
    Shepherd and Others v. Fisher and Others.
    An administrator de lonis non filed with the clerk of the proper Court, in vacation, his petition for the sale of real estate of the deceased. Notice to the heirs was issued by the clerk, and at the next term of the Court a sale was ordered, in accordance with the petition. The land was sold, the purchase money paid, and a deed executed to the purchaser by order of Court. Proceedings by the heirs of the intestate to review the order directing a conveyance to be made.
    
      Held, that under the It. S. 1843, the petition of the administrator was properly filed in vacation, and that the clerk had authority to issue notice to tlte heirs without any special order of the Court.
    
      Held, also, that the heirs of the intestate stand in the same position as if the sale had been made by them, and can not set aside the sale on the ground of fraud, or of a trust, without having first restored the purchase money.
    A person entitled to rescind a contract on the ground of fraud, must restore to the other party what has been received, so as to place him in state quo.
    
    APPEAL from the Yanderburg Common Pleas.
   Worden, J.

Hiram, W. Cloud died, leaving certain estate. Letters of administration de bonis non having been granted to James T. Walker, he petitioned the proper Court for an order to sell the land for- the payment of the debts of the deceased, which was granted, and the land sold to John T. Fisher, one of the appellees, who paid the purchase money, and, by order of the Court, received a conveyance therefor.

This complaint was filed by the heirs of Cloud, deceased, for a review of the order directing a conveyance to be made to Fisher, and asking that the sale be set aside on the ground of fraud, &c. .Demurrer to the complaint sustained. The plaintiffs appeal.

The proceedings on the application for an order to sell the land seem to have been entirely regular. The only objection made in this respect is, that the petition was filed in the vacation of the Court, notice to the heirs issued by the clerk, and the sale ordered at the next term. It is claimed, that “ the petition should have been presented to the Court while in session, and notice given to the heirs by the order of the Court; that as it was given by the clerk, it was a mere nullity.” We do not concur in this view. The statute under which the proceedings were had, (R. S. 1843, p. 527,) to be sure, required that the petition should be presented to the Court, and the Court could only make the order while in session, all of which was done here; but it is further provided by the same statute, (§223,) that “No order for such sale of real estate shall he made, until notice óf the petition, and of the time and place of hearing the same, shall have, leen given to the heirs,” &c.

We flunk, under these provisions, the petition was properly filed in vacation, and notice properly issued by the clerk, without any special order of the Court; and that notice having been served in time, the order was properly made at the next term of the Court.

The substance of the ground on which the sale to Fisher is sought to be set aside is, that he made the purchase for the benefit of the heirs of the deceased, and so proclaimed to the persons attending the sale, and who would have bid thereon but for such statements; and, also, that he made false and fraudulent representations in respect to the portion which had been assigned to the widow as her dower in the premises, by which persons were dissuaded from purchasing, and competition prevented. Vide, on this subject, Arnold v. Cord, 16 Ind. 177. The complaint, however, is radically defective, in not showing that the plaintiffs have placed themselves in a position to take advantage of the alleged fraud, or to enforce the alleged trust. A person entitled to rescind a contract, on the ground of fraud, must restore to the other party what has been received, so as to place him in statu quo.

A. L. Robinson, for the appellants.

J. G. Jones and J. E. Blythe, for the appellees.

This sale, to be sure, was made by the administrator, and not by the plaintiffs, but that can make no difference in principle. The land was liable for the debts of the deceased, and was sold for the payment of those debts. The plaintiffs .stand in the same situation as if the sale had been made by them; and before they can set aside the sale to Fisher, they must restore to him the purchase money thus paid. The same may be said in reference to the trust, arising'from the alleged fact that Fisher purchased the land for the benefit of the plaintiffs. Before such trust can be enforced, the money invested by Fisher must be paid and restored to him.

The complaint does not allege that the plaintiffs have offered to rescind the contract, or to restore the purchase money thus invested by Fisher; and as it is defective in this respect, we have not examined whether, had this been done, the other facts charged would have entitled the plaintiffs to a rescission, or other relief.

Per Curiam. — The judgment below is affirmed, with costs.  