
    Doe on the Demise of Harkrider and Others v. Harvey.
    An administrator’s sale of real estate for the payment of debts, made by an order of the Probate Court, is not void from the circumstance that the record does not disclose that notice of the application to sell was given to the heirs.
    Notice in that case will be presumed.
    A sale of land by an administrator for the payment of debts, will not be set aside, at law, because the administrator himself became the purchaser.
    
      Friday, November 28.
    ERROR to the Henry Circuit Court.
   Perkins, J.

Ejectment by the heirs of Philip Harkrider against Benjamin Harvey, for a tract of land in Henry county. Judgment below for the defendant.

Harvey derived title through, mesne conveyances from an administrator’s sale made by order of the Probate Court of said Henry county, at its May term, 1833. The plaintiff insists that the Com’t, on the trial of this cause, should have declared that sale void: 1. Because it did not affirmatively appear that notice of the application for the sale was given to the heirs; 2. Because it did appear that the administrator upon said Harkrider’s estate, was the purchaser at said administrator’s sale. These are the only defects claimed to exist.

As to the first point, it is shown that a report was made to the Probate Court, stating the insufficiency of personal assets to pay the debts; that a petition by the administrator for the sale of the land was filed, and an order made thereon for the issuing of process, and for the publication in the proper newspaper of notice to the heirs, and that the cause was thereupon continued to the next term of the Court. At a subsequent term, it appears, an order of sale was made. It was proved that notice of the sale was given', and that the sale was regularly made. The report of the sale to the Court, the confirmation thereof, the order for a deed, the deed and the approval of it by the Court, and the accounting for the proceeds of the sale, all regularly appear of record. Such being the facts, the point under consideration is settled by previous decisions of this Court. In Horner v. Doe, May term, 1848 , it was decided that where the record of a domestic Court of general jurisdiction was silent on the subject, and disclosed nothing inconsistent with the fact of notice having been given, notice, in the absence of proof to the contrary, would be presumed; and in Doe v. Smith, November term, 1849 , it was determined that the Probate Courts of this state were domestic Courts of general jurisdiction.

Upon the second point. An administrator is regarded as a trustee ; and it has often been decided by this Court, that a purchase by a trustee, at his own sale, of the property of his cestui que trust, is so far void, in equity, that the latter may, in general, have it set aside without other cause shown than the single fact that the purchase was made by his trustee; the purchaser being allowed, on the vacation of his purchase, his payments, interest, and improvements. Brackenridge v. Holland, 2 Blackf. 377.—Gage v. Pike, Smith’s R. 145 . —Shaw v. Swift, id. 398 . Such is the law. Hill on Trustees, 535. In Brackenridge v. Holland, supra, it is said: “A trustee, no matter how or from whom he derives his authority, cannot purchase the trust estate so as to make a profit to himself. There is no general rule that he shall not be a purchaser, but if he is, his purchase is for the benefit of the cestui que trust.” An administrator, then, on his purchase, at his own sale, of the real estate of his intestate, holds it as a trustee of the heirs. A trustee has the legal title, and that is sufficient for the maintenance of possession. Of that possession, he cannot be ousted by an action of ejectment, unless his purchase can be set aside in that suit. We have found no case where such a purchase has been held void at law, and there seem to be weighty reasons why it should be set aside only in equity. All the cases on the subject hold that the cestui que trust, after a re-exposure of the property to sale, and a failure to obtain a better or an equal bid, has a right to hold the trustee to his purchase. All of them, also, hold that if the purchase is finally vacated, the trustee is entitled to be reimbursed his money paid, interest, and improvements. In Michaud v. Girod, 4 How. U. S., it was so decided. That was a case in chancery. For these he should hold a lien. These are matters for equitable adjustment, and the lien can only be enforced in chancery. They should, therefore, to save litigation, as well as for other causes, be settled in the proceeding in which the purchase is to be set aside, or affirmed, as the case may be. If the cestui que trust were permitted to avoid the purchase, at law, it would deprive him of the option of re-affirming it on his failure to make a better bargain elsewhere, and might jeopard the security of the trustee. In Jackson v. Van Dalfsen, 5 John. R. 43, it was held that such a purchase could not be declared void at law, where the objection was raised by a third person; and in Davoue v. Fanning, 2 John. Ch. R. 252, chancellor Kent seems to regard the law as being the same in all cases. He says: “The Supreme Court, in Jackson v. Van Dalfsen, supra, admit it to be a well settled rule in equity, that a trustee or agent to sell, shall not, himself, become the purchaser, and they very properly refer the remedy of the cestui que trust, in such cases, to the cognizance of chancery.”

C. H. Test and C. C. Nave, for the plaintiff.

J. S. Newman, for the defendant.

Per Curiam.

The judgment is affirmed with costs. 
      
       1 Carter’s Ind. R. 130.
     
      
       Id. 451.
     
      
      
        Sturdevant v. Pike, id. 277.
     
      
       Id. 565.
     