
    *David Glass et al. v. Isaac and Thomas Greathouse.
    In a ease in chancery where there are two defendants, and the bill is dismissed as to one and a decree against the other, an appeal by the latter does not vacate the decree as to the former; more especially where there is not that necessary connection between the defendants but that the rights of one can be determined without affecting the rights of the other.
    In such case, if the complainants are not satisfied with the decree dismissing the bill as to one of the defendants, it is incumbent on them to appeal. An appeal by the other defendant against whom a decree is rendered, does not appeal the case as to the defendant as to whom the decree dismisses the bill, nor is such latter defendant a party on appeal in the court above, so that his right may be passed upon.
    If an administrator purchase land at his own public sale, he will be held to-have purchased intrust for the heirs, and upon being refunded the amount by him paid, will be decreed to convey to the heirs. If ho has sold the land to a third person, he (the vendor) will be held to account to the heirs for its value at the time of its original purchase or otherwise, as the case may be, with interest, first deducting the amount by him paid.
    Such is the rule, whether the administrator purchase directly or through another person for his benefit.
    Bill in chancery, reserved in Highland county.
    The complainants are the heirs at law and legal representatives of Robert Glass, lato of Highland county, deceased. It is stated in the bill that said Robert Glass died in 1828, leaving personal property, and also seized of 220 acres of land in Highland county, which is particularly described in the bill, and which is the principal subject of controversy in this case. At the time of his death he left a widow, who is still surviving. It is further stated, that at the July term of the court of common pleas of Highland county, 1828, letters of administration were granted to tho defendant, Isaac .Greathouse, who accepted the trust, and at the April term of the same court, 1831, filed a settlement account with the court, showing that there then appeared in his hands $350.66, to be distributed among the widow and heirs. It is charged that this balance has never been accounted for, and the defendant, Isaac, is now called upon to account for it.
    *It is further charged, that at the same term of the court, to wit, the April term, 1831, one Jonathan Allison, of the State of Virginia, commenced a suit at law against Greathouse, as administrator, for the recovery of a certain debt against the estate, which ■pretended debt was known by the said administrator to have been paid, and that the administrator collusivoly procured', said suit to be commenced against him, with design to defraud the estate, and that at the October term of the court, 1832, although he knew there was a good defense in the case, suffered judgment to be rendered against him for the sum of $279, with costs.
    It is further stated, that at the April term of the same court, 1833, Greathouse presented a petition, praying for an order to sell the real estate before named, to satisfy said judgment, falsely representing that the aforesaid balance of $350.06, in his hands at the time of the settlement aforesaid, had been principally distributed to the widow and heirs, and that nothing remained in his hands to discharge the payment except the sum of $60.87. Such proceedings were had, that at the October term of the court, 1833, an order of sale was made, said real estate having been previously appraised at $450, exclusive of or subject to the widow’s dower. The first order was that the land should be sold for cash in hand at not less than two-thirds of the appraised value. At the March term, 1834, the administrator imported that he had twice offered the land for sale, and that it remained unsold, for want of bidders. The court then ordered the land to be sold at not less than $260. At the June term of the court, 1834, the administrator again reported that the land had. been offered, and not sold for want of bidders. Another order was then made by the court, that the land should be sold for not less than one-half the appraised value. In pursuance of this latter order, the land was again offered for sale' at public auction, and struck off to Lewis Lewis, who bid for the same $235, which *was the highest and best bid, and more than one-half the appraised value. This sale was on August 2, 1834. The sale was confirmed at the October term of the court of the same year; and on the 17th day of October, after the confirmation, Isaac Greathouse, as administrator, conveyed the land to Lewis, and Lewis on the next day, to wit, on the 18th day of October, reconveyed the same land to Greathouse, whereby the title became vested in him.
    It is further charged in the bill, that from the inception of the proceedings on the petition to sell land, down to the time of actual sale, the conduct of the said administrator was fraudulent throughout. That by fraudulent means he procured the order of sale; that by like fraudulent means ho procured the land to be appraised much below its real value; that by fraudulent means he prevented the sale, until the order was made that it should be sold at not less than one-half the appraised value; and that by fraud and collusion with Lewis, he caused the land to be struck off to Lewis, whilo in fact Lewis was acting for him, and bid in the land as his agent. As evidence of this last charge, it is stated that the amount bid for the land, and inserted as a consideration of the deed from Greathouse to Lewis, was $225, and the consideration of the deed from. Lewis to Greathouse, was $226.
    It is further charged, that on January 30,1844, Isaac Greathouse by deed duly executed, the consideration of which, as expressed, was “ natural love and affection and fifty dollars in money,” conveyed the same land to the defendant, Thomas Greathouse ; and that at the time of the conveyance, Thomas Greathouse had full knowledge of the rights of the complainants, and of the truth of the charges made against his father.
    It is further stated, that at the time'of the death of their ancestor the complainants were infants, and that some of them had arrived at full age but a few years before the filing of the bill.
    The prayer of the bill is, that the defendants may be considered *as holding the land in trust for the complainants, and that the defendant Thomas be decreed to convey the same to them; that the two defendants account for the rents and profits; and that the defendant Isaac account for the moneys in his hands, as appears by his settlement with the court in 1831; and for general relief.
    The bill was filed at the March term of the court of common pleas of Highland county, A. d. 1848.
    In his answer, Isaac Greathouse admits the death of Robert Glass, and that he was appointed his administrator. He admits there was personal property, and states the whole amount of assets which came into his hands. He admits the settlement with the court in March, 1831, at which time there appeared to be in his hands $350.66 ; but insists that, previous to that time, he had paid to the widow and guardian of the heirs of Glass, from the assets in his hands, considerable sums of money, which were not stated in the account, by the ad.vice of his counsel; and that, in truth, there 'was but about sixty dollars, belonging to the estate, in his hands-at the time of the commencement of the suit by Allison, and which he paid over to Allison after the rendition of the judgment.
    He admits the commencement of the suit by Allison, but denies that it was done by collusion; denies that he knew or was informed that the claim had been paid, or that he knew of any other defense in the case than the defense which was actually mado; alleges that in this whole transaction he acted with the utmost good faith.
    He admits the filing of a petition for the sale of the land, and that the same was sold as alleged in the bill, but denies that, when sold, Lewis purchased for him or by his procurement; and alleges that, after the sale, he purchased of Lewis in good faith, paying him one dollar additional price as a compensation for his trouble.
    He admits the conveyance to his son Thomas, and that the consideration was love and natural affection and fifty dollars. This fifty dollars he says was actually j)aid to him by his son. *He denies, all and singular, the numerous frauds charged against him in the bill.
    Thomas Greathouse, in his answer, denies that, at the time of his purchase or before, he had any knowledge of the claims of the complainants, or of any improper conduct of his father and grantor, relative to the estate, and insists that he is a bona fide purchaser for a valuable consideration, without notice.
    In the court of common pleas, there was a decree against Isaac Greathouse, and the bill was dismissed as to Thomas. Both the complainants and the defendant, Isaac Greathouse, gave notice of appeal. The appeal was jmrfected by Isaac, he giving bond according to law.
    The conclusions arrived at from the evidence are stated in the opinion of the court.
    D. Soott, for complainant:
    The claim of Allison against the estate of Robert Glass, and the judgment procured thereupon against Greathouse, as administrator, were fraudulent. Greathouse knew of Allison’s claim. How? Was it regularly authenticated and received by him, or was it rejected ? If the first, Greathouse should have paid it before distribution or settlement, and, failing to do so, ho made the suit brought by Allison his own. 7 Ohio, 21, pt. 1. If the last, Allison had his right of action against him, which he should have prosecuted within the legal limits, and before the settlement of the administrator; otherwise his action would seem to be against the heirs or distributees. 2 Ohio, 156. The failure of the administrator to give notice of the claim to the heirs of Glass is a badge of fraud. Allison recovered judgment in October, 1832, and in April following, assumed the duties of an administrator of Glass. I say assumed, for, under the statute (Chase, 1311, sec. 18), he was not authorized to petition as administrator to sell land to pay debts, after having made his final settlement with the court.
    In the spring of 1831, he volunteered to become a defendant *to Allison’s suit, for no one had then a right of action against him, except for the balance then in his hands, as found on his previous final settlement, and that not in his character of administrator of Glass. 6 Ohio, 21; 2 Ohio, 156.
    Though Greathouse was executing a usurped trust, he will be held to a faithful discharge of it. His trust was not fairly executed. He omitted to give notice to the heirs of Glass, of the claim, of his petition to sell, or of the fact that their land was to be sold ; and this he was bound, in good faith, to do. They lived in Yirginia, and should have been notified by letter or actual notice. 1 Story’s Eq., sec. 218. The evidence shows that Lewis purchased the land sold by Greathouse as administrator, merely as the agent of Greathouse, and for him. A purchase by the trustee of the particular property of which he has the sale, “per interpositam personam,” carries fraud on its face. 4 How. 552; Davone v. Fanning, 2 Johns. Ch. 252; 8 Ohio, 216, 552; 10 Ohio, 117; 9 Ohio, 57; 12 Ohio, 351; 5 Pick. 519 ; 15 Pick. 24; 5 Met. 462; 4 Binn. 7 ; 7 Barr, 48; 11 Conn. 343; Cox, 26; 3 Har. 74; 5 Har. & Johns. 147 ; 1 Hawks, 479; 2 Blackf. 377 ; Peck, 443; 1 Gilman, 615; 3 Maule & Selw. 574; 2 Story’s Jur., sec. 12, 58.
    The sale was absolutely void.  The administrator, Greathouse, acquired no property in the land by the conveyance from Lewis. He therefore could convey none to his son, who, according to the evidence, had notice that Lewis bought for the administrator. “An abuse of a trust can confer no rights on the party abusing it, nor on those who claim in privity with him.” 2 Story’s Eq., sec. 12, 58; 3 Maule & Selw. 574; 2 How. 401. The remedy of cornplainants is not impaired by lapse of time. 4 How. 561; 6 Wheat. 481; 10 Ves. 467; 1 Cox, 149 ; 10 Pet. 177.
    *N. Barkers and J. H. Thompson, for defendants:
    The first question to be determined, is this: Is the whole cause appealed up, and before the court? By the decree pronounced in the court of common pleas, the defendant, Thomas Greathouse^, was dismissed, and out of court. The other defendant, Isaac Greathouáe, afterward appealed from the decree against him. Now, as Thomas Greathouse was out of court, can any act of his co-defendant bring him again before the court? An appeal operates precisely as a continuance. So does a new trial. Suppose a case to be tried against two defendants, and a decree or judgment is rendered against one, and the other is dismissed or acquitted, and the one against whom the decree or judgment is rendered, applies for and obtains a new trial, does that bring the party who was dismissed or acquitted before the court on the second trial ? Surely not.
    This is a proceeding in personam, and not in rem; and, therefore, although the land in controversy would be hold subject to the same extent for any amount this court might decree against Isaac Greathouse, not exceeding the sum fixed by the decree in tho court below, nevertheless, as this lien is to the prejudice of Thomas Greathouse only, and he does not complain of it, who can?
    There are two questions, and but two, in this case. The first, as to the proceedings of Isaac Greathouse, as administrator, previous to the sale of the land to Lewis. The second, as to tho fairness and effect of the sale to Lewis.
    It is alleged that Greathouse, by collusion with Jonathan Allison, caused the judgment to be obtained against him as administrator. This allegation on the bill is not sustained by proof.
    * The next question is, whether the sale was fairly and legally made. It is alleged that the sale to Lewis was not real, but was^ in fact a sale to the administrator through Lewis. There is no proof going to establish tho fact. For principles of law applicable to this part of the case, we refer to 4 Ohio, 446, *and 11 Ohio, 193, particularly the latter. All the presumptions are in favor of the legality of the proceedings, and an innocent purchaser can pot be injured or implicated, except whore actual notice is brought home to him. The proof shows that Lewis was really and bona fide the purchaser; but if the court take the other view of the subject, still wo insist that can not affect 'the land in the hands of Thomas Greathouse. And what must be its effect on his father? There was no statute forbidding him to buy at the sale, and the judicial decisions relied upon were not then made. Why, then, was the purdhase made through Lewis? Eor fraud? No. But to enable the party to get a conveyance; he could not convey to himself.
    What, then, are his liabilities, if he is to be considered in the light of trustee? We answer, Nothing, if the sale was fairly made, for a Mr price, and the proceeds of the sale fairly applied; but if it was not, then he would be liable for the difference between the price obtained and a fair one.
    If, however, the court are even satisfied that Lewis actually bought for Greathouse, and that Thomas Greathouse knew that fact when he bought of his father, we submit that, under the authority of Wade v. Pettibone, 11 Ohio, 57, the complainants can not recover. The complainants lived in Brooke county, Va., and knew of the sale as early as January, 1835, if not earlier. This suit was not brought until 1847. Glass died in 1828. Some of the complainants were nearly forty years of age; and all of them were of age previous to the commencement of this suit—the youngest being twenty-two years of age.
    If the purchase in the first place was wrong, and Greathouse held as trustee, in 1847, the complainants could not assert their claim, having had notice in 1835.
    In the case in 11 Ohio, 59, the delay was twenty-five months—■ here it is thirteen years.
    By the authorities, the administrator shall not be permitted to make any profit of the estate committed to his charge by ^purchase. It is not a settled, fixed, invariable rule in equity, that all sales and purchases will be held void; but that a court of equity will look into transactions between persons in these relative situations with extreme jealousy, and if it find the slightest trace of undue influence used, or unfair advantage taken, will interfere and give redress.” See Hill on Trustees, 160-170, 535, 538. In a word, the purchase is voidable, and not void. See 5 Pick. 519; Hill on Trustees, 535, 538; 10 Ohio, 117. And a court of equity will set aside the sale, or order another sale of the premises, as the propriety of each transaction demands, in view of the facts; and the court have established three principles by which they are governed: 1. Was there fraud in the purchase? 2. Would the property have commanded a higher price at the time of the sale ? 3. Although the property might have commanded a higher price at the time of the sale, and profit has been actually made by the purchaser, yet subsequent acquiescence for a reasonable time operates as a bar to any remedy. Welch v. Perkins, 8 Ohio, 52; Dunlap v. Mitchell, 10 Ohio, 117; Wade v. Pettibone, 11 Ohio, 57. The infancy of some of the defendants is no excuse for the long acquiescence. Henry v. Conn, 12 Ohio, 194, 195 ; Scott’s Ex’rs v. Barber’s Heirs, 14 Ohio, 547. See Christmas v. Spink, 15 Ohio, 600, and also 716.
    
      
       See 6 West. Law Journal, 565; Bohart v. Atkinson, 14 Ohio, 228; Armstrong v. Hueston, 8 Ohio, 552.
    
    
      
       See 4 West. Law Journal, 298, Archer v. Hudson, and note. Also 384, Davies v. Lowery, 15 Ohio, 655.
    
   Hitchcock, C. I.

The first question submitted to the court for consideration is, whether Thomas Greathouse, one of the original defendants, is before this court. As to him, the bill was dismissed in the court below. From this decree the complainants gave notice of appeal, but they never perfected that appeal. By neglecting so to do, they lost all claim against him, unless the appeal by the defendant, against whom a decree was rendered,' vacates the decree rendered in favor of his co-defendant.

It seems to be supposed that section 6 of the act of March 12, 1845, “ to amend the act to direct the mode of ^proceeding in chancery ” (43 Ohio D. 125), may have some influence upon this subject. That section provides that “ any party to a suit in chancery may appeal his separate part of the suit; in which case, the court from which the appeal is taken, shall direct the amount and condition of the bond on appeal.” I do not suppose that this section has any reference to a case like the one now before the court. That section was intended to provide for difficulties which frequently arose in practice, as to how much of a case was removed by an appeal, where a part of those against whom a decree was entered were satisfied and a part not. In such case the question was often raised whether an appeal by one of the dissatisfied parties vacated the decree, and removed the case as to those who were satisfied. The court generally held, that where there was that intimate connection between the parties, that the rights of one could not be adjudicated without the adjudication of the rights of the others, the appeal of one vacated the whole decree. But in cases not so situated, the decree as against him alone who appealed was vacated. This statute removes all doubt upon the subject.

But in the case now before us, there was a decree against but one of the two defendants, and he appealed. From what? Unquestionably from the decree against himself, not from the decree in favor of his co-defendant. There is no necessary connection between these defendants, so that the right of one can not be determined without deciding upon the rights of the other. We are of opinion that Thomas Greathouse is not before this court.

The bill in this case charges fraud upon Isaac Greathouse in every page, and almost every sentence, but whether any has in fact been committed, must depend entirely upon the evidence, and in truth there seems to be no difficulty as to any question of law.

There are numerous depositions, and without reciting the substance of them, I propose to state rather the conclusion to which our minds are brought by their examination, than to recite the language of the several witnesses.

*It is charged that there was fraud, upon the part of Great-house, in taking out letters of administration, and in his proceedings down to the time of the settlement account filed with the court in 1831; that there was fraud and collusion between him and Allison, in the commencement of the suit by the latter in 1831, and in the failure of the former to make defense to that suit, when he knew that the claim was without foundation, and might be successfully defended against; that there was fraud in Greathouse in not ajoplying the §350.66, found in his hands at the settlement in 1831, to the satisfaction of the judgment recovered by Allison; but, instead thereof, procuring an order of the court to make sale of the real estate to make the payment; that there was fraud in his conduct, after the order of sale was made, in preventing the land from being sold for its true value; and finally, that there was fraud in his employing Lewis to purchase the land for his own use.

The first point made is, that Greathouse conducted fraudulently in procuring letters of administration, and in his proceedings in the settlement of the estate down to the time of filing the account, in 1831.

There is nothing in the evidence to show any improper conduct on the part of Greathouse down to this time. It would seem that his proceedings were in accordance with the laws and customs 'of the country. It is true that the widow states that after the death of her husband she was about to sell the personal property which was left by him and return to Viginia, from whence they had recently removed. That Greathouse advised her that it would not be safe to sell the property without taking letters of administration. That she went with him to court, and the court inquired of her whether she was willing that he should be appointed administrator, and she replied that she was. That she supposed that she was ap ■ pointed administrator with him, and so continued to believe for some considerable length of time; and that when she ascertained it was not so, she thought things were not going as they ought. Now, this is %11 the evidence thero is upon this point, and this falls far short of proof of any misconduct on the part of Greathouse.

The next charge is that there was collusion between Allison and Greathouse; that the latter declined making defense in the suit of the former against him, although he knew that a good and successful defense could have been made. There is much testimony as to the justice of this claim of Allison; and taking the whole into consideration, it is, perhaps, doubtful whether it was just or not. But there is an entire lack of testimony to show that Great-house knew of any defense that could be made. Instead of collusion between him and Allison, the evidence is that there had been no meeting, no correspondence between them until after the commencement of the suit. It is complained of him that he did not correspond with the family, residing in Virginia, upon the subject. The proof shows that one of the guardians of the children was present at the time of the commencement of the suit, so that the family wore not ignorant of its pendency. This suit was not disposed of in that haste which might have been expected had there been any collusion. It was commenced in April, 1831, and judgment entered in October, 1832. The case was defended, as the record (which is made an exhibit) shows, and at the October term, 1832, was submitted to the court on a plea of the general issue and of plene administravit, and the court found that the defendant had fully administered the assets that had come to his hands to be administered, except the sum of §68.45. And a judgment was rendered against the defendant for the sum of §279.64, to be levied of assets that might subsequently come to his hands to be administered.

The charge of fraud, with respect to this judgment, is entirely unsustained by the evidence.

The next charge is that the conduct of Greathouse was fraudu ■ lent in not appropriating the $350.66, found in his hands at the settlement in 1831, to the payment of this judgment; but, instead thereof, procuring an order for the sale of the real estate.

*Tbe sum of sixty-eight dollars forty-five cents, found by the court in his hands, under the plea of plene administravit, was so appropriated. But what became of the balance ? The evidence in the case shows. Previous to that settlement, it had been paid over to the widow and guardian of these complainants, to supply their necessities. It was thus paid over by the advice of counsel, but was not- brought into the account, because not paid subsequent to an order of court. But it was allowed to the administrator on his plea of plene administravit. There can be no -doubt that this money went to the support of the widow and heirs. And those heirs now ask this court, as a court of equity, again to charge the administrator with this sum, because the payment made was not strictly regular. We do not feel inclined to comply with this request.

Another thing should be stated in this connection. At the very time Allison commenced this suit, the guardian was present to receive the balance of this money, and it was only withheld in consequence of the commencement of that suit. The charge of fraud in this particular is not proved.

There is much testimony in the case relative to the value of the land, and great effort is made to show that it was appraised at less than its value, and that Greathouse himself prevented its be» ing sold for its true value. But the evidence shows that the appraisers were judicious and honest men ; that the property was •repeatedly offered, openly and publicly, for sale, and not sold, for want of bidders. There is not a particle of proof to show that Greathouse interfered with the appraisers, or to prevent a sale. In fact, down to the time of sale, we discover nothing in the conduct of the defendant, in the whole case, inconsistent with the character of an honest and an upright man.

But it is charged that when the sale was actually made, the purchase was made for the use and benefit of the defendant. If so, it was wrong, and although he may have acquired the legal title, he could only take it in trust for the complainants, to be trans-erred to them when he should be refunded the amount which, he advanced as a consideration for the land, *in the payment of the judgment against the estate. His situation, as administrator, precluded him from the right to make the purchase.

It is positively denied, however, in the answer, that the purchase by Lewis was made for him or his benefit. The decision of this question must depend upon the proof. It is shown by the evidence, that on October 17, 1834, he, as administrator, conveyed the land to Lewis, the purchaser, for the consideration of $225 ; and that on the very next day, Lewis, by deed of release or quitclaim, conveyed the same to him for the consideration of $226. This is a very suspicious circumstance, nor is the suspicion entirely removed by the circumstance that these deeds were made? months after the land was sold. It is further in proof that Lewis was insolvent, and not in a situation to pay for the land. In addition to this, there is evidence'in the case, both of the declarations of Lewis, who is now dead, made before the execution of the deed, and of the defendant himself, which go strongly to sustain the position that Lewis purchased for the defendant.

Taking all the circumstances, and the testimony in connection therewith, we are satisfied that this sale, although ostensibly to Lewis, was in fact to the defendant himself;-and that as against him the complainants are entitled to relief, unless there is something further in the case to exonerate the defendant.

The defendant, in his answer, insists that long after the land came into his hands he offered the complainants to give it up to them, upon being repaid the amount which he had advanced upon it; but of this there is no proof. On the contrary, John Glass, one of the sons of Robert, testifies that in 1836 or 1837, he offered, in behalf of the heirs, to redeem the land, but that the defendant would not permit it to be done. This witness, although one of the heirs of Robert Glass, is not a party in this case. He, as he says, before the commencement of the suit, transferred his interest in the estate to the complainants, undoubtedly to place himself in a position to be a witness. But his testimony

is sufficient to rebut an allegation in the answer, *which is entirely unsustained, and which, even without this contradiction, could have had no effect.

On the part of the defendant, it is claimed that here has been an acquiescence on the part of the complainants for a great length of time, and that is in fact a stale demand, which should not be enforced in a court of equity. The land was sold in 1834, and at that time most of the complainants were within age. The bill was filed in 1848—fourteen years after the sale. Here was a lapse of fourteen years after the sale. But when it is considered that some of the heirs did not arrive at full age until shortly before the filing of the bill, here has not been that lapse of time which would induce the court to withhold relief.

But a question arises as to the relief which shall be granted. The land has been sold, and, for aught we know, to a bona fide purchaser, without notice, and for a good and valuable consideration. That purchaser who, from aught that appears, now holds the legal title, is not before the court. Under these circumstances no decree can be made for the land. But as the complainants can not have this relief, we think they are entitled to compensation ; and in our opinion, the proper rule of compensation will be to charge the defendant with the value of the land at the time of sale, and credit him with the amount by him paid for it, and which amount was appropriated in part satisfaction of a judgment against the estate.

We take the appraisal as evidence of the value, believing that appraisal to have been made by good and judicious men. Had the defendant sold the land, as it then was, at an advanced price, he might with propriety have been charged accordingly.

The land was appraised at $450; it was sold for $225. The difference is $225, for which, with interest from October 18,1834, the complainants may take a decree. ' The defendant will also be charged with the costs. Decree accordingly.  