
    Elizabeth C. Riddle and Alvah Parker v. Phebe C. Roll and others.
    1. An administrator, ordered by tbe court to sell lands of the estate, procured a party to attend the sale and become the purchaser, and no other person being present or bidding at the sale, sold the land at two-thirds its appraised value to such purchaser, who, immediately upon receiving his deed therefor, with the knowledge and consent of the administrator, conveyed the land to a trustee for the use of the administrator’s wife during her life, with remainder to her children begotten by her husband, and with power in the wife to sell the land: Held, that the transaction, upon its face, and in the absence of clear and satisfactory explanation, is fraudulent and void; and that it is a question of fact for the court to decide whether the evidence furnishes such explanation.
    2. Where the plaintiffs, in an action to set aside fraudulent deeds, whereby they have been divested of their title to land, pray to have the deeds canceled and set aside, and also pray for general relief, it is not an error in the court, on finding the deeds fraudulent, instead of ordering the same to be set aside and canceled, to decree a reconveyance of the land to the plaintiffs upon equitable terms.
    3. When one of several heirs bringing such an action is a minor, within the saving clause of the statute of limitations, the rights of all are saved thereby from the bar of the statute.
    Motion for leave to file a petition in error to reverse the judgment of the Superior Court of Cincinnati.
    The defendants in error are the heirs of Edward C. Roll, ■ deceased. Adam N. Riddle was his administrator, Elizabeth "C. Riddle was the wife of the administrator, and Alvah Parker was the purchaser of certain lands of the estate, sold by the administrator, under an order of court, for payment of debts. The action below was brought by these heirs against the plaintiffs in error, alleging that this sale ••to Parker, and also a sale made immediately thereafter by Parker to Elizabeth C. Riddle, were collusive and fraudulent, and praying to have the deeds of conveyance set -aside, and for general relief.
    
      The land sold was subject to a life estate of the widow of decedent, now Mrs. Langdon, who is the sister of the ■ administrator, and who was, at the time of the sale, and with her husband, Mr. Langdon, is still, in possession. The sale was made on the 6th of September, 1860, on the ■ premises, agreeably to advertisement in the weekly Cincinnati Enquirer, a paper of limited circulation, and read., by but few people in the neighborhood of the land, at that time. The widow and her husband did not see the adver- - tisement, .and had no 'notice of the sale, although they had', both notified the administrator that they desired to be bidders. The sale was made at 3 o’clock p. m. No persons-were present at the sale except the administrator and the • purchaser, Parker, who was the only bidder; and the land, was struck off to him at two-thirds the amount of the appraisement. No bell was rung, flag hoisted, or outcry made, prior to offering the property, and persons residing ■ on the land were not aware of the sale until after it was made. Parker was not a man of much means; he had no ■ previous knowledge of the land, and had no moneywith which to pay the down-payment on the purchase. He was-the client of the administrator, the latter being an attorney at law. Parker knew nothing of the intended sale - until a day or two before it took place, when he was informed thereof by the administrator, who, on the day of the-sale, took him to the place of sale in his buggy. Parker ■ informed the administrator of his inability to advance the-down-payment, before he left home; but the administrator * informed him that he would “ make that all right,” and accordingly, upon the sale being made, took Parker’s note - at ninety days, without interest, for the down-payment.
    Immediately upon the confirmation of this sale by the-court, the administrator made his deed to Parker for the • land, and took Parker’s mortgage thereon to secure the puchase money; and Parker immediately conveyed the-land to a trustee of Elizabeth C. Riddle, the wife of the administrator, for the consideration of one hundred dollars-then paid by her to him in money, and her promise-. And agreement to pay the entire purchase money to the Administrator, and to indemnify Parker against the same. The conveyance to the trustee recited that it was made in ■trust for the use of Elizabeth C. Riddle during her natural life, with remainder to her children begotten by her husband, the administrator, but with power in her to sell the land during her life. These conveyances and papers were a11 prepared and executed at or about the same time, and the administrator participated in their preparation, and gave his verbal guaranty that Mrs. Riddle should pay the purchase money, so as to save Pai’ker harmless. He also •charged himself in his Account current with the amount of the down-payment, as having been paid by Parker at the •date of the sale ; whereas, it was in fact paid by Mrs. Riddle, through her trustee, at the date of the trust deed, and Parker never paid any part of the purchase money.
    Mrs. Riddle had ample means of her own, and this down-payment, as well as the remainder of the purchase money, which she paid long before it became due, was in fact paid from her own means, and not with money of her husband. She testifies that she and her husband had no previous understanding as to this sale; that she knew nothing of it till after it was made ; that her purchase from Parker was <bona fide, and made without ' any concert with her husband ; and that she was ignorant at the time that the deed was made to the trustee in the form in which it appears, and supposed the title was vested absolutely in her.
    Mr. Parker also testifies that his purchase and sale were ■bona fide ; that there was no previous agreement to the effect that the purchase should inure to the benefit of the .administrator, or of his wife or heirs.
    Both Mrs. Riddle and Mr. Parker stand before the court •as witnesses in full credit, in nowise impeached, except in so far as the above-named circumstances may tend to discredit their testimony.
    The administrator died before the action was brought, which was in May, 1873. The trustee of Mrs. Riddle is .also dead
    
      At the time the action was commenced, one of the heirs, "the plaintiff below, was still a minor, and all the others adults. If the action is governed by the limitation clause ■of ten years, or by the clause of four years, then some of the heirs were barred, and some were not. But if it is .governed by the clause limiting actions to twenty-one years, then neither of the heirs was barred.
    Under these circumstances, and upon this testimony, the court below found the sales and conveyances fraudulent, and decreed the reconveyance of the land by Mrs. Riddle to the plaintiff below, upon their refunding to her the ■original purchase money, with interest.
    
      Mallon ‡ Goffey, attorneys for plaintiffs in error:
    Adam Riddle, strictly pursuing the course prescribed by ■statute, offered this property at public ¡sale in open day, on the premises, after legal advertisement, and at the time and place specified in the advertisement. Being dead, we .are deprived of his testimony.
    Alvah Parker honestly bid two-thirds of the appraised value, and had the same struck off to him by the administrator. He is the only one that can speak on this subject, .and his testimony is uncontradicted. Pie firmly and positively denies every charge and allegation made by the plaintiffs, concerning fraud and collusion between him and the administrator, or Mrs. Riddle. He says it was purely ■an investment — a speculation. The fact that Riddle gave him ninety days’ time on the first payment looses the color of blame, and is not unreasonable, when we remember that this was not the first offer to sell, but that the property had been offered many times before, and would not sell.
    The court will not presume fraud. It is a condition that must be positively proven. There was, then, no fraud between Riddle and Parker. Parker was an innocent, bona fide purchaser. In his hands the property was discharged of the trust attaching in the hands of the administrator.
    Mrs. Riddle, with her sole separate means, bargained for and bought this property from Parker. She denies emphatically all the allegations of fraud and collusion, and states that she did not know that Parker was going to buy this land; that she was not afterward informed of it by the administrator ; and that she bought the property with her own means and on her own account. Her testimony is uncontradicted. There was, then, no fraud in fact in the whole transaction, and unless there was constructive' fraud, the defendants in error must fail.
    The administrator had a right to sell; there was a necessity for that sale; and all the proceedings are regular and in strict conformity to the requirements of the law.
    The purchase was not the administrator’s purchase, directly or indirectly, and hence there are no presumptions of law.
    Mrs. Riddle happened to be the wife of the administrator. Was her purchase the purchase of her husband ?. We think not.
    A married woman may act as a feme sole. A woman is-not an outlaw. The wife’s title can only be tainted by acts in concert with her husband, in an attempt to do what the law will not permit. The law does not prohibit her from buying, but prohibits the husband from buying through her. This is the extent of all the cases. If the-wife has a separate estate, she can buy with her own funds, ■ and is a person separate and distinct from her husband. 7 Ohio St. 211; 20 Ohio St. 380; 6 Binn. 429; 12 Ala. 31, 799; 9 Vesey, Jr. 497, 523; 20 Wend. 573.
    Parker’s purchase being bona fide, his vendee is protected. 8 Ohio, 59; 3 Kelly (Ga.), 446; 4 Watts & S. 102, 112; 8 Pick. 329; 9 Paige, 315.
    An administrator is not a trustee in that broad unqualified sense as supposed by counsel for defendants in error. Hill on Trustees, side p. 41. The administrator is a trustee for the heirs only for the balance remaining after the payment of decedent’s debts. Riddle died insolvent. The relation of trusteeship did not, then, exist between the-administrator and the children, the . defendants in error. If Riddle can be regarded as trustee at all, it is only for-the creditors. If Riddle was not the children’s trustee,, there never was a breach of trust of which they could! complain. So that all the authorities defining the liabilities of parties occupying the relation of trustee, etc., have no bearing upon a case like this.
    "We admit the correctness of the rule, that a trustee can not buy, or be interested in, the trust property; but we claim that neither the proposition nor the authorities-cited by counsel for defendants in error upon this point, can in any manner apply to or affect the decision in this case, for the reason that the facts in this case are in nowise similar to those of the cases cited.
    The action is barred by the statute of limitations in law, also by limitation in equity.
    
      Cox, Follett Cochran, and A. W. Waters, attorneys for defendants in error:
    1. An administrator, charged with the duty of selling his decedent’s real estate to pay debts, etc., can not become interested, directly or indirectly in the purchase of said real estate. 4 Kent Com. *438; 1 Story Eq. Jur., secs. 315-324; Davone v. Fanning, 2 Johns. Ch. 252; Brothers v. Brothers, 7 Ired. Eq. 150; Campbell v. Walker, 13 Ves. 601; Huston v. Cassily, 2 Beasley (N. J.), 228; Glass v. Greathouse, 20 Ohio, 503; Barrington v. Alexander, 6 Ohio St. 190; Welsh v. Perkins, 8 Ohio, 52; Armstrong v. Huston, Ib. 552; Mitchell v. Dunlap, 10 Ohio, 117; Wade v. Pettibone, 11 Ohio, 57; Shelden v. Newton, 3 Ohio St. 494; Massie’s Heirs v. Matthews, 12 Ohio, 351; The York Building Co. v. Mackenzie, 8 Tomlins, 42.
    2. A sale of the trust property to a stranger, and a resale within a few days, is presumed to be merely a means of getting the property into the trustee’s hands, and such sale by the trustee to himself, per interpositum personam, is as fraudulent as a direct sale by the trustee to himself, and is voidable at the will of the cestui que trust. Abbott v. American, etc., Co., 33 Barb. 578; Obert v. Obert, 2 Stock. (N. J.) 98; Scott v. Gamble, 1 Ib. 218; Rosenberg’s Appeals, 26 Penn. St. 67; Robbins v. Butler, 24 Ill. 387; Charles v. Dubose, 29 Ala. 367; Page v. Naglee, 6 Cal. 241; Hoitt v. Webb, 36 N. H. 158; Glass v. Greathouse, 20 Ohio, 503; 4 How. 503; Barrington v. Alexander, 6 Ohio St. 190.
    As .to when the ‘ fiduciary relation of an administrator “to the land of his intestate is terminated, see the case last ■above cited.
    3. An administrator will not be permitted to sell the trust property, directly or indirectly, to his own wife, even though she pays for it out of her own separate funds, as he thereby acquires a beneficial interest in the property, .and is as incapable of acting as an impartial judge between her and others as between himself and others. Davone v. Fanning, 2 Johns. Ch. 252; Dundas’ Appeals, 64 Penn. St. 325; Kurze v. Steffens, 47 Ill. 112; Miles v. Wheeler, 43 Ill. 123; 48 Barb. 637; Oberlin Col. v. Fowler, 10 Allen, 545; Bannel v. Stoddard, 2 Am. Law Record, 145, 202; Faucett v. Faucett, 1 Bush (Ky.), 511.
    4. Applying the preceding propositions of law to the facts of this case, and it follows that the conveyances ■complained of are fraudulent and voidable at the will of the cestuis que trust — heirs of said decedent.
    5. In this case, the trustee having died, and no other having been appointed in his stead, the wife having knowledge of the fiduciary character of her husband, with whom ■she was dealing, will be held, by construction of law, a trustee for the cestuis que trust, or heirs of the decedent. 4 Kent Com. *307; 1 Story Eq. Jur., sec. 395, et seq.; 2 Ib., sec. 1257; note to Woollam v. Kean, 2 Lead. Cases in Eq. 715.
    7. Upon payment to Mrs. Riddle of the sum paid by her upon this land,, with interest, she will be decreed to convey .such real estate to the heirs of the decedent, the defendants in error. 1 Story Eq. Jur., sec. 321, et seq.; 2 Ib., sec. 1257-1266; 4 Kent Com. *307; Hill on Trusts, secs. 158, 159; Jeremy Eq. Prin., book 1, chap. 1, sec. 3, et seq.; 1 Fonbl. Eq., book 2, chap. 7, secs. 6, 7; Davone v. Fanning, 2 Johns. Ch. 252; Glass v. Greathouse, 20 Ohio, 503; 6 Ohio St. 190; Dundas’ Appeals, 64 Penn. St. 325; 47 Ill. 112; 43 Ib. 123; 48 Barb. 637; 2 Am. Law Rec. 145, 202.
    8. "When none of the heirs and eestuis que trust are of age at the time the right of action accrues against their trustee and the vendees, and one of the heirs is under age at the time suit is instituted to recover title, the statute of limitations had not begun to run againsf him, and. the rights of all are saved. Angell on Lim., see. 434; Sturges et al. v. Longworth, 1 Ohio St. 544; Massie’s Heirs v. Matthews, 12 Ohio, 351; Meese v. Keefe, 10 Ib. 364; Wilkins v. Phillips, 3 Ib. 50; Kennedy’s Heirs v. Duncan, Hardin, 365; Glass v. Greathouse, 20 Ohio, 503; Vaughn v. Bacon, 3 Shep. (Me.) 455; Farran v. Eastman, 7 Fairf. (Me.) 191; Porter v. Hill, 9 Mass. 34; Creswell v. Altemus, 7 Watts (Penn.), 566.
   Welch, J.

The plaintiffs in error insist, in the first place, that the finding of the court was against the evidence, and that there was error in the refusal of a new trial on that ground. It seems to us otherwise. On its face, and unexplained by clear and satisfactory evidence, the transaction was a mere device, under the form of a sale to Parker, and a sale by him to Mrs. Riddle, to vest this property in Mrs. Riddle, her husband, and his children, at the lowest price for which it could legally be obtained. The only explanation offered, to relieve the transaction from the undeniable badges of fraud apparent upon its face, is the testimony of Mrs. Riddle and Mr. Parker, to the effect that they .acted bona fide, and without preconcert with the administrator. The court below had these witnesses before them, and we are quite .unable, especially in .the absence of these and the other witnesses, to say that their explanation was sufficient to relieve the case from these pregnant indicia of fraud. It may be that the parties did not intend to practice what they considered a fraud. But we are entirely unable to say that the court was wrong in holding that they meant to practice what the law calls a fraud — to do by indirection that which the law forbids, under the form of doing' that which the law permits. In so-holding, the court merely decided a question of fact, and’ we are unable to say, from the record, that the decision was erroneous.

It is also insisted that the court erred in rendering a decree not prayed for in the petition. The substance of the-prayer of the petition was that the title should be restored to-the heirs. The specific prayer was that this should be-done by cancellation of the deeds made by the administrator and by Parker. The decree effects the same result by a re-conveyance. Besides, the petition contained also a prayer for general relief, under which it is quite plain to us that the court might properly make the decree in question. And surely the plaintiffs in error are not injured by that part of the decree which requires the heirs to refund to-Mrs. Riddle that part of her money which went into the "hands of the administrator for the benefit of creditors of the estate. "We think this was but justice to her — the fraud* at least on her part, being rather constructive than actual, and her money having thus relieved the estate to that amount from the liens of creditors for the benefit of the-heirs.

Counsel also claim that the right of action was barred by the statute of limitations. Without undertaking to decide the question argued by counsel, as to which of the clauses or provisions of the statute governs such a case, it is sufficient to say that one of the heirs is admitted to have been-a minor when the action was commenced, and that, in a-case like this, the saving of the rights of one is necessarily the saving of the rights of all.

Motion overruled.

McIlvaine, White, and Res, JJ., concurring. Day, C. J.y dissented.-  