlement of accounts, and the release was the result of that settlement. But it was intended to operate, and was so drawn as to be made to operate, only on,the subjects settled, and the claim of the heirs upon real estate which had been publicly sold by the administrators was, professedly, not one of those subjects. The administrators agreed to hand the assets over to the heirs, notwithstanding that they claim that, on a full and detailed examination, it would appear that the estate was indebted to them. They were willing to do this because, as the accounts were complex and of long standing, they were anxious to have them closed and to be discharged from their duty to come to a strict settlement. And the heirs, thus made to believe these statements to be true, were willing to execute the release, in order to come into immediate possession of their property; and the release was drawn in view of these circumstances, and made to operate only on the liability arising out of the duties of the administrators “ as administrators,” and it would be to do violence to language to construe these words as extending further.
    But if the court should be of opinion that said settlement and release is a bar to the right of the complainants to require the defendants to account for and pay over to them the personal assets which came to their hands, it in no wise follows that the complainants would also be barred of a recovery for a breach of trust not embraced in such release, and in an action for relief founded upon such breach of trust, all matters affecting the equitable rights of the parties may be inquired into, even though such matters, standing. by themselves, may have been fully adjusted by a binding and conclusive settlement. To an instrument like this, obtained as this was, and between parties sustaining the relations to each other that they did, a court of equity will not give such construction as to extend its operation or embrace any subject not within the very words of the instrument. The defendants set it up as a bar to a claim made against them as trustees for an alleged breach of trust, and to make it available for that purpose they must show that the parties executing the instrument intended to release them from the identical breaches alleged.
    If we are wrong on the question of construction, we contend that the release is inoperative and void, on the ground that the cestuis que trust had not proper information of their own rights and the liabilities of the trastees, imperfect information being equivalent to concealment. Michoud v. Girod, 4 How. 561.
    It lies upon the trustee who would avail himself of such release to prove that the cestuis que trust, at the time of its execution, had full information and knew and fully understood the scope and effect of such release. Hill on Tr. *527, 525; Perry on Tr., secs. 851, 867, 923; Randall v. Errington, 10 Ves. 423; Lindon v. Wright, 4 Beav. 427; Downs v. Glazebrook, 3 Mer. 208.
    As to the disposition made by the administrators of the moneys that they had received as such administrators, the heirs were, at the time of the execution of such release, and are still in total ignorance. They then claimed to hold the claims of creditors of the estate to an amount largely in excess of the assets that came into their hands, but what they paid for such claims was not disclosed then, and is still a secret carefully concealed from the heirs. “An executor or administrator can not buy any of the debts of the deceased for his own benefit; but the benefit will belong to those interested in the estate.” Story on Agency, sec. 211; Story’s Eq. Jur., secs. 321, 322; Ex parte Lacey, 6 Ves. 625.
    Again, the release was totally without consideration in fact or in law. All that was done or promised by Piatt and Longworth was to hand over to the heirs the surplus assets of the estate in their hands, and to that the heirs were entitled already. The administrators certainly pretended that on a technical settlement of the accounts a balance would be found to be due to them, and this they agreed to release. And Mr. Longworth is bound to prove that there was a balance against the estate, if such was the fact. It was his clear duty to keep full, accurate, and true accounts, and, when he came to a settlement of them with the heirs, to produce and, if necessary, explain them. If, having neglected this, the heirs chose, for the purpose of obtaining the rightful possession of their own, to release him from any liability arising upon accounts not so produced and explained, he is bound, when the correctness of his statement is denied, to prove its truth, and unless it is so proven it is to be assumed as not being true; and that is exactly this case, and the result is that the release is before the court, unsupported by any evidence of consideration. Pearce v. Genet, 1 Jac. & W. 135; Freeman v. Fairlie, 3 Mer. 24-42; Kennedy v. Brown, 13 C. B. N. S. 677; 1 Story’s Eq. Jur., sec. 527a; Chadwick v. Wheatley, 2 Coll. C. C. 137; Hill on Trustees, *580, 581, 582; Walker v. Symonds, 3 Swanton, 73.
    And, finally, Mrs. Grandin was a feme covert, and some of the representatives of Mrs. Dunn, a sister of the intestate, were infants, as to all of whom the instrument was absolutely void. Wedderburne v. Wedderburne, 4 M. & Cr. 50; Dunlap v. Mitchell, 10 Ohio, 120; Hill on Trustees, *526, and notes d and 2; Perry on Trusts, secs. 923, 851.
    III. Lapse of time and the statute of limitations.
    
      There are two applications of the law of this question required by this case: one as presented by the claim made by the bill to settle and adjust the accounts of the administrators, and the other by the claim to have Longworth decreed a trustee of the real estate conveyed to him; and we shall first discuss its application to the last claim as above stated.
    It is here material to consider the legal attitude of the contending claimants of the ownership.
    By the death of John H. Piatt that ownership became vested in his heirs-at-law; but at that time there was no adverse 'claim, and no statute of limitations had begun to run, or none under which Longworth claims title. The ownership of the heirs was coupled with the power of the administrators, conferred by law, to convert the real estate into money, if necessary, for the payment of debts; and when, as in this case, it is apparent from the outset that at least a portion of the real estate will be required to pay debts, it is their duty to pay the taxes and preserve the property, and they were trustees for the -creditors and heirs according to their interests. On a valid sale for the payment of debts, the ownership of the heirs would have been transferred to the purchaser, but they would have retained the right to object to the propriety of the proceeding and to sue for the recovery of the property, and the suit for this object, whether legal or equitable, as to all who were under no disability, would have continued for the period of twenty-one years after the purchasers had taken possession under their conveyances so as to make their possession adverse. This did not occur under the conveyances by the administrators, certainly, until after they were executed, and the earliest of these was not executed until May, 1827, and the last not until December, 1834; so that as to nearly all the property and as to all the heirs who were sui juris, as well as those who were not so, the suit, which was brought in March, 1850, was regularly in court six years before the expiration of the limitation of the statute. But more than that, Mrs. Grandin was a feme covert, and her disability was not removed until long after the commencement of this suit, and the children of Mrs. Dunn were infants ; while Abraham S. Piatt, the only remaining complainant, and all the Dunn heirs were, at the time the right of action accrued, non-residents of this state, and have so continued to be ever since. And so upon the strict ietter of the law the suit is in time as to most of the property, and it is so as to all of the property to the extent claimed by those who were under disability when the right to bring suit accrued.
    If the right of action is saved as to any of the complainants, such saving inures to the benefit of all, in such a case as this. Angell on Limitations, sec. 434; Sturges v. Longworth, 1 Ohio St. 544; Massie’s Heirs v. Matthews, 12 Ohio, 351; Meese v. Keefe, 10 Ohio, 364; Wilkins v. Phillips, 3 Ohio, 50; Kennedy’s Heirs v. Duncan, Hardin, 365; Glass v. Greathouse, 20 Ohio, 503; Vaughn v. Bacon, 3 Shep. (Me.), 455; Farran v. Eastman, 7 Fairf. (Me.), 191; Porter v. Hill, 9 Mass. 34; Creswell v. Attemus, 7 Watts (Penn.), 566.
    But the title of the heirs, at the time of the commencement of this suit, was an equitable title, and the real question is that of the effect of lapse of time upon their right to come into a court of equity to enforce it. The technical legal title has been taken from them by the conveyances made, under color of law, by the administrators under the order of the court; and when the legal title became vested in Mr. Longworth, all they had was a right to sue in a court of equity to compel him to restore it to them. This was, in its nature, a right to sue for the recovery of real property, and the rules which determine the effect of lapse of time upon such suits are substantially the same as those which govern the action of ejectment to enforce the legal title. The period is the same, and -the qualifications, exceptions, and savings are the same, the analogy to the statute at law being followed throughout. The limitation dates from the time when the right to sue in equity becomes complete, and, if those who have the right to sue are under disability, the right is saved to them to the same extent that it would be if this right was legal. In the instance where the subject of the suit is real estate, the right to suq at law accrues when the possession becomes adverse; but in equity the legal title and .possession of the trustee are subservient to the trust, and are not adverse until made so by distinct and unequivocal acts, amounting to the ouster of the beneficial owner, and the statute of limitations does not apply; and when the possession of the trustee is made hostile and adverse, the statute does not begin to run until the beneficial owner is made fully aware of his rights and of the intention of the trustee to claim in hostility to him. Bowen v. Evans, 2 H. L. Cas. 257; Warner v. Daniels, 1 W. & M. 111; Daggett v. Emerson, 3 Story, 700; Phalon v. Clark, 19 Conn. 421; Hallett v. Collins, 10 How. (U. S.), 174; Michoud v. Girod, 4 How. (U. S.), 503.
    And it is for the defendant to prove this knowledge. See cases above cited. Callender v. Colgrove, 17 Conn. 1.
    
      “ It is clear that a person in ignorance of his right can not be presumed to have abandoned it.” Perry on Trusts, sec. 867, and cases cited in note 2; Long v. Mulford, 17 Ohio St. 484.
    The effect of lapse of time, in equity, has sometimes been made to depend upon the distinction between express and implied trusts. An “ express trust will not be barred by any length of time, for in such cases there is no adverse possession, the possession of the trustee being the possession of the cestui que trust.” Hill on Trustees, * 264; Perry on Trusts, sec. 863, and cases cited in note 8. Williams v. The First Presb. Church, 1 Ohio St. 478; Beaumont v. Boultbee, 5 Vesey, 485; Townsend v. Townsend, 1 Cox, 28; Chalmer v. Bradley, 1 J. & W. 51; Attorney-General v. Brewers’ Co., 1 Mer. 495; Weddeburn v.Weddeburn, 2 Keen (S. C.), 722; 4 M. & C. 41; Piatt v. Oliver, 3 How. (U. S.), 333.
    But even in the case of an express trust, the claim of the trustee may become adverse, so that time will run under the statute of limitations; but this case only occurs when the “ trustee, with the full knowledge and consent of the cestui que trust, has divested himself of that character by parting with the legal estate, and settling his accounts and obtaining a release from the persons beneficially interested,” or by decree of the court. Hill on Trustees, * 265; Weddeburn v. Weddeburn, 2 Keen, 749, and 4 M. & C. 52; Portlock v. Gardner, 1 Hare, 594; Wickliffe v. Lexington, 11 B. Mon. 161; Perry on Trusts, sec. 864.
    Besides, two of the three parts of the interests claimed by the suit belong to parties who from the first, and down to the commencement of the suit, were femes covert or infants. Bigelow v. Bigelow, 6 Ohio, 96; Larrowe v. Beam, 10 Ohio, 498, 503; Lockwood v. Wildman, 13 Ohio, 430, 452; Gibler v. Trimble, 14 Ohio, 323; Perry on Trusts, sec. 864; Michoud v. Girod, 4 How. (U. S.), 503.
    As we have shown, it was the duty of the administrators to have settled this estate as early as 1830; and yet, in violation of this clear, legal duty, they made no attempt at settlement until June, 1846. It was the duty of the administrators to keep clear, distinct, and accurate accounts, and to produce these accounts to the parties interested in them. Perry on Trusts, secs. 821, 822.
    If they did riot, and none such have been exhibited by these administrators, all presumptions are against them, and all obscurities and doubts are to be taken adversely to them. Blaewalt v. Ackerman, 23 N. J. Eq. 493.
    These plain, legal duties were disregarded by the administrators, and, as a necessary consequence, the heirs now complaining were delayed in the assertion of their rights. But shall Mr. Longworth, in a court of equity, be permitted to urge the consequences of his own wrong as a defense against his wrong! "Will he, or those claiming under him, be permitted by the chancellor to defend fraud by fraud ? To defend an abuse of trust by an abuse of trust!
    “ An abuse of trust can confer no rights on the party abusing it, nor on those who claim in privity with him.” Lord Ellenborough, in decision of Taylor v. Plummer, 3 M. & S. 574.
    
      Caldwell, Coppock § Caldwell, also for complainants.
    
      P. L. Spooner, for complainants,
    filed an elaborate brief, but the argument given above includes his points.
    
      C. D. Coffin, for defendants:
    I. It is claimed by the counsel for complainants, that a sale of trust property to a stranger, and a resale within a few days to the same trustee, is conclusively presumed to be merely a means of getting the property into the trustee’s hands. This rule, if true, would have no application to the case at bar, because no such state of facts exists. The rule, as stated by the learned counsel, is too broad; a well-defined qualification is omitted, and that very qualification shows that the rule can have no application to the case at bar.
    To authorize a court to presume the resale to be merely a means of getting the property into the trustee’s hands, the circumstances must clearly show that the property did not rest in the possession of the vendees' at the trustee’s sale, and that the two transfers were part of and constituted but one transaction. Abbott v. A. H. Co., 33 Barb. 580; Glass v. Greathouse, 20 Ohio, 516.
    To my mind it is clear, that when the title of a vendee at an administrator’s sale is perfected and the estate has no longer any title to or lien upon the land sold, the fiduciary character of that administrator, as to the land sold, ceases, whether he continues to administer other property which were of the deceased or not. Why did the administrator stand in a fiduciary relation to that land 1 Merely because it belonged to the estate; but when it ceased to belong to the estate he ceased to bear that relation. This is unquestionably so; and all this property ceased to belong to the estate long before Mr. Longworth purchased it. And it is equally clear, it seems to me, that the same principle applies from the time payment in full is made, though the mere naked legal title remains for a short time in the heirs, before it is conveyed by the administrator to the purchaser. In the opinion and reasoning of the court in Barrington v. Alexander, 6 Ohio St. 189, the court had reference to the facts of that case; but the reasoning of the court, and the decision upon the point now under discussion, sustain this principle.
    And, indeed, without going here into a minute examination of the adjudged cases, I venture to say that it will be found that in every well-considered ease, where the relation of the administrator to the property of the estate is spoken of as of a fiduciary character, that relation is confined to the time when the property belonged to the estate, and while the administrator, as such, has some duty to perform in regard to it for the estate, and that when it rightfully ceased to belong to the estate, and he is no longer charged with a duty in respect to it on behalf of the estate, his fiduciary relation to it ceases, and, as to it, he stands precisely as though it had never belonged to the estate.
    I deny, however, that by any just inference the facts as to the times of the execution and recording of the deeds, as to this property or any part of it, can be held as proving anything against Mr. Longworth.
    There is nothing, I submit, in the facts of this case, to authorize the holding, by the court, that the. public sales in 1825 and in 1827 were not bona -fide sales on the part of the administrators, and of each of them,' as well as on the part of the persons who were reported to the court as the vendees, or that there was any improper conduct by anybody in relation to those sales.
    II. As to acquiescence, settlement, release, and ratification—
    1. The long acquiescence by all the heirs of Piatt in these sales, without any objection, bars them the right to contest the validity of these sales. Ormsby v. Longworth, 11 Ohio St. 667; 2 Denio, 581; Davis v. Gray, 17 Ohio St. 330; Hawley v. Cramer, 4 Cow. 743; Gregory v. Gregory, Cooper’s Ch. Cas. 201; Bergen v. Beard, 1 Carnie’s Cas. in Error, 1, Jeneson v. Hopgood, 7 Pick. 8; 2 Bro. Co. 426; Glass v. Greathouse, 20 Ohio St. 516; 12 Ohio, 193; 14 Ohio, 547; 2 Wall. 87; 21 Id. 178.
    2. The fact that Mrs. Grandin and Mrs. Dunn were femes covert is no answer to this long delay, and acquiescence. If their interests were adverse to their husbauds, they could have brought shit in equity by their next friends; if their interests were not adverse to their husbands, they could have sued alone, making their husbands parties defendant. Camut v. Buckle, 2 Peere Williams, 244; Roberts v. West, 15 Geo. 124; Griffith v. Hood, 2 Ves. Sen. 452; Sigel v. Phelps, 7 Simons, 239; Hughes v. Evans, 1 Simons and Stewart, 185; Reeve v. Dalby, 2 Simons and Stewart, 464; Grant v. Schoonhoven, 9 Paige, 255, 257; Story Equity, P. S. 61; Mitford by Jeremy, 28; Cooper, 30; Fullon v. Rosevalt, 1 Paige, 178.
    Without further discussion upon this point, I submit that the defendant, Abraham S. Piatt, who acquiesced in these sales for about twenty-five years, Mrs. Hannah C. Grandin, who acquiesced for a period of about forty-five years, and the heirs of Mrs. Ei-aneis Dunn,' because of her acquiescence for thirteen and fifteen years, and of their ■own for ten years, should be held to have neglected to pursue their remedy, if they ever had any, within a reasonable time, and for that reason the bill should be dismissed.
    III. Now as to this paper writing of June 19, 1846.
    Without repeating the charges of fraud by the complain■ants in regard to this settlement, I may say that every charge in the bill as to it is proved by the testimony to be •untrue, save one, and that one is a charge of withholding knowledge of a fact, which fact did not exist, and conse•quently it could not be concealed.
    The paper writing is in effect a ratification of the acts of •the administrators, a settlement of all claims, and a release •of all liability by the administrators.
    While it is well settled that, in a purchase by a trustee .at his own sale, he shall not be permitted to make profit, and the cestui que trust may set it aside, it is equally as well settled that the cestui que trust may confirm it, and that if after full knowledge of the transaction he does confirm it, or if he does not in form confirm it, but does not pursue his remedy within a reasonable time, he is held to have acquiesced in the sale and to have confirmed it. Campbell v. Walker, 5 Ves. 678-13; id. 600; Lester v. Lester, 6 Ves. 631; Jeneson v. Hapgood, 7 Pick. 2, 7, 8 ; Litchfield v. Cudworth, 15 Pick. 23, 24, 30, 31; Prevost v. Gratz, Peter’s C. C. 364, 368; Harrington v. Brown, 5 Pick. 519, 521; Gallatin v. Cunningham, 8 Cowan, 362, 377, 380, 384; Hawley v. Cramer, 4 Cowan, 719, 743; Haywood v. Ellis, 13 Pick. 272, 276; Dunlap v. Mitchell, 10 Ohio, 117, 126; Wade v. Pettibone, 11 Ohio, 57; Glass v. Greathouse, 20 Ohio, 517.
    The paper exhibited as a settlement and release is prima facie both, and is also, in effect, a ratification of the acts of the administrators.
    To my mind the words of the deed are broad enough to cover a “ full,” “ complete,” and “ final settlement,” and a “ release ” of the claim now made as to the property sold.
    These parties, when the settlement was made, had full knowledge of all the facts to enable them to act understandingly in the matter.
    All the heirs of Piatt were fully advised before, at, and after the sales of everything connected with the property and with the sales. Indeed, they all were well informed, as Judge Piatt testifies, “ with regard to the affairs of the estate,” were frequently in the habit of visiting Cincinnati, and conversing about the estate and its administration, and this state of affairs continued down to the day of settlement.
    It is rather a striking fact in regard to this settlement, that every allegation of the bill as to it is untrue. There is not a particle of testimony tending to prove that this settlement or paper writing “ was procured by fraud, deception, and concealment.”
    No sale has been made, in any manner, whereby the legal title to the land sold had vested in the administrators, or either of them, or in their agents. The sales were known to the heirs at the time they were made. The sales were reported. The heirs had copies of the returns at this settlement. They knew who bid, who purchased, what they purchased, and the price they paid. They knew that the moneys received from these sales were applied to the payments of the debts, thereby enabling them, as heirs, to realize a large estate — a fortune. With all this knowledge, they take possession of this large estate, proceed to, and do realize not only land, but large sums • of money ; discharge the administrators from the further execution of the trust, and execute the paper writing of June 19th, 1846, as a release and final settlement.
    
    IY. As to consideration :
    There is a consideration expressed in the deed itself — a consideration expressly stated by the parties thereto, and that consideration is abundantly sufficient to sustain it. It was certainly a legal consideration; it is also good as an equitable consideration. It was a valuable consideration to the heirs; it was a surrender by the administrators of large claims due to them, and it also put the heirs in possession, and gave them immediate control of a large and valuable property. It is said by the counsel of the complainants that the heirs were entitled to all this already. The anxiety of the heirs to make this settlement to secure the release of the administrators of large claims, and to obtain the immediate possession of these valuable assets, shows that neither they nor their counsel thought so then; and they were undoubtedly right in their opinion. It was the settling and dosing of the administration of an estate, and the debts having been fully adjusted, the parties had the right so to do, and the doing of which is a highly favored consideration for such agreements.
    Y. As to the claim that some of the parties were infants and others were femes covert:
    
    An instrument signed by an infant is not void, but voidable. It is good until disaffirmed; and it is held to be ratified, unless disaffirmed within a reasonable time after arriving at full age. Sharswood’s fifth edition of Smith on Contracts, 282 ; 14 Ohio, 547; 12 Ib. 193.
    Now as to the femes covert. If this instrument was claimed to be an agreement on' their part to bind land, it certainly would not conclude them, because our statute prescribes an exact manner by which that is to be done, and this paper is not so executed.
    But why may it -not be held as an averment — parole declaration, if you please, on their part, or written declaration deliberately made, that the matters alleged in the instrument are true. It is conceded that, as the law then stood in Ohio, a feme covert could not, at law, bind herself in that manner. But courts of equity have held otherwise. Hulme v. Tenant, 1 Bro. Ch. 16; Bulpin v. Clarke, 17 Ves. 365; Stuart v. Lord Kirkwall, 3 Madd. 387; Murray v. Barlee, 4 Simon, 82; 3 Mylne & Keene, 1; 1 C. & P. 48; 4 M. & C. 377; 20 Ohio St. 371.
   Johnson, J.

The complainants present three distinct claims for relief :

I. They charge that the claim for over $18,000 as commissions for settling the debt to the Bank of the United States was illegal.

II. That as only a partial settlement of their accounts was made in 1828, and no final account was ever made, that Longworth should be compelled to make such settlement according to law; and to this end they ask to be relieved of the settlement of June 19,1846, which is alleged was obtained by fraud and concealment.

III. That the sales of land to or for Catharine Long-worth, Elizabeth Morris, and John Longworth, his sisters and brother, and reconveyance back, was a breach of trust by Mr. Longworth.

To these claims the respondents interpose and say:

1. They deny specifically all fraud or concealment.

2. They insist that this allowance of commissions for settling the bank debt was for services actually rendered of great value; that the matter was duly examined and properly allowed by the court in 1825 upon exceptions thereto, and can not now be re-examined.

3. That the settlement of June 19,1846, is free from fraud and concealment, and is full and final as to all matters complained of.

4. That as to so much of the bill as seeks an account of administration proper, the Probate Court, since the act of 1853, defining the jurisdiction of the Pfobat^ Court, has exclusive jurisdiction.

5. That the original claim was in its nature joint, and the compromise with the co-administrator, B. M. Piatt, and dismissal of the case as to him, is a bar to all further proceedings against Longworth.

6. That these several demands are barred by the statute of limitations or by lapse of time.

7. That there is a fatal variance between the allegations of the bill and the proofs.

8. Entire want of equity in the case as made.

We will consider these claims in their order :

1. As to the commissions charged on the bank debt. The estate owed the bank $300,873.69, secured by mortgage. An arrangement was made by the administrators by which the heirs conveyed to the bank the equity of redemption in the mortgaged premises in discharge of this debt, and others to the bank on which the deceased was liable as an indorser.

By the statute in force at the time (2 Chase, 1309, see. 8), the administrator is required to render a written account, in which he shall charge himself with the amount of the estate, according to the inventory of sale, including all debts due the estate and moneys on hand at death, and credit himself with all moneys lawfully expended in settling said estate by payment or otherwise, and exhibit vouchers and receipts. The court shall also allow as credits all debts to the estate, with which he is charged, that could not be collected, and shall allow the administrator a credit for any 'sum not exceeding six per cent, on the amount by him settled, and such, other sum'for extra trouble and expense as is deemed reasonable.

The administrators charged thernselves with the amount due the bank, treating the transaction as though the bank had paid that amount for the equity of redemption, and credited themselves with the same amount as if the debt had been paid in money.

By this method, which perhaps was well enough as a record of the transaction, the receipts were $303,693.25, instead of $3,119.56 actually received; and the payments were $302,286.23, instead of $1,412.54 actually disbursed. The charge for services in settling this large debt is in these words : “ Administrator’s charge on' disbursements, six per cent., $18,137.17.”

It is admitted that this settlement with the bank was very advantageous to the estate.

It is also clear that for this valuable service the administrators were entitled to liberal compensation for extra trouble in settling this business; but as commissions on disbursements, we do not think this charge warranted by law. To so regard it, requires a strained construction of the statute.

This percentage, provided by the statute, was intended to compensate for the trouble and responsibility of collecting and paying out moneys.

The estate was regarded as insolvent, and while it is doubtless true that this adjustment largely contributed toward realizing something for the heirs, yet the amount of this charge, even in this day of extravagant fees, seems far more than adequate for the service; but they were entitled to a fair and liberal allowance for this service, though not as commissions for disbursements.

The claim was made to the proper court, and was laid-over under the statute until the next term, to give all persons interested an opportunity to except. Exceptions were filed in 'behalf of creditors, and the court made the allowance. The records showing this allowance were open to inspection, and no complaint was made by any of the heirs for twenty-five years.

Under these circumstances we do not feel warranted now in disturbing that allowance, especially in view of the final settlement of June 19, 1846, of all matters of account.

The second ground for relief sought is to have an account of administration from the date of the last one in 1828.

It appears none was filed after that date, nor was any demanded, either by creditors or heirs, until June, 1846, a period of eighteen years.

During this time lands were sold, assets collected, debts paid or compounded, etc. At the end of- this time, the claims of creditors were all .extinguished either by payment, composition, or lapse of time.

The only parties, therefore, who had an interest in calling these administrators to a settlement were these complainants.. They had the power to cite them to such set-* tlement in court. They, through the late Judge Reed, initiated steps for a final adjustment and surrender to the heirs of the remaining assets, among which was a large claim against the United States.

The result was this agreement of June 19, 1846. By its terms a final settlement was made with the administrators, and each of them. It was therein declared to be “ a full and complete settlement of all matters that have been administered by and through the said Benjamin M. Piatt and Nicholas Longworth, as administrators as aforesaid.”

Complainants seek to impeach this settlement because of alleged fraud and concealment, and for the reason that two of the heirs were minors, by reason of which the rights of all are saved.

• As to fraud and concealment, the onus is upon the complainants. The parties met pursuant to previous arrangements. Larz Anderson, the son-in-law of Longworth, who before that was unacquainted with the accounts, prepared himself by an examination of the records of the court and the papers, and on the day of meeting exhibited a statement debiting the administrators with' the cash balance, some $14,000, in 1828, and subsequent receipts from sale of lands and other sources, less commissions and expenses, making total debits $46,242.15. On the credit side there are one hundred and fifty-one items, being sundry .debts, expenses, etc., $124,425.69, leaving a “ balance due from the estate of $78,183.53.”

It was explained, however, that the estate did not in fact owe them this balance; that these items of credits were made up by the face of the debts paid, and were not the amounts actually paid, because large discounts were obtained on most of them. Something was said about Mr. Longworth’s not having made an account of receipts and disbursements; but B. M. Piatt stated his belief, from his knowledge of the business, that Mr. Longworth had paid out quite as much as he had received; or, if not, that the difference was not worth contesting.

With this statement the other party appealed satisfied, and no such account was insisted on.

This was the evidence of Mr. Anderson. It stands uncontroverted. Why was it that the heirs preferred this method of settling to that provided by law ?

We are left wholly to conjecture for the reason. We know, however, that they voluntarily adopted it, and did not insist on having an itemized statement of disbursements; but acquie'sced in the statement of Judge Piatt, that the difference was not worth contesting. There is no evidence that this statement was not substantially true. They accepted it as true and executed this release. Unless it be shown that it was false, this settlement must stand.

The heirs might have properly demanded an itemized account of disbursements, supported by vouchers; and, upon refusal, could have-had a citation issued compelling an account. Eor reasons satisfactory to themselves they waived this right, and acted on the assurance of Judge Piatt, that Longworth had paid out about as much as he had received. It does not appear that this assurance was not true.

Whether it was true or not, it is now impossible perhaps to ascertain, and. we do not think these complainants can now demand what they then did not choose to insist on.

It is said these minors were not bound by this settlement. Admit it, and what follows ? On coming of age they could disaffirm or disregard it, and call for an account. This agreement was no cloud upon their right to such an account. As to them no final settlement had been made. They had a plain, adequate, and complete remedy at law.

In case of the heirs who were of age, there was perhaps a necessity to invoke the aid of a court of equity to have this agreement canceled, to remove the cloud upon their right to an account. As to these minors, against whom it was void at common law, no such cloud existed.-

Until they have exhausted their legal remedy we are unable to see what standing they have in a court of equity.

As to them, therefore, their rights were unaffected by this agreement; and unless barred by the statute of limitations or other defense, they are as free now to demand an account in the Probate Court as if it had never beeu made.

Since the probate act of 1853, that court has exclusive jurisdiction of the settlement of accounts of executors and administrators. When that remedy proves inadequate the aid of a court of equity may be invoked.

III. The remaining question relates to the sales of lands to and for the brother and sisters of Mr. Longworth. Was the relation that he bore to these transactions such that, in equity, he was guilty of a breach of trust ? What were the facts ? The first sale of land was to take place July, 1825. On the 15th of May previous, Mr. Longworth, in view of the first sale, writes to his sister Catharine, who resided in Newark, New Jersey :

“ Dear Catharine : — The sale of the real estate of the late John H. Piatt takes place in six or seven weeks ; most of the property is valued low, and will be sold (should no person bid more) from one-half to two-thirds the amount of valuation. As administrator, I am proscribed from purchasing, but shall have considerable fees as administrator, that 1 could apply in any purchase you might make, and the purchase-money could be repaid me from the sales. I have no doubt a considerable profit could be made; I therefore wish you to write Jones, and direct him to attend at the sales and purchase such as may be deemed advisable. I will with him particularly examine the several pieces, and decide which will be the most advantageous purchases. Do not omit writing soon.”

In July, 1825, after the sale had taken place, at which some of the lands were returned as sold to her, he again writes her : “ The property bid in at the sale, as far as any profit is made, is intended for your benefit; what I could not do directly, I would not, do indirectly. I, however, made the greatest exertion to make the property bring a high price, and it will lessen your profits. The amount purchased for you was about $5,000, and you may be assured it will net you a handsome profit.” In this letter he encloses some money, and says: “ I shall furnish you such sums as you may want •” and assures her he will furnish means for her aiid his brothers John and Jabez, as they may need.

It is worthy of remark, in this connection, that the proof abundantly shows that, both before and after this sale, Mr. Longworth was kind and liberal to his less prosperous relatives in New Jersey, and, as his sisters testify, was constantly urging them to accept more of his bounty. This liberality was independent of any profits to be made out of these lands.

In view of a second sale of lands' in 1827, he again writes to his sister :

Cincinnati, January 22,1827.
“ Dear. Catharine : — I learn from Jones that Jabez has had a bad time, and wait anxiously for a letter from you. We are all in good health. I inclose a check for Jabez, in your name, for $200. I will remit him one for the same amount every ninety days, till I can do better ; that amount will, I presume, meet his wishes; if not, it shall be increased at any sacrifice. There will be a second sale of the real estate of John H. Piatt, deceased, in a few days, when I intend, should the property go low, to have some hid in for John’s use. I have no doubt $2,000 or $3,000 may be made by it.”

Under date of November 26,1833, referring to these investments, he writes to her and says : “ I have made some investments for your’s, sister’s, and John’s benefit in -real estate, which turns out well, and Phope to be with you in a few months, and finally settle our concerns.”

Again, under date of December 26, 1833, he adds: “ I think both your building and your contemplated expenses are on too small a scale, for I know of no motive you can have for hoarding up. I made, some years since, some purchases for your’s and brother John’s benefit, and some for sister — one, you will recollect, from Ludlow’s estate.”

He then ..states that Piatt had purchased a lot of Kidd at too high a price ; that Kidd owed the purchase-money on this lot to Ludlow’s estate; that Piatt’s estate owed Kidd more than the lot was worth ; that, seeing that Ludlow’s executor’s claim was paramount on this lot, so that Piatt’s estate would lose the lot and owe Kidd for it besides, he formed the plan to buy in the Ludlow claim against Kidd; he proposed that the Piatt heii’s should do this, but they declined, and he says : “As administrator of Piatt, I considered myself as legally disqualified from buying, and what I could not do directly, it would have been dishonest to do indirectly. I therefore took the interest in your name.” And after telling her how the matter ended successfully, says: “¥e have recovered the property, and I shall take possession in a few months, and I think the rents, since our purchase, will pay Kidd for improvements.”

He concludes this significant letter as follows :

“ Half the rents, after paying taxes and repairs, will not, even at this time when things are depressed, I think, be less than $600 per year. 1 wash my hands of it. If I pretend to common honesty, I can make no claim of it, or consider any part of it mine; had I been indirectly the purchaser, it is possible the court would have decreed me the purchases for Piatt’s estate, as I was his administrator, and the result would have been that after deducting the amount for Ludlow’s heirs, the estate of Piatt would have been compelled to hold the property to pay the balance after Kidd’s heirs had sold it in part payment, and the whole would have centered in Ludlow’s heirs toward paying their jiidgment of $30,000. My only' claim on the property thereof is the amount of money I paid, with interest since. This will be something over $2,000, besides what I paid Lewis, but it was not much. When Joseph is east next season, I shall bring all matters to a close, and finally settle your sister’s and John?s claim. There shall be nothing of obligation in matters of business. I shall settle them as an honest man would settle them with his enemies. The purchases I made for sister’s use were under like circumstances, when I could not and would not have purchased for myself.”

February 9, 1834, he answers a letter from his sister, who had made some allusion to the letter just quoted, and assures her it was strictly true .that he could claim no part of the property: “ I could not both buy and sell; had I bought in the name of another for my use, the heirs or creditors would claim the benefit of it. That matter will be settled as a mere matter of business.”

June 6, 1834, he again writes Catharine, expressing a wish to close up this business with her, Mrs. Morris, and John, and also obtain their interests in their brother Jabez’s estate.

Of Mrs. Morris he says: “ I made some investments here, the profits of which were intended for her.”

As life is uncertain, he wishes these matters closed up, and proposes to take a release of Mrs. Morris of her interest in her brother’s estate, “ and of her interest in the investment, and secure $7,000 to her, with interest payable yearly.” He wishes also to close up with her and John in the same way. He assures them “ that their rights and brother’s is as absolute, in the investments I made, as your interest in brother’s estate.” “ As I was a trustee in the case of the purchases, I could, not have made them myself. I shall feel easier in mind when I have these matters closed.”

From this letter it appears he had invested $8,000 of these fees for them; that he had already sold one piece at a profit of $2,000, and that the whole was worth $12,000 more than cost, interest, and expenses. For a release by them of their interests in these investments, not a purchase by him from them, he proposes to give his obligations, lumping these interests with their interests in brother Jabez’s estate, at $17,000.

November 29, 1834, in consideration of this plan, he gives his obligation to John and Catharine Longworth, to pay each of them, during their lives, $300 per annum, and at their deaths $5,000 each, to such persons as they might by will name: “ The consideration for this obligation being a deed of quitclaim to certain real estate in Ohio, to be by them executed to the said Nicholas, the obligor, being certain real estate bought and paid for by the obligor, but the profit thereon being for their benefit, and a release from them to the obligor, of all their interest in the real and personal estate of the deceased brother, Jabez Longworth, and except any claim they made on real estate of the said Jabez in the State of New Jersey; said obligations and mortgages to be executed, recorded, and delivered to them as soon as I receive their release of quitclaim aforesaid.”

On the same day he executes a similar obligation to Mrs. Morris for $7,000, “the consideration being a quitclaim deed by her to me, to be executed for certain real estate in this city, bought for her benefit; that is, any profit made thereon, after deducting purchase money which loas advanced by me,” etc.

To secure these obligations he executes mortgages on real estate, in Cincinnati, and on the 17th of December, 1834, Catharine Longworth, John Longworth, and Elizabeth Morris conveyed back, by deed of quitclaim, “ all their rights, legal or equitable,” in the lands the administrators had shortly before conveyed to them.

The consideration named in this deed to Longworth was $17,000 — i. e., $5,000 each, to John and Catharine, and $7,000.to Mrs. Morris.

The deed was prepared at Mr. Longworth’s instance and forwarded for them to execute. After describing the land is the following recital, which, as coming from Mr. Longworth, though in the deed to him, becomes important : “ The facts are these — N. Longworth, our brother, purchased real estate in our names, and advanced the purchase money ; any profit the property might bring after repaying him, being intended for our use. Some parts have been sold, and the object now is to vest all such purchases in him and his heirs, he having secured to us a certain sum, agreed to be given us for the profits.”

It thus appears he had invested over $5,000 for Catharine, and $8,000 altogether; hut in 'closing up he ignores these facts altogether. He says the entire profits would be $12,000. Catharine’s share of these profits should have been in the same proportion if she was a bona fide owner. Instead of this, she gets less than Mrs. Morris, who had a family to support; thus showing that he was not paying debts, but making provisions for these relatives.

From the first letter, of May 15, 1825, to the final close of these real estate transactions, in 1835, Nicholas Long-worth “looked after and was the manager of this business.” He advanced the money, or rather no money was advanced, but his share of this large fee complained' of was not withdrawn from the estate, but allowed to offset these purchases. He attended to making these purchases i n their names or for them.

Mrs. Morris says : “ "We looked on our brother Nicholas as our agent in every respect, to do for us as he thought best. We had no other agent there. He always attended to everything for us to the best advantage. I know that the property was purchased for me and my brother John by my brother Nicholas. I never saw the deeds; I always trusted my property in Cincinnati to the management of my brother. . . I left all to him.”

Catharine Longworth says : “ She never paid any money, that she knew as little as she eared about any of this property.” By way of explanation of this, she adds :

“ My brother, Nicholas Longworth, long before he was rich and when he had a family of his own, was accustomed to remit to my brother John and Mrs. Morris, means for our support, and in the latter years of our aged father, he amply provided for his wants. These are reasons why I did not keep with him so strict an account as I should with others; indeed, I kept no account at all, excepting as he pressed information upon me which I never called for. I never had in my possession any of the certificates of purchase made in my name, nor did I ever see them that I recollect of.”

It is important to consider the dates of the several conveyances from the administrators and those to Mr. Long-worth, and the times these were placed upon record, keeping in mind the fact that neither Catharine, John, nor Mrs. Morris ever had or saw any of these papers, except the deed they executed to Mr. Longworth. All certificates of purchase and evidences of title were kept in his possession and under his control. The legal conclusions to be drawn from the dates of these conveyances and reconveyances, in connection with proof, is that these other parties were mediums through whom the title was in transit.

The deed, by the administrators to Catharine Longworth, was dated March 1, 1834, and recorded in Book 52, p. 195. Reconveyance, December 17, 1834, recorded in Book 52, p. 128, the last deed being recorded first.

Deed by administrators to Catharine and Lewis Howell, May 29, 1827; recorded in Book 26, p. 622; reconveyed, November 17, 1830.

Deed by administrators to Lewis Howell and Catharine Longworth, May 10, 1828, Book 29, p. 276. Same day, Lewis Howell conveyed an undivided half to J. W. Piatt and Catharine Longworth, recorded Book 29, p. 279 — one-third to Catharine and two-thirds to Piatt.

August 30,1828, Piatt conveyed this two-thirds to Long-worth, which is recorded in same volume.

March 1, 1834, deed by administrators to Samuel Lewis, of property sold in 1827. February 25, 1835, Lewis to Elizabeth Morris and John Longworth, consideration $1, both recorded in Book 53, pp. 536 and 538; while reconveyance to Longworth was dated December 17, 1834, but recorded in Book 52, p. 128, before the others. No delivery of these deeds by the administrators was ever made to them.

Mr. Lewis was the law-partner of Longworth, and Howell was a brother-in-law. Neither paid any money on these purchases, and only ácted as mediums through whom the title passed.

Mr. Longworth says he made the purchases, and advanced the money, “ any profit the property might bring, after repaying him, being intended for our (their) use!” “ I made the investments.” “ The property bid in at the sales, as far as the profit is made, is intended for your benefit.” “I made some purchases for your’s, sister’s, and John’s benefit.”

“ I made some investments here, the profits of which were intended for her (Mrs. Morris’) use.”

To explain to them why he was doing this, he says: “ Had I bought in the name of another for my use, the heirs and creditors would claim the benefit.”

He is careful to limit their interest to the profits. All the circumstances conclusively show that he alone held and managed these investments, with a view to profits, controlling the titles in the meantime, to secure a return of the advances with interest, and donating the profits to them.

The recital in the obligation to Catharine and John is an epitome of the transaction, being certain real estate bought and paid for by the obligor, but the profits thereon for their benefit. This is not the language of a vendor to a purchaser of the land.

He is everywhere careful to discriminate and to describe the transactions as purchases by himself, investments he-has made, the profits to be realized to be theirs.

"Without waiting to realize profits, he obtained a release for a gross sum named by himself. That sum is not ascertained by a settlement “ as with an enemy.” They accept without question what he offers. It is evident he intended these sums as a provision for his less prosperous relatives, and not as a payment of a debt he owed. Catharine says : Independent of the sums secured to us . . . my brother has pressed on us to receive larger sums. He has wished us to receive as much as $1,200 a piece per year. In consequence of his so pressing us, I have consented to take $600 a year, and if more money would give me more pleasure, I would receive more.” These relatives were never the debtors of the estate, for the fees of the administrator were applied to pay for the lands. Neither did they owe their brother.' He looked not to them, but to the lands for his advances.

If we leave out of view his representative character, and look at this transaction as between Longworth, individually, and his sisters and brother, his and their interest in these purchases becomes apparent. He saw money could be made, but was debarred from making it for himself. He buys in their names or of others, using his money to make the payment, or rather charging himself as administrator with the amount, and promises them the profits. When •sales should be made, he was to be paid his advances with ■interest and costs. The profits which he was sagacious ■enough to see would accrue, as he can not keep them for himself, he voluntai-ily offers to give to his relatives. As between him and them, he was the owner of the land. Holding the evidences of title in his own hands, he could ;protect this investment of his, for, on his own theory, he was investing money at interest in these lands, the legal title to which was in Piatt’s heirs.

These profits were promised without any valuable eon■sideration. It was purely voluntary, and might have been ¡revoked at pleasure. Being without consideration, they •could not have enforced it.

In what respect does this differ from any other investment that may he made with view to profit ? Only in this : He uses other names than his own, and agrees in advance as to the disposition of the profits to he made. His money, his sagacity and skill, his time and trouble, are devoted te this enterprise. As somebody would make money out of these sales, why not he make it for his dependent relatives ? He believed, so long as he did no actual wrong to the estate, he might do this, if he contented himself with a return of his purchase-money and interest (ordinarily an adequate profit on an investment), and gave away thé surplus profits. In this we think he was mistaken. In the eye of the law it makes little difference whether these profits are devoted to profane or pious uses, whether he enjoys them himself or gives them away, pro salute animce. Such a disposition may give satisfaction to the donor, but can never change his relationship to the trust estate, which demands that if any money is to be made out of it by the trustee, the profits shall go to the cestui que trusts.

He is engaged in serving two masters, when good faith demands that he shall serve but one. His position was one demanding the utmost good faith — the uberrima fides of the Roman law. It is a salutary and sound principle that agents to sell can not be purchasers; that the character of seller and buyer are so entirely incompatible, that they never can be united in the same person ; and generally, that trustees of every description, who have power to sell, can not, by direct or indirect means, become the purchasers of trust property. In such cases the court will not suffer itself to be drawn aside from the application of this equitable rule by any attempt on the part of the purchasers to establish the fairness of the purchase, because of the danger of imposition and the presumption of fraud, inaccessible to the eye of the court.

The policy of the rule is to shut the door against temptation in cases where this relationship exists; it is of itself deemed sufficient to create the disqualification. The sale will be set aside, not because there is fraud, but because there may be fraud. “ However innocent the purchaser in the case, it is poisonous in its consequences.”

' There may be fraud, and the party not able to prove it. It is to guard against the uncertainty and hazard of abuse, and to remove the trustee from temptation, that the rule permits the cestui que trust to come at his option and without showing actual injury, and insist on, the experiment of having another sale. This is a remedy which goes deep and touches the root of the evil. Devone v. Fanning, 2 John’s Ch. 252; Barrington v. Alexander, 6 Ohio St. 189; Riddle v. Roll, 24 Ohio St. 572; Michoud v. Girod, 4 How. 503.

These principles are too well settled to be disturbed. They rest upon a foundation that can not be shaken.

They are adopted in the courts in every civilized land, and deserve to be maintained with unswerving fidelity.

That Mr. Longworth occupied, in the case of these purchases, relations inconsistent with his duty to the estate, is beyond controversy; and while there is no evidence of actual injury to the estate, or of actual fraud committed by •him, yet it is abundantly shown that he was interested in these purchases, and active in his efforts to make money out of them.

The fact, if true, that he bestowed the profits on others, certainly can make no difference. That he disposed of them as he had liberally bestowed other moneys on his worthy relatives, showed his kindness of heart. "While this may extenuate his mistake, it can not excuse it,

Rut the respondent insists that even if this be so, this claim is barred:

1. By the settlement of June 19, 1846.

2. By the compromise with the co-administrator.

3. By lapse of time and the statute of limitations.

4. Because there is a fatal variance between the allegations and the proofs.

First. It is claimed that the complainants are estopped by the settlement of June 19, 1846.

In terms, this was a final settlement of their accounts as administrators.

The language iá not broad enough to cover this claim' -for a breach of trust, outside of the line of their duty.

The proof shows that this settlement covered certain and definite things.

The matters now in controversy were not considered or even thought of.

More than all that, the facts out of which the present action arose were concealed from the heirs and wholly unknown to them.

In no possible view, therefore, can we hold that this settlement constitutes a bar to the relief prayed for.

Secondly. It is insisted that the dismissal of the ease, as to B. M. and J. "W. Piatt, is a bar, notwithstanding the reservations made in such dismissal.

This is upon the ground that the action is, in its nature, joint, and a settlement with one bars a recovery as to the other joint obligor.

If this is to be regarded as in the nature of a breach of a joint contract creating a joint indebtedness, then such settlement is no bar.

The act “for the relief of partners and joint debtors” (1 S. & C. 905), which took effect before this settlement with the Piatts, would govern. In 'that case, the right to proceed against the other joint debtor is preserved.

But this is not a case of joint obligation. The claim is joint and several. At law it would have been in the nature of an action on the case.

The administrators, in pursuance of a common plan, acted separately as to distinct sales. Each is liable for his breach of trust, and, in proper cases, they are liable for each other.

In such a case as this, where several are charged with complicity, the complainants are entitled to judgment against as many as are shown to be liable. That the proof fails as to some, furnishes no grounds for denying relief against such as are proved guilty of the wrong.

As to the statute of limitations and lapse of time:

This action was commenced before the code; hence the laws governing like cases in chancery are applicable to this.

Chancery, by analogy, adopted the limitations prescribed by statute for actions at law in proper cases.

By this rule twenty-one years of adverse title and possession would bar such a claim.

The first conveyance from the administrators was in May, 1827, the last, and principal one, December, 1834; so that, as to most of the property, this suit was begun nearly six years before the claim would have been barred.

But these administrators were trustees of an express trust; and, as such, purchases made, either directly or indirectly to themselves, “ the estate will be held in trust for the heirs at law or other persons interested.” Riddle v. Roll, 24 Ohio St. 572.

The holding, in such eases, will not be deemed adverse while the fiduciary relation continues, unless distinctly avowed.

The holding of the trustee inures to the benefit of the cestui que trust at his election.

Until notice of all the facts, time does not begin to run. The burden of proving notice rests upon the party alleging it. Bunnel v. Stoddart, 2 Am. Law Rec. 219.

The recital in the deed to Longworth, in December, 1834, contains, as has been showh, an epitome of the facts on which this claim is founded. This deed was recorded -, 1835, and it is claimed that that recital was notice of his adverse claim.

On its face this was a declaration by the grantor. The fact that it emanated from Longworth did not appear. Hence it was not in the nature of an adverse claim by him. Again, this recital, so far as the proof shows, was unknown to the heirs. Actual notice must be proved, not constructive. Still more, this notice, if sufficient to constitute an adverse holding, would give them twenty-one years to sue after being put on record. The true ground, however, is that the facts on which this claim is founded were not known to the heirs. These facts are found in Mr. Longworth’s letters to his sister, in his obligations made to them when he obtained the releases from them to him, aud in the recital in the quitclaim deed to Longworth.

The bill avers that these facts were unknown to them until some eight months before the suit. Prior to these discoveries these facts were, so far as appears, known only to Mr. Longworth and those acting in concert with him.

Until known to them, they had a right to rely on the good faith and fidelity of these trustees, and time would not run against them.

In general, length of time is no bar to a trust clearly established to have once existed; and when fraud is imputed and proved, length of time ought not to exclude relief unless the equity has become stale. Michoud v. Girod, 4 How. 503; Boone v. Chiles, 10 Pet. 177.

A person ignorant of his right can not be presumed to have abandoned it. Perry on Trusts, sec. 867.

What length of time will constitute a stale equity must depend on the merits of each case.

Relief in chancery is often granted after long lapses of time, in cases of fraud — in some cases after thirty years from the discovery of the fraud. 4 How. S. C. 560.

It is claimed there is a fatal variance between the allegations of the bill and the proofs.

The bill' charges conspiracy between the administrators and others named, who became purchasers, whereby these purchases were to be made for their benefit; and that, in pursuance of this conspiracy, several purchases were made' for the use of B. M. Piatt, and some for the benefit of Lo.ngworth.

It is not alleged that they were jointly interested in these several sales, but severally in different sales in pursuance of a common plan.

In those sales to J. W. Piatt, it is said he was the tool of his father, and in those to Catharine Longworth and others, they were the instruments of Longworth. It is now claimed that the evidence shows that Longworth was the agent of his sisters and brother in these transactions, and not the principal with them as instruments. In this the variance is said to consist.

The test of a variance which would defeat a recovery, as put by Lord Redesdale in 2 Sch. & Lef. 10, in Deniston v. Little, was, whether the case proved was a new case.

In determining this question of departure, it is the legal and not the natural identity which is to be regarded, consisting of those particulars which are essential to the action. In these cases it becomes necessary to ascertain the essential elements of the legal proposition in the controversy. 1 Greenl. Ev., sec. 63.

The substance only of the issue must be proved as alleged, and all immaterial averments may be disregarded. Phillips on Ev., vol. 1, chap. XII.

It can not be claimed that the facts proved in this case do not tend to support the general averments, that in these purchases Longworth was acting in derogation of his duty.

The bill charges in substance that he was interested, and that the other parties were his instruments to accomplish his unlawful purposes.

Giving the evidence the most favorable construction for Longworth, it shows that he was the sole actor in these sales ; that he was interested to the extent of the purchase-money and interest in the lands purchased; and that as to the profits to be made only, was he acting for his relatives. The facts proved in legal identity correspond with the allegations.

The agency of Longworth, so far as any existed, was, as between him and his relatives, only to make profits for them.

In the interpretation of these facts, the solicitor who drew the bill charged, as a conclusion from them, that in law he was principal, and they his instruments. If the court should now hold that the proof showed he was the agent, it would not change the essential facts, only the conclusions from the facts. The substantial identity of the case is the same in allegation and in proof, the legal conelusions from the facts, as drawn by the .pleader and by the. counsel being the only variance.

But we think the proper construction of the written ad* missions of Mr. Longworth, viewed in the clear light of all their surroundings, is that he was the one most deeply interested in these purchases ; that his money was invested, and to the extent of that and the interest on it, he was in equity an owner; that he was at the same time the voluntary agent of his sisters and brothers, so far only as the profits were concerned; and that, during all this time, he was holding the title as trustee of the creditors and heirs, and that he was, in fact, using the names of these purchasers as his instruments, to accomplish his ultimate purpose — namely, gain to himself and contingently profits, which he intended for the comfort of these instruments.

Indeed, as before stated, we are fully warranted in holding that in legal contemplation, and however honest his intentions, he is to be regarded as the purchaser.

The liability of Longworth does not depend upon the acts of Piatt in this case, but on his own. Each, in a proper case, would be liable for the misconduct of the other in an action on their bond. But here- the charge is that Piatt and his associates made certain purchases for his interest, and that Longworth and his associates made certain other purchases for his interest.

The liability in either case is wholly independent of that as to the other.

Upon the whole case, therefore, we have been forced to the clear conviction that as to these sales in controversy, the heirs have an undoubted right to relief in equity.

Decree for complainants.

Scott, Chief Judge, and Day, J., concurred.

Wright, J.,

dissenting. Being unable to agree with the majority of the court in the conclusions announced, it is proper to state the reasons for dissent. There does not appear to be any difference with regard to the. principles of law involved; it is as to a question of fact simply that we arrive at contrary results. No doubt is entertained as to the soundness of-those wise legal maxims which declare that the trustee can not manage his trust tor his own benefit; that an administrator can not purchase at ,his own sale; that no man can serve two masters. But while it is altogether proper to hold these j ust principles in profound reverence, our great regard for them should not be permitted to hurry us into unwarranted belief that every trustee leans toward defrauding his beneficiaries, and that there is a predisposition in all administrators to swindle.

The main question of fact about which we disagree in this ease isDid Nicholas Longworth purchase at his own sale, so as to be now held as a trustee for the heirs? The testimony is voluminous, and to satisfy himself, each one must examine the whole of it with care.

Longworth and Benj. M. Piatt, as administrators of John H. Piatt, sold considerable quantities of property, in Cincinnati, in 1825, 1827, and 1829. Before the first of these sales, Longworth had written to his sister Catharine; and as this letter is the corner-stone upon which a large structure of fraud, actual and constructive, is erected, it is here given in full, so far as relates to this question:

“ Cincinnati, May 15,1825.
“ Dear Catharine : The sale of the real estate of the late John H. Piatt takes place in six or seven weeks. Most of -the property is valued low, and will be sold — should no person bid more — from one-half to two-thirds the amount of valuation. As administrator, I am proscribed from purchasing, but shall have considerable fees, as administrator, that I could apply in any purchase you might make, and the purchase-money could be repaid me from the sales. I have no doubt a considerable profit could be made. I therefore wish you to write Jones, and direct him to attend at the sales and purchase such as may be deemed advisable. I will, with him, particularly examine the several pieces and decide which will be the most advantageous purchases. Do not omit writing soon.” . . .

It certainly can not be claimed that an administrator is forever, and at all times, precluded from buying any property which may at any time have passed through his hands as such administrator. There must, at some time, arrive a period when his duties and responsibilities cease. If an administrator sells property — the fairness, justness, and correctness of that sale not disputed — can it be said that a series of years thereafter he may not buy the identical property, either from the original purchaser or those to to whom he may have conveyed? Certainly it must be that he would have the right .so to do. The rule of law states it, that the administrator can not purchase at his own sale; and the reason of the rule — that he can not at once be buyer and seller — shows that the interest of the administrator in the purchase must have existed at the time of the sale.

Let us consider, first, the sales to the sister of Mr. Long-worth.

His answer, as to all these sales, avers that “ at the time ” they were made he had no interest in them whatever. The allegation being thus denied, complainants were fairly warned that they must prove it. The answer beiug under oath, under the practice in chancery, is supposed to have some weight as evidence. The various depositions of the sisters to whom the property was sold, state that it was bought for them; so that if the theory of complainants be true, we must disbelieve the sworn statements of both buyer and seller. It is conceded that it is the interest of both to swear as they do — Longworth to save his property and his reputation for integrity; the sisters to shield from the charge of hypocrisy and treachery the good name of a brother to whom they seem to have been tenderly attached. But for all this the statements may be true. The secret was known only to themselves. At different times and in distant states, without communication with one another, each tells his and her story. These stories agree. This of itself is not evidence to me that both lie.

In order that this secret trust should be established, and that the purchase at the sale should have been for Long-worth’s own benefit, it is to be remembered that both sides must have conspired to that end. It is not sufficient that Longworth himself should have had that intent and purpose ; but unless Catharine Longworth, the purchaser, was of the same mind at the same time, certainly the result does not follow. It could not have been a purchase for Longworth’s benefit, unless both he and his sister so understood it. As in any other contract, the minds must have met on the same point. Parties could not very well agree to anything unless they knew what it was.

It should be borne in mind that all the sales in which Catharine Longworth was interested were in July, 1825. It is so stated in the order of sale; it is so stated in the administrator’s deed to her, and in the deed to her and Howell; it is so stated in defendant’s brief; it is so stated in complainant’s brief, and therefore must be true.

I consider this date important. To prove the fraud alleged in this, case, which is a sale by the administrator virtually to himself, we must fasten knowledge and intent not only upon Nicholas, but upon Catharine, prior to the transaction itself. The bulk of the letters and documents which are thought to establish the fraud so clearly, are all subsequent to the sales of July 25, in which alone Catharine was interested. There is but one paper prior to that date ; it is the letter of May 15, already given. "Whatever else there may be to prove that Nicholas had corrupt designs, this letter is all the evidence there is to show that prior to the sales of July 25, Catharine Longworth confederated with her brother to buy the property, nominally for herself, really for him. ■ It matters not what they or either of them may have done, thought, or intended after that date. If the sale was bona fide to Catharine on July 25, no subsequent events can make it fraudulent. The impeachment of that good faith must be determined by the deed, thought, and intent, as it was before and at the time of these sales.

We must not here be confounded with the idea that intent alone does not determine the question of fraud. There is no doubt whatever that a man may be guilty of fraud, although he may have been entirely innocent and honest in his own heart, and quite free from moral blame. A trustee may not know that in law he is precluded from buying at his own sale. He may see the property of his ward, at a forced sale, going at ruinously low rates, and, out of the purest and best motives, may offer largely more than any one else will give; not because he wants the property, but for- the reason that he honestly thinks the estate is being ruinously sacrificed. Yet that sale can not stand if complained against; and integrity of purpose does not shield the trustee from the charge of improper action.

But in this case it is the intent and the intent alone that settles the nature of this transaction. If the only party to it were Nicholas Longworth himself, it would be to no purpose that we sought his motive. But there are two parties — Nicholas Longworth and his sister Catharine. It is alleged in the bill, and to sustain the case it must be proved, that these two agreed that at the sale Catharine should buy for her brother. This is claiming a corrupt contract between these two parties. No contract, corrupt or otherwise, can be established, unless the minds met and agreed upon the same proposition. If Nicholas Long-worth did intend what is claimed, unless Catharine was of the same intent, the contract or agreement, which is the sole foundation for this action, did not exist, and could not have existed.

Consider, then, this letter, solely to determine whether from it alone it can be inferred that Catharine agreed or understood that she was becoming a party to this corrupt transaction. Her brother informs her that the sale is about to take place ; that he, as administrator, can not purchase; that out of his fees he could lend her the money to buy, and she could repay him out of her sales ; that she can make a profit; that if she will write to an agent, her brother will advise him as to which lots she should purchase. Can it be inferred from this evidence that Catharine Longworth, at that date, agreed to become party to such a design as is now imputed, or the tool to accomplish its execution ? No answer of hers to this communication anywhere appears, and from her silence assent is inferred, not to what it contains, but to exactly what it does not contain.

Suppose such a letter had been written by an adminis-trator to any one else than his sister. It has never been claimed as a default in such an officer, that he advertised his sales as widely as possible; that he urged upon persons to become buyers. Indeed, the advising with them what lots to buy, is only affording them that infox-mation for which they would naturally inquire of an administrator. Evexi an offer to advance the money to make the necessary payments may be construed as evidence of a desix-e to facilitate sales. ■ I can therefore see xxothing in this letter alone which is not just as consistent with a desire to discharge his duty and forward the business in his charge, as with a pre-determined purpose to commit a fraud. If the letter had been all fair and propei-, written to a stranger, does the fact that it is written to a near relative convert it from truth into falsehood ? Upon the theory of plaintiffs, to make Miss Longworth ¶articeps criminis, she must have understood it in exactly an opposite sense from what the words import. She xnust have deliberately lent herself to a scheme of deception. She must have recognized the hypocrisy of her brother, and have been satisfied to profit by his infamy, which was the more mean, because practiced toward those who were compelled to rely upon his honor. All the severe things, therefore, which are said in profusion of Nicholas Longworth, would apply to this lady of whom the counsel say : “ She appears to have been a pious, excellent lady . . . undisturbed by any scheme of avarice or human ambition . . . with no desire but to live a quiet, retired life.” The evidence fully sustains this charge made against her by the learned counsel for the plaintiff.

I can not but believe that whatever may have been the furtive design of the writer, Miss Longworth thought, and was justified in thinking, that this letter meant precisely ■what it said, instead of precisely the contrary. If this be true, she could not have been a party to the scheme alleged. Unless she did understand and agree to the scheme at the time, the sale could not have been nominally to her, really to her brother, for her assent was wanting to any such arrangement.

At the sale in 1827, certain property was bid in by Samuel Lewis for John Longworth and Mrs. Morris, brother and sister of Nicholas Longworth. There is no evidence in the shape of letters to or from John or Mrs. Morris, of date prior to this sale; none whatever. Indeed, there are none at all. As in the case of Miss Catharine, to fasten upon them this fraud, it should be shown that at or prior, to the sale, they were informed of, and entered into this corrupt bargaining. The only evidence of the kind is in a letter from Nicholas to Catharine Longworth, of date January 22, 1827, in which this sentence occurs : “ There will be a second sale of the real estate of John H. Piatt, deceased, in a few days, when I intend, should the property go low, to have some bid in for John’s use. I have no doubt $2,000 or $3,000 may be made by it.” If it be conceded that an administrator may urge others to buy, even by telling them that a profit can be made, the fact that the same course is pursued toward a relative does not of itself render the transaction vicious. The same considerations which lead to the conclusion that at or before the date of her purchase, Catharine Longworth was not aware of, and was not a party to any contract, that she should bid in for her brother’s benefit, apply with equal force to the purchases made for the benefit of John Longworth and Mrs. Morris.

Samuel Lewis is the man through whom John Long-worth, his sister, and Mrs. Morris perpetrated this great fraud. His deposition is taken. He is asked whether he was an actual or nominal purchaser. He gives the not unreasonable answer that, after the lapse of a quarter of a century, he can not remember one-half the purchases he made at that time. "When pressed more particularly to relate what the circumstances were, he still says he can not recall them, unless some very special circumstances fixed them in his mind. It does not seem sufficient proof of a fact, that the witness should say he knows nothing whatever about it.

The bill charges that Samuel Lewis conspired with Longwoi’th to defraud the heirs. As a circumstance it is said they were law partners at the time. If they were partners; if he did conspire Samuel Lewis must have known it. He is examined to prove it. If a conspiracy is charged, and one of the conspirators is put under fire of legal examination, the chances are that the truth will come out. "When his deposition was taken, Mr. Lewis appears to have had ixo possible interest which should induce him to prevaricate. So far from establishing any of the charges made, he does not make the slightest approximation to it.

It does appear to me that we should be more than cautious in impeaching the good faith of transactions which occurred more than fifty years ago; transactions that were not impeached at the time by those most interested in them, nor until long afterward. One of the plaintiffs, A. S. Piatt, and Isaac Dunn, father of the others, were present at the sale. Piatt bought a few pieces of property. Dunn bought some twenty; but for what purpose or for whom, he never seems to have known — at least he is unable, in his deposition, to tell. Their relative, Benj. M. Piatt, ux’ged them to buy, offering them the benefit of his administrator’s fees. The plaintiffs then, or those who then represented them, were familiar with all that occurred at the sales, and made objection to nothing.

The administrator’s appear to have been zealous in the discharge of their duties. They rescued the estate from a claim of the Bank of the United States, which amounted to over $300,000. The court allowed them, for this service, the sum of $18,000. These heiis did not object then, though creditors did. The heirs in 1846 assented to it, with a full knowledge of what they were doing; but, with confused notions of right and wrong, they for the first time attack it in 1859. The administrators seem to have made efforts to make the property sell well when it did sell. The witnesses who testify, say that the sale was open, public, and fair; that the property brought high prices. One defendant, who is charged with complicity in the general scheme of peculation, avers that he attended the sales and bid, and the lots went to such figures that he thought the administrators had employed by-bidders and puffers, whereupon he quit bidding. He is dropped out of the case. According to the best figures I am able to make, the property sold bought more than the entire appraised value, though the law provided that unimproved, it might be sold for one-half; improved, for two-thirds of its appraised value. The result was, that out of an insolvent estate these heirs have realized values said in argument, though not in the Record, to be of large amount. This general beneficial result does not justify the administrator in any side swindle, if such there were; but it does serve to show, upon an extended view of the whole field of operations, that they acted for the benefit of the heirs. It further shows, to my mind, that if Nicholas Longworth were the dishonest, unscrupulous person we must believe him to have been, in order to sustain the plaintiffs’ claim, he would not have contented himself with any small, fragmentary portion of the estate, but would have taken the whole.

Comment has been made upon the letter to Catharine Longworth, before the sales to her, as being the only legitimate evidence to show what the nature of those sales really was at the time they took place. There are many subsequent letters and documents from Nicholas Long-worth. Erom these it appears that he did urge them to buy; that he offered to lend them the money; and that they could repay him out of the profits they might make when they resold. In this correspondence he states and reiterates that he can not buy for himself, because he is an administrator, either directly or indirectly. These statements are harped upon and tortured to mean, that because he is precluded from buying she is to buy for him. Had Longworth not thus defined his position, how natural for them to say : “If this is so good a purchase, and you have the money at hand, being upon the ground, why do you not buy yourself?” In a correspondence like this, a correspondence between brother and sister,'where, if ever, the truth is told and the inmost thoughts spoken, to pervert the meaning of language in order to twist it into falsehood, where a perfectly natural and true explanation lies directly in our path, as it appears to me, can only lead us away from just conclusions.

In various places throughout these papers appears the expression that the “ profits ” are to be for the purchasers, and the inference is thence drawn that Longworth was the buyer, and the others were to have only what the speculation realized. It seems to me that this is hut a play upon words. Take the sentence in the letter of July, 1825, “ the property bid in at the sale, as far as any profit is made, is intended for your benefit.” That states the case exactly as it was. Longworth had advanced the money. The “ profit ” was what remained of the property after he was repaid. But if he was the real buyer, so that it was all his, what “ profit ” could there be to any one else ?

So in another place he speaks of “ certain real estate in this city, bought for her benefit, that is, any profit thereon after deducting the purchase-money which was advanced by me.” If the real estate was not hers after the repayment of the purchase-money advanced, what “ profit ” could there be to her ?

Not to be wearisome with further comment on these papers, the purport of them all is epitomized in a deed from Mrs. Morris, John and Catharine Longworth to their brother Nicholas, of the property they had bought. This. deed is presumed to have been drawn by Mr. Longworth. It is dated December 17, 1834, and contains the following: “ The facts are these: N. Longworth, our brother, purchased real estate in our names, and advanced the purchase-money, any profit the property might bring after repaying him being intended for our use. Some parts have been sold, and the object now is to vest all such purchases in him and his heirs, he having secured to us a certain sum agreed to be given for the profits.”

This word “ profits ” here means simply what 'remained of the property after the purchase-money was repaid, and those to whom such “ profits ” went certainly must have been those who had bought and owned that property.

The extract above given from the deed of 1834, states the facts correctly. The extract is quite true, and sets forth, in a few words, the whole case against Mr. Long-worth. Soon after its date, this is put on the public records of Hamilton county. A strange place to put a statement, which is supposed to convict a party to it of fraud and secret trust. My belief, therefore, is that at these sales this property was really bought for the benefit of Longworth’s brothers and sisters, just as they all aver the fact to be ; that not till after the sales, perhaps several years, did Mr. Longworth first conceive the idea of buying the property himself. This, at that time, he had a perfect right to do.

' There is nothing in this whole mass of evidence which is not just as consistent with the idea that Longworth first thought of buying several years after the sales, as that such purpose existed at the time of the sales.

He suggested to his brothers and sisters to buy, and, though he did not exactly furnish the money, yet, which is the same thing, as an inducement to them, he allowed the amount of their purchases to stand off against his administrator’s fees, so that they need pay no cash. All this he had a perfect right to do, provided he had no secret interest. Some years after he buys the property himself of his brothers and sisters. It will bear repetition to say that from this entire record, it is just as fair to infer that his idea of purchase did not exist until the subsequent period.

Now, when the facts consist with a theory that makes transactions legal and honest, equally well with one which is fraudulent and full of all uncleanness and hypocrisy, which will the law prefer ?

It has been said that the facts were equally in favor of the innocence of these parties and their acts. This is .so, leaving out altogether the statements of the parties themselves who are implicated. Erom these statements we find that Mr. Longworth denies .under oath that he had any interest at the time of the administrator’s sales. The sisters who have testified' make a similar denial; and yet to maintain this charge of trusteeship, upon a set of facts perfectly consistent with innocence, these parties must first be convicted of perjury. I can see no ground for such conviction, except that bi'oad, general principle which holds that “ all men are liars,” and most women too'.

Nothing was more natural than that these administrators should urge people to buy just as they dic^. They knew that the property must be sold. They had no discretion as to the time of sale. The law fixed that. It was a period -of depression in commercial and financial affairs, when the Bank of the United States had its grip upon the vitals of the community. The sales were to be large, and it was perfectly right for the administrators to urge people to buy. They further had the right to advise people to buy in hope and prospect of profit. Certainly they should not have advised them to buy in prospect of loss.

Mr. Ben. M. Piatt did just this thing, and is attacked precisely as Longworth is. Mr. Isaac Dunn, progenitor of most of the complainants, artfully endeavors to convey the impression that Ben. M. Piatt proposed that Dunn should bid in the property, and they should divide the profits. There is no foundation whatever for such an idea, and Dunn’s testimony shows there was none except in his own unpleasant fancy.

In his first deposition, he says the arrangement was that he was to bid off the property, and Piatt was to make the payments, and after a resale the profits were to be - divided.- Then he says that he knew no one but Piatt in the matter, “ and, consequently, understood that he was to sell the property, and divide the profit with me.”

In his first deposition he says : “ The property was bid off by me with an understanding between B. M. Piatt and myself, that when the property was sold I was to have one-half the profit.”

Then being asked “ Who was to have the other half of the profits,” he says : “ Benj. M. Piatt; I know of no other person.” The last clause of this sentence gives the lie to the first. The last shows to be an inference of his own, what the first had stated tó be a fact. '

Thirteen days after Dunn’s first deposition was taken, Ben. M. Piatt testifies. He denies entirely that there was any such arrangement as Dunn suggests, and declares that the idea of dividing profits is entirely without foundation ; that the -whole thing is new to him, and that he did not and could not have entered into any such arrangement, as it would have been obnoxious to his office and duty as administrator. But as Piatt only counterbalances, Philip Grandin overthrows Mr. Dunn. Dunn says Grandin was present when the arrangement was made about bidding off the property. This is what’ Grandin says : “ Prior to the sale, B. M. Piatt proposed to me and the other heirs, as I understood, that inasmuch as the estate of John H. Piatt was insolvent, the heirs could derive nothing from'that source, but that they might purchase the amount of his fees, on a credit at six per cent, interest, as he could not buy himselfj being administrator. I considered it a very liberal proposition, and so said to Isaac Dunn, who declined accepting it,” etc. Grandin scouts -the idea that the arrangement proposed' embraced a division of profits with Ben. M. Piatt.

It thus appears, that both Piatt and Longworth urged their brothers and sisters to buy. Both offered to -lend their fees for that purpose. The facts as against both seem to be similar. Ben. M. Piatt is dropped out of the case, and if all the evidence which is pertinent to him alone, but incompetent as against Longworth, had been likewise dropped, it might materially vary the case.

If, however, the conclusion that these purchases were really for the benefit of Nicholas Longworth is the true one, and the transaction, therefore, illegal, still the cestui que trust may assent to it. The transaction, though voidable, may be ratified by acquiescence or assent. If the cestui que trust, being competent to act, knows or learns all the facts, and does not make complaint within a reasonable time, he is certainly bound by such a silence.

When the sales were made, all the Piatt heirs knew exactly what was done. They were then indifferent. The estate was known to be largely insolvent, and in no event could they ever get anything, and the creditors even but a small percentage. This was the clear outlook in 1825. Had Mr. Longworth bought directly for himself, the heirs would have made no complaint, for they had no interest which could, by any possibility, be-injured. But had they then made any objection; had they then charged that Mr. Longworth was being unfaithful to his trust, the way to end all such difficulties was plain. The property would have been resold. The administrators would at once have proceeded to wind up their office and rid themselves of duties in the discharge of which they only incurred obloquy. The end being, that creditors would have received nothing, and the heirs would have been as fortunate as the creditors. A settlement of the estate, under strict forms of law, would have sacrificed everything and everybody, the largest beneficiaries being the administrators in the fees they wopld have received.

But this was not done. By a system of negotiating; of nursing the assets of the estate; by settling with creditors, when this could be done, some debts being finally barred, a large surplus eventually remained. The administrators gave the heirs all the benefit of these many years of service. Although debts were bought up at discount, in no instance did the administrators charge more than they had actually paid. Of course there was no merit in this, except that of honesty.

But after all this has been done — after the heirs have been lying by twenty-five years seeing it done — it seems to me that fairness and justice should seal their mouths now. They have adopted and ratified Mr. Longworth’s acts by accepting the benefit of them — a benefit which would not have resulted had they otherwise than apparently acquiesced while the acts were being done.

The deed containing the evidence of the transaction as it really was, was recorded, as has been said, in 1834. It is not claimed that, as it there stood, it was notice to these heirs of what it contained, in the sense that public records are constructive notice. But if the evidence in the case is such as to show that they had actual notice, or if they were, fairly put upon inquiry, that would seem to be sufficient. In 1846 these heirs sought a settlement with the administrators. Leaving out of view the testimony of Judge Piatt, the co-administrator, who vindicates the fairness of that settlement in every particular, and who says he imparted, without reserve, all he knew about the estate, there is other evidence quite as important. The heirs did not come prepared to rely upon what the administrators might say. So far from coming as wards to a trustee, they assumed a hostile attitude. They employed able counsel to represent' them. It must be apparent from Mr. Anderson’s testimony that they had been to the office of the Probate Court, then the Court of Common Pleas ; that they had examined the accounts of the administrator and the returns of sales, for Mr. Anderson says they appeared to be as familiar with the business as he was, and they came with the papers, copies, or abstracts in their hands. If the heirs were suspicious enough to employ counsel to search the records of the Common Pleas for the purpose of information, it is not violent to suppose that they went into the recorder’s office to ascertain what had become of the real estate sold to Catharine Longworth and others, .whom the returns showed to h^ve been purchasers. Once there, they would have found the deed of 1834, which would have informed them of every fact they now know. That it was natural for them to make the inquiry whither the property went would appear from the fact, that Abraham Piatt, one of the plaintiffs, and Isaac Dunn, father of most of the others, were at the sale, and bid in property for J. W. Piatt, who is charged with holding it by virtue of a swindle precisely similar to' that which is alleged against Catharine and Nicholas Longworth. With such an experience of their own at hand, when Abraham and the descendants of Dunn came to the settlement of 1846 it is quite likely they would endeavor to learn if Mr. Longworth had been as peculiar in his conduct as they themselves had been.

At the date of this settlement no fiduciary relation any longer existed between Mr. Longworth and the heirs as to the property now in controversy. I believe that the intimation in Barrington v. Alexander, 6 Ohio St. 189, is the correct rule : that when property is sold, the deed executed, and the money paid, the fiduciary relation of the administrator as to that property ceases any longer to exist. The deeds of the administrator wex'e executed in 1834; some, pex’haps, earlier than that date. When, therefore, the heirs approached the administrators in 1846, the fiduciary relation had ceased as to such property as had been sold and coxxvoyed at least twelve yeai’s before. In law, therefore, they were dealing at arms’ length, and the intervention of able counsel and the precautions they took show that they wex’e so dealing jn fact. It seems to me they were fairly put upon an inquiry, which other circumstances within their knowledge must have suggested. I believe not only that they ought to have made that inquiry, but that they did make it; that they not only oxxght to have known what was in the deed of 1834, but that they did know it. It is proper to observe that if axxy one living did know that this px’opex’ty was bought for Longwoi’th in 1825, Mr. Anderson must have known it, and the same remark may be made of B. M. Piatt, co-administrator.. Both deny knowledge or suspicion - even of such a fact. It is also proper to say that of the heirs who took part in the settlement no one has come forward to assert his ignorance of the deed of 1834, and its contents at the date the settlement was made. This ignorance is asserted in the bill, but 1 have not seen that it is sustained by any sworn oath of those who knew whether the fact was true or false. ■

If remote circumstances are to guide our inferences in this matter, it seems to me just as fair to charge these heirs with seeking an undue advantage as to attribute the same design to Mr. Longworth. The plaintiffs are at pains to show by the cross-examination of Mr. Anderson that at the settlement in 1846 the idea of this secret trust was not then alluded to by them. This is to show their entire ignorance of the matter at that date. What they had been unable to learn, or even suspect, in the long period of time that elapsed between 1825 and 1846, they were able to discover in all its particulars between 1846 and 1850. By the settlement made, they realized, as is said, a large property. In 1850 they file this bill against Longworth and various members of their own family. In the progress of years they eliminate their -own relations from the controversy, and Longworth is left to contend alone against the ingratitude of those to whom he had already saved a fortune. It seems to me just as fair to say that they made the settlement of 1846 with all the knowledge they now possess; that they made it with the deliberate intention of getting into their hands whatever they could by negotiation, and then springing this charge at such time as should suit their purpose, meaning to prosecute it in such a manner as should not be too severe upon their own friends.

Originally there were quite a number of defendants made to this bill. All of those who have answered deny all the charges of fraud and conspiracy, aud controvert the plaintiffs’ case in every particular. Plaintiffs appear to have been satisfied with this denial, for they are all dismissed. If we seek the testimony of witnesses, I am unable to find one, with perhaps the exception of Isaac Bunn, who testifies on the point, wbo does not testify in opposition to complainants’ theory. As to the documentary evidence, so much relied upon, it must be construed in a sense directly opposite to that which the words import to make a case at all. It is my belief, therefore, that the sales in question were really made as they purport to have been; that the actual purchasers were those named; that not until some years after did Mr. Longworth conceive the idea of buying, which he then had a perfect right to do. Hpon the whole ease — upon the evidence, which is voluminous, and the arguments of counsel, on both sides unusually able and thorough — I do not for one moment hesitate in my convictions. My only doubt arises from the fact that I am- so utteidy at variance with a majority of my colleagues.

Whitman, J., &1so dissented.  