
    *Frederick Stiver, Jr., surviving Administrator of Caspar Stiver, Sen., deceased, v. Heirs of Caspar Stiver, Jr., and Holdrye and John Stiver, Administrators of Caspar Stiver, Jr.
    A 101 in equity may be an appropriate remedy for settling accounts between executors and administrators of different estates.
    An executor or administrator is accountable for everything he receives in which the decedent had an interest, notwithstanding any contrivance by which an attempt may be made to become receiver, in a different character.
    A purchaser of the legal title to lands having notice that such legal title was a trust for a decedent, takes the land subject to the trust.
    This is a suit in chancery, reserved in the county of Montgomery.
    The facts appearing fronrthe bill,'and the answer of John Stiver, are as follows: In July, 1821, the execution of the will of Caspar Stiver, deceased, was duly committed to the plaintiff and Caspar Stiver, jr. Among the debts returned by the executors as due to the estate, is the amount of a note given by Caspar Stiver, jr., to C. Stiver, sen., for $943, which note, with certain other assets, were held by C. Stiver, jr., in his character as executor. In 1825, C. Stiver, jr., died, without-completing the settlement of O. Stiver, sen.’s, estate; John Stiver is his administrator, and both estates are yet unsettled.
    Before the death of Caspar Stiver, jr., he had conveyed certain lands to Susanna Swartzley, by a deed, absolute on its face, but, in fact, subject to redemption. After his death, in 1825, an agreement was made between John Stiver, his administrator, and his heirs, to whom the equity descended, that John Stiver might sell, the interest of the heirs. Accordingly, in 1825, he contracted to sell if to Holdrye for $1,300, and Mrs. Swartzley conveyed it to him under this arrangement, receiving from him her debt of $590, which was charged upon it, and the remainder was paid to John Stiver.
    The objects of the bill are, to take an account between the surviving and the deceased executors of Caspar Stiver, sen., to enforce the due, settlement and distribution of the estate of Caspar Stiver, jr., and to enforce the appropriation of the fruits of the sale to Hold-rye to the debts of the last decedent.
    
      The answer of Holdrye sets up a purchaser for a valuable consideration, without notice.
    Crane and Stoddard, for plaintiff.
    Odlin and Schenk, for Holdrye, present the following points:
    1. There is no sufficient proof of C. Stiver, jr.’s, indebtedness.
    2. Creditors s*hould recover judgment at law before going to chancery.
    *3. Personalty must be exhausted before a recurrence to the realty is permitted.
    4. It does not sufficiently appear but that lands remain in the hands of heirs, which should be first subjected to debts. Wright, 261; 6 Ohio, 227.
    5. But aside from all arguments having reference to the formality or informality of the pleadings, the defendant, Holdrye, defends his right and possession of the land upon a broad ground of equity. He purchased from the administrator, by and with the consent and advice of the heirs, who have since ratified and confirmed his title; and the purchase money, or so much of it as was not applied directly to the debts of the intestate, went into the hands of the administrator; that money was, and is, therefore, chargeable in the hands of the administrator as assets of the estate, and if he has squandered it or become insolvent, then the creditor must look to the securities upon his bond. It is not pretended that Holdrye paid for the land a full and adequate consideration. Who are affected by the informal sale ? Not the heirs — it was made with their approbation, and all of them have since confirmed it. Not the creditors, for if the property had been sold by order of court, on petition of the administrator, there is no proof that it would likely have brought more, nor, indeed, any probability that it would have produced so much, to the estate as it did when disposed of to Hold-rye at private sale. By the statute, the heirs are to be made parties defendant to an administrator’s petition, but not the creditors. This is to prevent a sacrifice of the real estate, it is true, as well as to divest them of their legal title, but the creditor is not entitled to a day in court; and it will be found that in those cases where sales have been held void, for want of sufficient order to sell, such decree of avoidance has been for the benefit, and on complaint of heirs. The case of Piatt v. St. Clair’s Heirs is no exception to this; for, in that case, the court held the legal title to be still in the heirs, the sale by the administrator to the trustee being fraudnlent and void, and the purchase of the land by the heir at the tax sale “not changing the estate as to creditors.” 6 Ohio, 227. It is not pretended that every sale made by an administrator, with consent of the heirs, must conclude the rights of creditors. But it is contended that every such sale is prima facie sufficient, even a,s to creditors, and that they have no right to look after the land, but must follow the money in the hands of the administrator. There might be collusion ^between the heirs, administrator, and purchaser, in consequence of which the land might have been sold for less than it was worth; but it would be necessary tó aver and show such collusion and inadequacy of price, in order that the creditor should still maintain his lien. Suppose the case of a small insolvent estate, where it shall become necessary to resort to the land for the payment of debts, and where the expense of filing a petition against the heirs, and procuring an order to soil, may bear a large proportion to the value of the land to be sold; shall not the heirs and administrator be permitted to save this expense to the' estate and to the creditors, by consenting mutually to an advantageous priyate sale ? It would be a hard rule that wouid drive them into court under such circumstances; and, at least, we think that it should be required of the creditor, who afterward objects, to make out a case of collusion or unfairness in i¿he sale, before he shall be allowed to'follow with his debt the land in the possession, of the purchaser.
    It can not be objected, that the money'received thus by the administrator is not assets in his hand, for the faithful application and disbursement of which his securities will not be held responsible. On the contrary, it is maintained, -that w.hen the heirs, being adults, have notice, and consent to the sale, and afterward, in fact, ratify it, everything haS been done that would have been effected by making them parties to a formal statutory proceeding by petition, and it would be making a very refined distinction indeed, to claim that the proceeds, actually received by the administrator, do not as much, in the one case as in the other, go into his hands as administrator, to be accounted for in that capacity. It might be contended, on the same principle, -that whenever an administrator compromises a claim of the estate which he represents, or in any matter exercises a discretion not expressly pointed out among his duties by the statute, he is acting in an individual, not in an official capacity, and the securities on his bond are discharged from liability. More latitude than this must be allowedt a more liberal and equitable construction of*the powers of a legal representative, or their ability to benefit the interests which they represented would be greatly and unnecessarily abridged.
    We find no cases precisely resembling this, but refer to two or three as to the exercise of power by an administrator.
    Where an administrator had released an equity of redemption, *and the heirs released, the court quieted the title of the purchaser. 5 Ohio. 510.
    
      If an administrator consent to the sale by heirs of the real estate of the intestate, he divests himself of any right which he might otherwise have had under the statute, to make such estate assets, in case of a deficiency of the personal property. 3 Blaekf. 331.
    6. The' purchase of Holdrye was of the legal title without notice.
   Judge Lane

delivered the opinion of the court:

That a bill for an account may be sustained between executors, or between a surviving executor and the representative of a deceased executor, is a plain consequence of their relation as joint tenants. The jurisdiction of a court of chancery, for the settlement of decedents’ estates, has.been sustained, at the instance of creditors, before judgment, because it is a trust. 6 Ohio, 112; 6 Johns. Ch. 631. Eor these objects, therefore, the plaintiff is entitled to a reference to the master.

Some of the other points argued, do not properly arise in this stage of the cause. Proof of indebtedness must be made to the master; all questions relating to the order of' marshaling assets will be presented by his report. As other matters have been argued, and must be determined in the progress of the case, it is convenient to settle them now.

The administrator of C. Stiver, jr., not contesting his liability to account with the creditors of his decedent tor all assets in his hands, insists, that the money arising from the sale of the land being produced from the realty, by the aid of those holding the legal title, without the license or authority from the court of probate, was not received by him in his representative character, but as the agent of the owners, and that, consequently, it can not be regarded as assets; but the law makes it his duty to convert the realty into the means of payment of debts, and no collusion will be permitted between him and the heirs, or between him and the trustee of the legal title, by which it can be withdrawn from the fund. It may justly be presumed, that the parties intended nothing more than to raise money for the payment of the debts by sale of the land, without the expense or delay of judicial proceedings. In the agreement filed, the parties making it are described to be the heirs of Caspar Stiver, jr., and John Stiver, his administrator. If creditors, for whose benefit such a *sale ought to have been made, choose to affirm it, it is too late for John Stiver to evade his responsibilities by disclaiming the character in which he acted.

Holdrye claims protection, as a purchaser, for a valuable consideration, without notice. The evidence does notsustain his claim. He knew of the existence of the bond for reconveyance from Swartzley before his purchase, and he dealt with John Stiver, and paid him his part of the money as administrator, entitled to the fruits of the sale.

Holdrye further claims, that the payments made by him to John Stiver, being in fulfillment of a contract, with which Stiver is chargeable as assets, should avail him as valid payments, and discharge the land ifom the lien of the decedent’s'debts.

The purchaser of lands of a decedent at a judicial sale of an administrator, holds it discharged of liens for debts, 6 Ohio, pt. 1, p. 70; because the administrator, to secure those for whom he acts, gives a bond, whose amount is fixed with reference to the amount of assets he is likely to receive ; and the court, which confers the power to sell, may require adequate security; the protection of such a purchaser is the steady policy of the law. But heirs, holding land of their ancestor, hold it subject to his debts; a purchaser from them takes the incumbrance with the title, 3 Mass. 540; 4 Ib. 354; 5 Ib. 242; 6 Ib. 151; 6 Ohio, 237; and no circuity of conveyance, no collusion or management among the holders of the interests, will free the-land from this burden, or clothe such a conveyance with the immunities attending a sale, made under the sanction of the court.

Since, then, the land was acquired by Holdrye with a knowledge of the interest of the decedent, he will hold it chargeable with his debts, if it be nepessary to pay them. It does not follow, that the land must be resold; it is one of the advantages of a recurrence to equity, that its decrees may be modified according to ciroumstances. If the land produced its full value, the holder may be holden to the application of the purchase money; but the court will lend a facile ear to suggestions of ill faith, collusion, and fraud, and may direct a resale in all cases, at the instance of creditors, for a higher price.

. The first recurrence, however, of creditors, of an estate, is against "the personal representative. If satisfaction can be had there, it is unnecessary to reach over beyond them. The case is referred to .a master, under the usual order, to take an account, and all further questions are reserved until the hearing.  