
    James Mitchell v. William Dunlap and others; William Dunlap v. James Mitchell and others.
    Although one executor can not purcháse at a sale by his co-executors, yet such a sale may be executed with the subsequent assent and ratification of the heirs.
    Femes covert can not hind their interest in lands except in the one form prescribed by law.
    These are cross suits between the same parties from the county of Muskingum.
    In-June, 1837, Thomas Mitchell, father of James Mitchell, settled his estate among his children and widow.
    He devised his lands to four of his sons, charged with certain legacies to his daughters, and his remaining son, and made certain provisions for the maintenance of his widow. He made William Dunlap, the defendant in the original bill, together with James Wilson and J. Gilbert, his executors.
    On July 29, 1837, he made a codicil altering, in some respects, the arrangement of his will, and he “leaves the sole use and management of his farm, etc., to my executors and -widow, leaving it to their option to sell said farm or not, if not tended to, by my sons, as it ought to be.”
    After the decease of Thomas Mitchell, the executors proved the will. In the execution -of their trust, it being necessary to sell lands to pay debts, it was doubted by them if the will conferred upon them the power of sale. Upon the advice of professional counsel, an agreement was entered into, in writing, between the widow, the executors, and eight of the nine children (the ninth taking no interest in the land under the will), by which the executors were authorized to sell the land, to pay the widow 118] $500, in lieu of her dower *and distributive share, out of the first avails, and divide the remainder among the children. , On the day of sale, Dunlap offered a larger sum than was offered by any other individual, and the other acting executor, under the advice and assent of the widow and of most of the children, consented that he should become the purchaser at its full value of $2,100, of which $500 were to be paid to the widow, and the residue in three annual payments. Before the purchase was completed and securities given, the acting executor was about to rescind the sale, fearing that the persons interested might become dissatisfied because one of the executors was the purchaser. Upon which the widow, three of the sons, and two of the daughters, with their husbands, made another writing, in which they refer to the authority to sell, and the sale, and the terms of credit, and certify they were and remain perfectly satisfied with it. Upon the execution of this writing, Gilbert consented to admit the sale, and Dunlap paid the $500, and is willing to comply with the remaining conditions, and has taken possession of the land.
    The original bill is brought to set aside this sale; the cross bill is to affirm the sale, and acquire a valid title under it.
    Buell & Foster, for Mitchell and others:
    It is now a well-settled rule, that if a trustee, acting for others, sells an estate and becomes himself interested in the purchase, the cestui que trust is entitled to come’ into equity, as of course, and set aside the purchase and have the property re-exposed to sale. Davoue v. Fanning, 2 Johns. Ch. 252; Lazarus v. Bryson, 3 Binn. 54; Moody v. Vandyke, 4 Binn. 31; 1 Story’s Eq. 318.
    The same principle, to its full extent, has been recognized by this court, in Armstrong v. Huston, 8 Ohio, 552.
    The only question then is, whether the sale to Dunlap has been confirmed by any act of the parties in interest.
    The instrument set up as a ratification can at most affect only the rights of those who signed it, and we claim that inasmuch as the instrument was procured by Dunlap himself, a *court [119 of equity will not allow him to use it, as against his cestui que trusts. The rule is, that a trustee will not be permitted to deal with his cestui que trust, until a bona fide dissolution of the trust relation. Ex parte Lacey, 6 Ves. 625; Campbell v. Walker, 13 Ves. 600; Coles v. Trecothick, 9 Ves. 246; Monroe v. Allaine, 2 Caine’s Cas. 182; Ex parte Bennett, 10 Ves. 393; Church v. Marine Ins. Co., 1 Mason, 244; Lovell v. Briggs, 2 N. H. 220.
    Agents and executors are regarded as trustees within the meaning of this rule. Fay v. Hunt, 5 Pick. 398 ; Harrington v. Brown, 5 Pick. 519 ; 4 Kent Com. 437.
    Harper & Stillwell, for Dunlap :
    The general rule recognized in the cases referred to on the other side is not disputed, though there are contrary authorities. Anderson v. Fox, 2 Hen. & Munf. 215; McKey v. Young, 4 Hen. & Munf. 430; Drayton v. Drayton, 1 Des. 567. But the rule has no application to this case. Here is a fair and equitable family arrangement, entered into for a laudable purpose, understood and assented to by all the parties interested, and executed by several of the heirs, one of whom is the complainant. The court, in sustaining such a purchase, will violate none of the rules in the cases referred to. The complainant, with a full knowledge of all the circumstances, executed an instrument confirming and ratifying the purchase; and no fraud or mistake being alleged, equity will not, at his instance, set aside the sale. In Lazarus v. Bryson, 3 Binn. 54, cited and approved by the chancellor in Davoue v. Fanning, 2 Johns. Ch. 252, it is held, that if a sheriff become a purchaser with the consent of the debtor, even his heirs can not impeach the sale.
    Much less can he be permitted to call in question a sale, who not only had a full knowledge of it, but, alter it was made, executed an instrument saying, that “ he had been, and continued to be satisfied ” therewith. We maintain, then, that there is no just interpretation of any general rule, nor any decision cited, or to be 120] found in any of the books, that will sanction % decree, setting aside the purchase made by the defendant, Dunlap.
   Lane, C. J.

The bill by James Mitchell denies that Dunlap possessed the capacity to acquire a title, by any sale from the executors, and asserts that his signature to the two papers was procured by fraud. The answer repels the charge of fraud, and asserts that the estate produced its full value, and more than if the sale had been made to any other person. The imputation of fraud remains without proof, and the acquiescence of the heirs, and their omitting to resist the claim of Dunlap, lead us to infer that the sale was, in fact, honest and fair.

No principle is better established than that the person intrusted with the authority to sell the land of another, can not himself become the purchaser. This principle of exclusion is familiar with the profession, and has been pushed to a rigorous extent in our own courts. 8 Ohio, 554. In all such cases the owner may annul- the sale, on the repayment of the money advanced. If) then, the case presented nothing more than a purchase by Dunlap, of land, which he, as an executor, undertook to sell, either by the will or his other authority, the right of James Mitchell to set aside these proceedings would be recognized without difficulty.

But the question here is, not whether the sale was originally good, hut whether it may not be ratified by those whose interests are conveyed. After the sale had been made to Dunlap, the facts and conditions all known, certain of the heirs (among whom was James Mitchell,) by a written document, made for the purpose of leading the parties to complete it, testified their acquiescence, and, in consequence of this, the sale was completed, possession taken, and a large part of the purchase money paid. After this testimonial of assent, this decisive act of the owners, designed to lead Dunlap into the completion of the contract, and the payment of money, it is too late for thorn, with any show of good faith, to deny its binding, confirming efficacy. The claim, then, of James Mitchell, the ^plaintiff, to disown this ratification of the pro- [121 ceedings of Dunlap, can not be admitted, and the bill to set aside the sale must be dismissed, with costs.

The bill of Dunlap to affirm the sale, and acquire the title, does not stand upon the same grounds. His right depends on the ratification of those in interest; and is perfect as to James Mitchell, and is perfect also as to all who subscribed the second document, and are competent to act upon their rights. But a part of these signatures are those of married women, incompetent to bind their lands, except in one prescribed form. The plaintiff in the cross bill may take his decree, if he wishes it, against the widow, and against such of the children who signed that instrument as are competent to contract, and against the husbánd of the daughters, to the extent of their estates.  