
    *Jacob Bohart and Peter Bohart v. Isaac Atkinson.
    In proceedings in partition, an appraiser, in the absence of fraud, prior to the aot of March 29, 1841, might become a purchaser at the sheriff's sale.
    In the absence of fraud, such proceedings can not be questioned collaterally.
    In such proceedings, the acts of the guardian of a minor, done in good faith, are binding upon his ward.
    Where, a minor, in such case, on arriving at full age, ratifies the acts of his guardian, by receiving and appropriating the proceeds of the sale, with > full knowledge of the facts, he is estopped in equity from taking ad* vantage of a mere irregularity in the proceedings.
    Allegations of fraud in the bill, if denied in the answer, and unsupported by > proof, aro of no avail, even though there may he extrinsic circumstances calculated to excite suspicion.
    The rule of policy applied in the case of Armstrong v. Huston’s Heirs, is a rigorous one, and will not he extended to a case not strictly in point.
    This is a case in chancery, reserved in the county of Carroll.
    The bill states, in substance:
    That Peter Bohart died intestate, seized of the northwest .quarter of section 31, township 14, rang® 5, in Carroll county, except about thirty acres, on which the town of Centerville was located. That, in April, 1836, a petition for partition was filed in Columbiana common pleas; these complainants being then minors.
    That the defendant combined with Morris, the sheriff of Columbiana, to be appointed appraiser.
    That the land in question was appraised at $1,250; far below its value.
    That Atkinson fraudulently procured the sheriff, at the sale, to strike it off to him, and before the hour of sale expired; thereby preventing bidders from bidding.
    That part of the land had been laid off into town lots by the defendant, and lots sold to the amount of more than $20,000, the receipts from the sales being more than the purchase money and interest, and defendant had a large quantity unsold; that he refused to account or to convey to the complainants.
    The complainants claim, as heirs of said Peter Bohart, two-sevenths of the property in controversy.
    *The prayer of the bill is, that the defendant may account for the amount he has received for lands sold bona fide and conveyed to innocent purchasers. And after refunding purchase money and interest, that two-sevenths be paid to the complainants for the conveyance of two-sevenths of the land not sold, to the complainants, and for general relief.
    . The answer (among other things) states that at the sale three of the heirs of Bohart were of age, and, with the guardians of the remaining four, were present, and agreed upon the terms of sale, which were reduced to writing, and read to the bidders by the sheriff; that Sinclair (who had purchased the interest of one of the heirs) bid $1,250 and stopped. About twenty tracts were sold by the sheriff on the same day the property was sold. This tract was sold about 12 o’clock m., and no one was prevented from bidding. At the April term, 1831, the sale was confirmed by the court. The three adult heirs and the guardians of the four minors being present, made no objections, and received the proceeds. This adjudication remains unreversed. The complainants, since they were of' age. and before filing this bill, have received their shares of the purchase money, knowing all the facts. After the purchase by the defendant, it was found that four acres of the same land had been sold1 by Bohart, in his lifetime, to George W. Butler, which defendant bought at $250. The respondent has received more from the sale than the purchase money and interest, yet many thousand dollars less than the expenditures in improvements.
    To this answer the complainants filed a replication. Much testimony was taken in the case, but all the material allegations in the answer were sustained or left uncontradicted by the proof.
    John Harris, for complainants:
    Had Atkins a right to purchase at the sale, having previously acted as an appraiser, and in affixing a value on the *land? The case of Armstrong v. Houston’s Heirs, 8 Ohio, 552, would seem to be decisive of this case. The only shade of difference between them is, that that was the case of an appraiser, at administrator’s sale, and this an appraiser at sheriff’s sale, under an order of partition. The language of the court, in that case, is so full qnd comprehensive that it undoubtedly covers the case at bar. The court say that “the appraiser of land is interposed between the buyer and seller in judicial sales, to prevent sacrifices at reduced prices, to the detriment of those interested in its value. If he were permitted to profit by his position, the law would lose its strongest security for his integrity.” But it can not be said that this court, in that case, laid down any now doctrine, or extended the doctrine beyond the uniform decision in similar cases. There is no difficulty in tracing the same doctrine back through a long list of judicial cases, applicable to almost every supposable case of trust or confidence, “ that when a confidence is reposed, and one party has it in his power, in a secret manner, for his own advantage, to sacrifice those interests which be is bound to protect, he will not be permitted to hold any such advantage.” Griffin v. Robbins, 3 Madd. 191.
    The language of this court, in Armstrong v. Houston’s Heirs, “ that fullness of price, absence of fraud, and fairness of purchase, are not sufficient to countervail the rule of policy,” is not new. The same language is adopted by the English and New York courts in a variety of cases. Campbell v. Walker, 5 Ves. 678; Ex parto Hughes, 6 Ves. 617; 8 Ves. 337 ; Daroc v. Fanning, 2 Johns. Ch. 552. That the rule is applicable to all persons concerned in a judicial sale, is clearly held in the case of the New York Building Co. v. McKenzie, cited by Chancellor Kent in the above case of Daroc v. Fanning. That was a judicial sale of an insolvent company’s property to satisfy creditors. The course of such sales was to set up the property at a value fixed on by the court, called the upset price. The purchaser was the common agent of the court, who procured the information by which *the court fixed that upset price, and was, in fact, as the respondent in this case, the appraiser, who determined the lowest price at which the property could be sold. In that case there was no question of the fairness and integrity of the purchase; and, although he had been in possession eleven years, and expended large sums in buildings and improvements, yet the court — the house of lords — directed the sale to be set aside. % Johns. Oh. 2§8.
    This court has said, in the case of Dunlap v. Mitchell, 10 Ohio, 120, that “ no principle is better established, than that the person inti’usted with the authority to sell the land of another, can not himself become the purchaser.” And, although the court add that the principle has been pushed to a rigorous extent “in the case of Armstrong v. Huston’s Heirs,” 8 Ohio, 554; yet the court, in that case (Dunlap v. Mitchell), certainly intimates no desire to relax of that rigor the tithe of a hair; for the court add, “ If the case presented nothing more than a purchase, by Dunlap, of land, which he, as an executor, undertook to sell, the right of Mitchell to set aside these proceedings, would be recognized without difficulty.”
    But it is objected by the respondent, that one of the complainants, Jacob Bohart, has unreasonably delayed pursuing his rights, if he has any ; that he has slept on his rights, to the injury of the respondent; and that it would now be a fraud on the respondent to compel him to account and surrender his ill-gotten gains. The facts are, that, at the time of the sale, the complainant, Jacob, was an infant under twenty-one years of age ; that, before he arrived to the age of majority, he removed to a distant county in the state (Hardin); that he occasionally visited his friends at Carrollton, and, when there, was anxious to prosecute his claim against the respondent; was discouraged by Beaty, his brother-in-law, and ultimately'determined on waiting until his brother Peter came of age, which event occurred a few weeks before the filing of the bill. That he had continually asserted his claims, and in such manner, that the respondent must have known that he intended to prosecute for their recovery.
    *There is certainly no limitation in a suit of this kind, short of that period which bars an action of ejectment. In the case of the Now York Building Co. v. McKenzie quoted above, it is expressly stated that the purchaser had been eleven years in possession, and made large improvements, and yet he was bound to surrender his purchase. No disadvantage can result to the respondent by the delay. The amount received on sales he has used. Nothing beyond legal interest is asked by the complainants. If the respondent has improved any of the lots, under the mistaken idea of his right, the court have it in their power to compel the complainants to do equity before it will grant them equity, and compel them to give releases for such lots as the respondent has improved.
    D. Jarvis, ior defendant:
    The act of February 26, 1820, 2 Chase’s Stat. 1162, was the statute under which the proceedings in partition were had; and, without referring to the several provisions of that act in detail, I will remark that, after most careful examination of the law, I am unable to discover any provision contained in it which has not been complied with, even to the letter, from the time of filing the petition for partition, to the judgment of the court, ordering the “ money and securities to be distributed to and among the several parties entitled to receive the same, in lieu of their respective parts and proportions of said lands and tenements, according to their just parts and proportions.”
    Section 9 of that act expressly provides that guardians-may act for their wards in cases under that act, and their acts “shall be deemed as valid and effectual in law, to every intent and purpose, as if the same had been done by such minor, after his arrival at full age.”
    Now, suppose it be admitted that there was an irregularity, unconnected with fraud, in the proceedings in partition, all the parties being of full ago and assenting to the proceedings, would *any one for a moment hesitate to say that such assent waived all right in anyone of the parties to avail himself of such irregularity, to set aside the proceedings and destroy the title of the purchaser? It seems to me that section 9 of the act must be declared wholly nugatory, or else the acts of the guardians must bo held to bind their wards as effectually as the wards could have bound themselves if of full age. The guardians were parties to the proceedings, and, in addition to that, a guardian ad litem was appointed, who accepted the trust.
    Tf it were necessary, this court would presume that the common pleas had proof of every fact important to sustain its judgment. Glover’s Heirs v. Buffin, 6 Ohio, 269. “ It is well settled that errors or irregularities in the proceedings do not vitiate the final decision.” Ib. 270.
    “ Every reasonable intendment is to be made in favor of the proceedings.” 2 Pet. 164, 85. This case in Peters is cited by the court in 6 Ohio, 270, and the reasoning of the court adopted by our own court. ' •
    There is no pretense that there is any error in the proceedings in partition, unless it arises from the fact that Atkinson, one of the appraisers, became the purchaser at the sheriff’s sale. And if this is an irregularity, I insist that it was wholly waived by the parties to the partition, at the time of the sale, as well as at the time of the confirmation by the court. But, if what then»took place shall not be deemed a waiver, I submit whether the remedy is not by proceeding by writ of error to reverse those proceedings and that judgment of the court? I need not cite authorities to this court, to sustain the doctrine that if a party has a remedy at "law, chancery will not take jurisdiction. This judgment of the court of common pleas of Columbiana county, is wholly unreversed, and now stands as the solemn adjudication of that court; the present complainants and all others interested in the subject matter of that suit being then parties, and having a full opportunity to make any defense they chose to any part of the proceedings.
    Again, both thoso complainants have acquiesced in these proceodings *after they were of full age, and that, too, with a perfect knowledge of all the facts. Jacob has lfdd by nine or ten years after his majority, and received and pocketed the money paid by Atkinson. Peter received over $500, as his share of the proceeds of the lands, and nearly all of it after he was of age. It seems to mo it is unconscionable that either of these parties should now be permitted to go behind their own acts, and that, too, without even offering to repay the money advanced by Atkinson.
    I apprehend no one could have thought of bringing this suit, but for the decision of the court in Armstrong v. Huston's Heirs, 8 Ohio, 552. The decision in that case, so far as I know the views of the profession, ought to be reviewed, and I sincerely hope an occasion will ere long arise, when the court will be requested to take the question there decided again under its deliberation, and either affirm that opinion unanimously, or overrule it. With great deference to the opinion of a majority of the court as there expressed, I can not forbear expressing my entiro concurrence with the views of Judge Hitchcock, as given in his dissenting opinion. There is no occasion now to ask the court to review the opinion given in that case, inasmuch as the one at bar is unlike it, arising under a different statute. That case arose under an administrator’s sale; and the statute providing for such sales does not, as in the case of proceedings in partition, authorize the guardians of minors to bind their wards by their acts. And it does not appear, in that case, that the guardians or their heirs, either before or after their majority, assented to any part of the proceedings, or in any way acquiesced in them. In a proceeding by administrators to sell land to pay debts, as well as in partition, the appraisers are appointed by the court, the sheriff or administrator having no control over them. In one case the object is to sell the land and deprive the heirs of the proceeds. Id the case of a partition, the object is not to divest the lands from the heirs, but, in the first instance, to give them their distributive share, in case the land can be divided. If it can not divided, then to be appraised, with the right of any one of the parties to the petition, to take *the • land at the appraisement; so that the prospect of the sale at the time of the appraisement, is too remote to authorize the indulgence for a moment of the idea that the appraisers could be influenced by the remote prospect that they or either of them might become purchasers. The legislature doubtless had these matters in contemplation when they passed the act regulating proceedings in partition, and declined to insert a provision prohibiting the appraisers from purchasing. ■ This view is sustained by a reference to the act of March 29, 1841 (Swan’s Stat. 1015), passed since the decision in Armstrong v. Huston. By that act, it is declared that, in sales thereafter made, no appraiser shall be a purchaser where the price for which it the (real estate) must sell, shall bo governed by the valuation made by the appraisers. By section 2 of that act, it is enacted that all sales theretofore made of the lands of a minor, by an executor, administrator, or guardian, where an appraiser has purchased, “shall be good and valid in law and equity,” provided such sale is not otherwise fraudulent.
    This section of the statute substantially overrules the decision of the court in Armstrong v. Huston. It may well be inferred that the legislature did not, in this act, include sales before the'm made in partition cases, by reason of the decision of the court in Goudy’s Lessee v. Shunk, 8 Ohio, 416, where the court say, “ that the acts of courts, in proceedings of this kind [that case arose under a proceeding in partition, and under the same act of 1820, as the one at bar], being analogous to proceedings in rem, will always receive a favorable construction.” Again, “ where the sheriff possessed authority to sell, his sale to a purchaser in good faith, is effective.” In the same case, the court say that, “sections 2 and 9 of the statute of 1820 authorize guardians of minors to bring petition, and do any act necessary to make partition of the land of their wards.” No one could suppose, after this decision, that it could be necessary to pass a declaratory act, which would affirm sales made in partition cases, under circumstances like the one now under consideration; being, as it is, entirely free from the slightest suspicion of *fraud or collusion, as well as having the actual assent and acquiescence of the adult parties to the petition, and the guardians of their minors. Not only this, but these complainants, since they arrived at full age, have received the purchase money, and one of them (Jacob) has made no complaint for a period of nine or ten years after his disability was removed.
    Arguments for the defendant were also submitted by Wright, Coffin & Miner, and by G. W. Belden and E, M. Stanton.
   Birchard, J.

Several questions of interest arise in this ease, which will be separately considered. The position mainly relied on by complainant’s counsel is, that the respondent could not legally purchase the premises in controversy after having acted as an appraiser,^under the sheriff, in executing the writ of partition ; and that, having so purchased, he should be charged and held to an account as trustee. To sustain this point, the case of Armstrong v. Huston’s Heirs, 8 Ohio, 552, together with other’ authorities, are cited. That case presented the single question, whether an appraiser of land, at an administrator’s sale, stood in such a relation that his purchase, without fraud, could be set aside at the instance of the heirs. The case was determined by a divided court, a majority only holding that it came within the general principles of equity, which prevented those from acquiring a title to whose discretion or agency the management of a sale is confided.

Without intending to overrule or impair the force of that decision, wo are not prepared to extend it to any case where it is not strictly in point. In cases of sales by sheriffs, a statute law had prohibited a purchase by the appraiser. Since, the sale now in question was made, a law has been enacted (Swan’s Stat. 1015) prohibiting the appraiser of any tract or lot of land, from becoming the purchaser, at any sale wherein the price for which it must sell shall bo governed by his valuation as an ^appraiser.

Section 2 of this act declares that, “ every purchase of land by an appraiser thereof,” theretofore “ made at a sale by an executor, administrator, or guardian, shall be good and valid in law and equity, provided that such a sale may be set aside for actual fraud, and that the costs in suits then pending, involving the class of cases made by the section, should be decided in such manner as to the court might seem just and equitable under the circumstances. Yiewing this statute in connection with the decision in Armstrong v. Huston’s Heirs, one can scarcely doubt that the framers of the statute considered the decision of that casein assumption of their prerogative, and as evincing a departure from the true office of a judicial tribunal, which is to declare the law, not to create it. Nor can one doubt that they approved the principle upon which it is based. Hence the enactment of section 1 declares that thereafter the rule shall exist and be extended to all judicial sales subsequently to be made. By implication, this section would also seem to indicate that no such rule was, prior to that date, the law of Ohio ; for the enacting of a law like this, would be a work of supererogation, if in fact the same law was already in force.

Strongly in support of this view of what was then the mind of the enacting power, is seotion 2 of the act. It strikes at the decision itself, by making valid the identical class of sales which it would render invalid, and can not be considered less than a legislative opinion that the decision was ei'roneous. With this view of the law, it is our duty to consider whether there is an identity in principle, between the case of Armstrong v. Huston’s Heirs and the case at bar. That was an administrator’s sale; this is a sale on proceedings in partition. In that, the appraisal was made in view of a sale — the proceeding could terminate in nothing else. Not so in this. The sale could not follow the appraisal as a matter of course. The object of the proceeding was to enable several co-tenants to enjoy each his own in severalty. A sale could not take place until each and all of the tenants in common had declined in court to take the property at its appraised lvalue. Atkinson must have possessed more than ordinary foresight, to have foreseen that neither of the parties would elect to take this land at the appraisal. Admitting that no one of them possessed means to pay down the amount of the appraisal, it did not follow, necessarily, that a sale would be had. The property was theirs, and, rather than suffer it to be sacrificed at a price less than its value, one, two, or more of its owners might and doubtless would have taken it, and secured to the remaining co-tenants their respective shares of the money, by mortgaging the land itself. In a case like this (in the absence of actual fraud), we should go, I apprehend, far beyond the principles established by any w^ll-considered case, were we to hold the purchase'fraudulent on the ground of public policy. We are not inclined to push a very rigorous principle to such an extent. Rules thus extended, are not to be favored; they are retrospective in their operation, when their vitality is imparted to them by the power of a court; and, like all retrospective legislation, should only be resorted to in cases of pressing necessity, and where no positive right in law or equity would be violated.

Wo approach next the question whether this purchase is tainted with actual fraud.

Complainants, in their original and amended bills, charge “that the respondent, being desirous to own this land, confederated with the sheriff, to procure him to select him as an appraiser, in order to procure an appraisal at $1,250, a sum far below its intrinsic value, and that he fraudulently appeared to bid $1,250, and fraudulently procured the sheriff to strike it off to him before the hour of sale had expired, by means of which many persons who would otherwise have been bidders, were prevented from bidding.”

These allegations would be abundant to set aside the sale, if maintained by proof. Unfortunately for the complainants, the owners fairly meet them by a denial, and the evidence in the case sustains the answers. Ye think counsel feel the force of this, else why the remark that “ the defendant has taken much *pains to obtain testimony to prove that no fraud in fact attaches to this transaction, of which the plaintiffs complain, and that the land sold for its full value. After having fully answered, denying all actual fraud, he might have well spared himself the trouble of taking testimony until the opposite party had undertaken to taint it with actual fraud.” We were not a little surprised at encountering, in quick succession, after reading the above, an argument somewhat labored, with a view to convince us that there were “features in the case sufficient to throw strong suspicions on the fairness of the appraisers.” The record in partition and the fact (said tq have been notorious) that a new county had been for several years in agitation, with no other spot than this spoken of as the county seat, are the features relied upon to sustain these suspicions. Were we to run into the same train of reasoning in which counsel have ventured, we should be hardly bold enough to declare that fraud in fact actually did exist, upon nothing more than bare suspicion of its existence. Fraud is a thing to be proved. When the proof fails, it is but little use to indulge in suspicions, more especially if, as we think in this case, they are not well founded.

Again, the proceeding in partition was under the statute. If error intervened, certiorari was the proper remedy. It was a judicial proceeding, and can not be collaterally impeached unless tainted with fraud. But suppose fraud in law existed, and that we are in error in the position first taken, how then stands this case? There were seven heirs — threo adults and four minors. The adults were present at the sale, together with the guardian of the minors, and all agreed to the terms. By their agreement, one-fourth only was required to be paid in hand, and a credit of one, two, and three years was given for the balance of the purchase money. Atkinson bid at the instance of complainant’s guardian, who requested him to do so; paid them the purchase money required to he paid in hand; with them arranged the securities for the deferred installments; has since paid them in full. And after complainants came of *age, they ratified the acts of their guardians, by receiving and appropriating the purchase money. One of them, after receiving the money, with full knowledge of the fact, remained quiet until the period had elapsed limiting actions to recover money before he joined in filing this bill. This conduct should defeat him, were there no other obstacle in his way. The acts of the guardians should also estop them. The statute gave them the authority to act for their wards. They did so act, and their acts should, in the absence of fraud, bind the minors as effectually as if they had been adults, and had been present, acting for themselves. To permit one, who requested another to purchase — who stood by, saw the purchase made, and received his share of the proceeds — after appropriating the funds, to turn round and avoid the salo to such buyer, would be against conscience. It would be giving sanction to fraud.

Bill dismissed.  