
    Robson’s Guardian, Ad Litem v. Robson.
    (Decided March. 26, 1926.)
    Appeal from Campbell Circuit Court.
    1. Guardian and Ward—Infant’s Guardian Must Execute Bond in Sale of Infant’s Land Before Sale is Ordered or Sale is Void (Civil Code of Practice, Sections 491, 493, 496, 497, 498, Subdivisions 1, 2).— Under Civil Code of Practice, section 493, subject to provisions of sections 491, 496, 497, 498, subdivisions 1, 2, bond by guardian of infant in sale of infant’s land must be executed before sale is; ordered or sale is void.
    2. Guardian and Ward—Guardian Need Not Execute Bond Before Sale of Property Owned Jointly by Guardian and Infant Son, is Ordered, Since Infant’s Share is Secured by Lien on Property, and on Execution of Bond Lien is Dissolved (Civil Code of Practice, Sections 493, 497, and Section 490, Subdivision 3, as Amended by Acts 1916, c. 119).—Bond, required by Civil Code of Practice, section 493, need not be given before sale 'by widow, as guardian of infant son, to divide proceeds of property left her by deceased husband between herself and son under section 490, subdivision 3, as amended by Acts 1916, c. 119, is ordered, since, by section 497, infant’s share of . proceeds remains a lien on property until he becomes of age or guardian executes bond, required by section 493, and on execution of bond lien securing infant’s share is dissolved.
    3. Guardian and Ward—Sale of Infant’s Property to Guardian May be Avoided by Infant at His Election, and Guardian Thereupon Holds Land as Trustee for Infant.—Purchase by guardian of property of ward at judicial sale in proceedings brought by guardian for such purpose, though not making sale void if confirmed by court, makes it voidable at election of infant, and guardian thereupon holds property as trustee for infant.
    4. Guardian and Ward—Guardian of Infant Son Cannot Purchase Property, Left by Deceased Husband, Free from Son’s Right to Avoid Sale, though Guardian has Dower Interest in Property.—Mother as guardian of infant son, though having dower interest in property left by deceased husband, cannot purchase property at judicial sale in proceedings brought for such purpose, free from infant’s right to avoid sale at his election.
    5. Guardian and Ward.—Guardian is as much a fiduciary as an executor or administrator.
    EDWARD HAWKINS for appellant.
    HORACE W. ROOT for appellee.
   Opinion of the Court by

Judge Dietzman

Reversing.

This is an action under the declaratory judgment act. On the 8th day of September, 1919, Greorge H. Robson died intestate, the owner of several pieces of real estate situated in 'Campbell county, Kentucky, and leaving surviving him as his only heirs at law his widow, Clara Robson, appellee herein, and their son, Greorge Haddon Robson, an infant of seven years of age, who by his guardian ad litem is the appellant herein. Thereafter tbe appellee was appointed and qualified as tbe statutory guardian of this infant son. She then brought .an action in Campbell circuit court under subsection 3 section 490 of the 'Civil Code to obtain a sale of the real estate left by her late husband and a division of the proceeds of such sale between herself and son according to their respective interests in the realty. On October 10th, 1925, and before the judgment was entered in that action, the appellee undertook to execute the bond required by section 493 of the Civil Code, but through oversight she had only one surety on it instead of two as the Code requires. On October 14, 1925, the judgment ordering the sale of the property was entered and later the property was sold under that judgment, the appellee becoming the purchaser. No exceptions being filed to the .sale, it was, in due course of time, confirmed and deeds to appellee were executed by the master commissioner. The appellee then discovered the defect in the bond executed on October 10,1925, whereupon the court permitted her to execute a new bond with the two sureties required by the Code, his order reciting: ‘ ‘ Said bond is now examined and approved by the court and treated as signed and executed as of said date, to-wit, the 10th day of October, 1925, and is ordered filed. ’ ’

Thereafter appellee undertook to mortgage some of the property she had bought in this judicial sale and the Question arose as to the validity'of her title, the proposed mortgagee contending that the sale under which she bought was void because the bond required by section 493 of the Civil Code had not been executed before the Judgment, in the manner required by that section of the Code, and further that she took no valid title under the sale, conceding the judgment ordering it was valid, because as guardian of her infant son she could not purchase the property of her ward in a sale brought about by her suit for that purpose. '

The appellee then brought this action against her infant son seeking a declaration of their respective rights with reference to the objections raised by the proposed mortgagee. The lower court adjudged that section 497 of the Civil Code controlled as to the time of the execution of the bond here in question; that the failure to execute the bond prior to the judgment ordering the sale did not invalidate it; and that, by its execution after the sale, the lien on the land to secure the share of the infant .as defined in section 497 of the Code was dissolved. The court further adjudged that the appellee had a right to purchase the property at the judicial sale and that she acquired a valid title to the same free from any claim of her infant ward. From this judgment the guardian ad litem of the infant son prosecutes this appeal for him.

Section 493 of the Civil Code provides that subject to the provisions of sections 491, 496, 497 and subsections 1 and 2 of section 498 of the Civil Code, the bond therein required must in all cases be executed before the sale is ordered, and we have held that unless this be done the sale will be void. Cornell v. Cornell, 131 Ky. 650, 115 S. W. 795. Section 497, to the provisions of which section 493 is subject, provides that in the action mentioned in subsection 2 of section 490, the share of the infant shall not be paid by the purchaser but shall remain a lien on the land until the infant comes of age or the guardian executes the bond required by section 493, and we have held that in a sale under this subsection 2 of section 490 it is not necessary that the bond required by section 493 be executed before the sale is ordered. Hatterich v. Bruce, 151 Ky. 12, 151 S. W. 31. It will be noted, however, that section 497 does not in terms refer to subsection 3 of section 490. Subsection 3 of section 490 is chapter 119 of the Acts of 1916, which is entitled:

“An Act to amend section 490 of the Civil Code of Practice concerning the sale of real property and to authorize the confirmation of certain sales heretofore made.”

In the recent case of Carpenter v. Wilhoite’s Admx., decided Feb. 16, 1926, 213 Ky. 75, 280 S. W. 481, involving* the same question here presented, we said:

“While section 497 of the 'Code only includes sales made under subsection 2 of section 490,. and this sale was made under subsection 3, as printed in the Code, still subsection 3 is, in substance, only an amendment to subsection 2. It authorizes the widow here to bring the suit named in subsection 2, which she could not have done under the original act; but the sale, when made on the petition of the widow, is, in substance, a sale made under subsection 2 for the division of the proceeds. This is the necessary meaning" of the statute taken as a whole. ’ ’

We there held that a compliance with section 497 of the Code is all that is required in a sale under subsection 3 of section 490. It therefore follows that as this was a sale under subsection 3 of section 490 it was not necessary to the validity of the sale that the bond required by section 493 be executed before the sale was ordered, and as it has since been executed the lien to secure the infant’s share mentioned in section 497 has thereby been dissolved.' This far the judgment of the lower court is correct.

On the other branch of the case, it is well settled that, if a guardian purchases the property of his ward at a judicial sale in proceedings brought by him for such purpose, although the sale is not void if confirmed by the court, it is voidable at the election of the infant and if avoided by him the guardian holds the land as trustee for him. See Harris v. Hopkins, 166 Ky. 147, 179 S. W. 14; Morrison v. Garrott, 15 Ky. L. R. 305, 22 S. W. 320 ; Schlickman v. Dusing, 180 Ky. 506, 203 S. W. 295. While conceding this rule, the appellee seeks to avoid its effect on the ground that as she had an individual interest in this property she had the right in order to protect that interest to bid at the sale, and, if successful, to take a valid, title free from any claims of her ward. Exactly the same argument was made in the analogous case of executor who purchased at a judicial sale in proceedings brought by him for such purpose, the lands of his decedent in which he had an individual interest. Conrad v. Conrad, 152 Ky. 422, 153 S. W. 740. In refusing to follow that argument, we said:

“Overton L. Conrad, the executor, was one of the purchasers at the sale. The rule is well settled that a personal representative, who buys at a sale, holds the property as trustee for those whom he represents. Overton L. Conrad, as executor, was one of the plaintiffs in the action, and the sale was made upon his petition. The rule that a trustee, who buys at his own sale, holds the property in trust for the beneficiaries of the trust has been often announced by this court. But it is insisted that, as Overton L. Conrad had a life estate in one-half of the land, he had a right to buy at the sale to protect his personal interest; and that therefore the rule referred to should not apply. We cannot accept this view. It often happens that one of the heirs or devisees is the personal representative. If the exception suggested was sustained, it would destroy the rule practically; for then the personal representative might always bid at tbe sale and obtain a good title, if be bad any interest in tbe property. In not a few of tbe cases wbicb bave been decided, and in wbicb tbe rule was applied, tbe person wbo was tbe personal representative was an beir or devisee; and tbe reason for the rule as to all tbe property outside of bis interest is tbe same in one case as tbe other. .
. . While there are cases sustaining tbe view suggested by counsel (18 Cyc. 771) they are not in keeping with tbe principles on wbicb the rule rests. If tbe executor would purchase at tbe sale, be should first be released from his trust, so that he will not occupy a dual position.”

Tbe principle laid down in this Conrad case is conclusive of tbe second question here raised. A guardian is as much a fiduciary as an executor or administrator. If tbe latter may not purchase tbe lands of a decedent in wbicb be has an individual interest at a judicial sale, so as to take a valid title free from any claim of tbe beneficiaries of such decedent in such realty, neither should tbe former. It results, therefore, that tbe appellee, because she bad a dower interest in tbe property here in question, was not privileged, being tbe guardian of her infant son who held tbe rest of tbe interest in that property, to purchase that realty at a judicial sale in proceedings brought by her for that purpose, so as to take a title free from any claim of the infant. She comes within tbe general rule, and although tbe sale to her is not void, it is subject to being avoided at tbe election of tbe infant. In so far as tbe judgment of tbe lower court held otherwise, it is erroneous and for that reason is reversed with instructions to enter a judgment in conformity to this opinion.  