
    Mountcastle, Guardian, v. Mills.
    Administrator or Guardian. Responsibility. An administrator or guardian who, from improper motives, procures an advantageous sale of the property of his distributees or wards, to be set aside for technical reasons avoiding it, against the will of the purchaser, and procures resale at a loss, held to make up the loss.
    FROM HAWKINS.
    Appeal from Chancery Court at Rogersville. S. J. W. Lucky, Ch.
    Shields, for complainant, said:
    This is a voluminous record, but when examined it will be found that the material facts are few. The case is one of some novelty, and presents a criminal and reckless disregard of the rights and interests of a ward, on the part of a faithless guardian, rarely equaled in the history of maladministration and' bad faith in fiduciary officers. From the pleadings and evidence the following facts/ uncontroverted and admitted by all parties, are to be gathered:
    Many years ago John Mills, Sr., died in Hancock county, intestate, seized in fee of the land out of which this controversy arose, and leaving eleven children, his heirs at law. In the course of time, by the deaths of some of these children, and by sales made by others of them, the entire tract became the property of two of the children and heirs at law, to-wit., Ambrose Mills and Hiram Mills. Ambrose Mills owned nine and one-fourth shares, and Hiram Mills one and three-fourths shares.
    Ambrose Mills, who was a merchant and a farmer, resided upon the land, and erected thereon a dwelling and store-house, and other valuable improvements. The heirs from whom he purchased shares, previous to their •conveyances to him, had also erected valuable improvements on the land.
    While Ambrose and Hiram were thus tenants in common, in the month of January, 1852, Ambrose died intestate. He had been twice married, and left a child by each wife, both daughters of tender years, and both of whom are the complainants in the amended bill, which amended bill presents really the only material questions in the cause. It was filed at first by one only of the children, but afterward it was agreed and ordered that both should have the benefit of any relief that might be had' in pursuance of its prayer. The names of these children are Susan Jane Mills and Ellen Jane Mills. Hiram Mills was appointed, by the County Court of Hancock county, administrator of the estate of Ambrose Mills. Perry Mills, another brother of Ambrose, was appointed, by the same court, guardian of Susan Jane, and a guardian for Ellen Jane, the child of the first wife, was appointed in Bradley county.
    Perry Mills soon after resigned,' and another brother of Ambrose, John Mills, was appointed in his place; About the time that John Mills was appointed guardian in Hancock county, William Mountcastle, who is a maternal uncle of Susan Jane, and who is the complainant in the original bill, was appointed guardian to Susan Jane by the County Court of Hawkins county. Both John Mills and William Mountcastle claimed to be the legal guardian, which dispute resulted in the filing of the original bill in this cause. "Various and extensive proceedings were had under this bill in the court below and in this court. I do not deem it necessary to state them, as I rely upon the matters set up in the amended bill, which presents, in my view of the case, and which was the view of the court below, the real merits and equities of the demand of the complainants.
    The tract of land of which these two brothers were seized as tenants in common, was a valuable one; it -adjoined the other lands of Hiram Mills, and John Mills resided near by; and it is apparent throughout this record that the administrator and guardian, soon after the death of their brother, formed the design of retaining this patrimonial land in the family, and especially of securing it for themselves at an inadequate price, and hence it was constantly represented, as will be seen from the references hereinafter made, as being worth much less than it was. The great obstacle in the way of the accomplishment of their desires was the desire of Simpson and Tucker, who were persons of means, and who also resided on adjoining lands, to purchase this property.
    As had been anticipated, it soon became apparent that the personal assets of Ambrose Mills .were not sufficient to pay his debts, and a bill was filed in the Circuit Court of Hancock county to procure a decree for the sale of the land. A decree was pronounced, but the court, on the motion of Hiram Mills, the administrator, that he be appointed commissioner, refused, and was about to appoint the clerk of the court, when this faithful administrator, for that reason, and that reason alone, dismissed his bill, paid the costs out of the estate, and credited himself with the amount thereof; all this because he could not have the commissions and the control of the sale. ' (That he dismissed the bill and paid the costs out of. the estate, and counsel fee, is admitted in the answer.)
    The administrator next filed a bill in the County-Court of Hancock, in which he could have the cause managed more in accordance with his own views, and obtained a decree for the sale of the land, and procured himself to be appointed commissioner to make the sale. The land was accordingly sold under this decree to John A. Simpson and Rutha Tucker, for §4,901, they being able and outbidding John Mills for the same.
    Here the attention of the court is expressly solicited to the following well-established facts:
    1. John Mills, the guardian, was anxious to have the land. Hiram Mills, before the sale, was disposed to let John Mills have the land at what Ambrose had paid for it, that is, for $2,300. It is proved by John A. Simpson that John Mills wanted the land, and that Hiram Mills wanted him to have it. C. J. McKinney proves that Hiram Mills, soon after his brother’s death, told him that his brother John ought to have the land for some $2,100 or $2,200; that he, McKinney, had a large debt against the estate of Am-brose Mills, and was not willing to have the land sold at private sale, and employed a lawyer to resist a private sale, from which it is clearly to be inferred that Hiram Mills, the administrator, was actually contemplating a private sale to John Mills, the guardian of the little girls, at $2,100.
    Erom this testimony, and much other in the record, it is very clear that these two brothers were greatly disappointed in the result of the sale.
    2. The land was sold to Simpson and Tucker at a very high price, and the sale was, in every respect, a most advantageous one to the estate of Ambrose Mills; it enabled it to pay all its debts, inclusive of all the outrageous charges made by the administrator, hereinafter shown, and left over $3,000 surplus for the little girls, and this after the administrator had all along represented the estate as being nearly if not quite insolvent.
    What are the facts? The land cost Ambrose Mills, a short time before, only $2,300, Hiram Mills stated in his petition to the County Court of Hancock, which was sworn to, that the land was not worth more than $3,000. Hiram Mills said, a short time before the sale, it would not sell for enough to pay the debts. But, as before shown, under the pressure of the heated contest between the Mills and Simpson and Tucker, when the sale came the land sold for the high price of $4,901. Every witness examined proves the price was an enormous one. John E. Robertson says, “ I heard John Mills say the land sold very high, considerably better than he expected; that he thought Heed and Reynolds (who had bid it off for Simpson and Tucker) would get sick of their bargains,” etc.
    • ■ And when the land was afterward, in utter disregard of the interests of the children, resold (and to redress which wrong this amended bill is filed) under very peculiar circumstances pressing upon John Mills, he purchased the land at a greatly reduced price, as will be presently seen. ■ Hiram Mills, having thus sold the real estate, wound up the estate and paid into the hands of John Mills, as guardian, the sum of $3,007.24, on or about April 22, 1856. Thus was the whole estate wound up and settled in a manner resulting from the extraordinary sale of the land, very advantageous to the children of Ambrose Mills. And thus it should have remained.
    But there remained to be adjusted between Simpson and Tucker of the one part, who owned now the nine and one-fourth shares of Ambrose Mills, and all his equities in relation thereto, and Hiram Mills, of the other part, who continued to own the other one and three-fourths shares, the partition of the lands.
    As before shown, Ambrose Mills and those from whom he had purchased, had made valuable improvements on these lands. These tenants in common were now ripe for a lawsuit. - In the language of the witnesses, they were enemies. The Mills were disappointed and enraged. Hiram insisted that in the partition he should have a* share of the said improvements; the other party, that he was not entitled to the improvements, that they had all the rights and equities-of Ambrose Mills, and that as he had made the improvements with his own means, on a partition he would have been entitled to .the exclusive benefit of them. Disagreeing as to this and other matters, Simpson and Tucker filed a bill in the Chancery Court at Rogersville against Hiram Mills, praying that the equities between the parties be ascertained and adjusted, and for a partition. The bill was answered; an angry, and bitter, and protracted litigation ensued; a vast volume of proof was taken, and the cause was ready for -hearing. It was manifest that the main question of the cause (the improvements) was with Simpson and Tucker. 1 Sto. Eq., 6566, 655, 656e; 2 Hum., 185. Indeed, the question was, in the proceedings which soon followed, so settled.
    It being apparent that Hiram Mills would lose the case, ■ it was now resolved, notwithstanding it would greatly damage them, to thrust the infant children of Ambrose Mills into the cause as parties, and attack the sale under the decree of the County Court. Accordingly, Hiram and John Mills procure a bill to be filed in the names of Ellen Jane Mills and her sister, by their next friend, John Mills, for the purpose of having the proceeding in the County Court of Hancock, and the title of Simpson and Tucker declared void, and the bill of Simpson and Tucker for partition perpetually enjoined, and the land resold.
    This bill, filed by this guardian and next friend, does not aver that the land had been sold for an inadequate price, or that it can be sold for a better price, or that it will any way be to the advantage of the children to have the land resold. It merely shows certain technical grounds for setting aside the proceedings in the County Court, and prays that the .bill of Simpson and Tucker be enjoined, and for partition and resale, etc. Now, the object had in view is sufficiently apparent, to defeat Simpson and Tucker, regardless of the interests of the wards of the next friend. Hiram Mills’ deposition was taken, and he very reluctantly states that his lawyer sent him to Sneedville for a transcript of the proceedings in the County Court of Hancock, and for John Mills to come and file the cross bill. Upon examination, it proved that the proceedings in the County Court were fatally defective (which would not have happened had not Hiram Mills fraudulently dismissed the previous proceedings in the Circuit Court), and the sale was set aside, the land partitioned and resold, and Simpson and Tucker thereby defeated. Now, for the result :
    1. The lands were so partitioned as to injure the second sale by interposing the share of Hiram between the share of the children of Ambrose and the lands of Simpson and Tucker, thereby removing the motive of the latter to purchase, and also so as to do the children injustice as to the improvements.
    2. When the land was resold it was bought by Perry Mills for the guardian -and nest friend, John Mills, for $4,450, by which these complainants lost $351, which went into the pockets of these uncles, next friends, and guardians.
    3. When the sale was set aside, Simpson and Tucker had a decree for the purchase money which they had paid, and interest, and of which the estate of Ambrose Mills had had the benefit, and were held to account for the rents of the land. On taking the account it resulted as was perfectly plain it would result, that the interest on the money exceeded the rents, whereby, by the fraudulent conduct of these uncles, guardians, and next friends, these nieces and wards sustained a further loss of $957.57.
    4. These wards, in this proceeding, were taxed with part of the costs, and a counsel fee, amounting in all to the further sum of $278.73.
    5. Eor selling the land under the void decree of the County Court, and which decree himself had procured, and which, on his own motion, as we have shown, was declared void and set aside, Hiram Mills was allowed $245.05, all of which he still retains; and for the resale of this same land, the clerk at Rogers-ville was allowed $74.75.
    6. In various other items there were losses, more or less heavy. Thus, by these wrongful proceedings, more than one-half of the estate was wasted.
    Now, have these children any redress? The court below so decreed, and we maintain properly. The first sale was unquestionably - a most advantageous one. It saved the estate from insolvency, and made a handsome surplus for the heirs. If the proceedings were irregular, what was the clear and manifest duty of the guardian? Surely not to file a bill (and least of all for the purpose for which it was filed) to set it aside. If the heirs desired, or coming of age should have desired to avoid the sale, they could have done so. If the proceedings were void, they in no manner and in no event could have been injured. So far was this from being the duty of this guardian, that had Simpson and Tucker filed a bill seeking, on their part, a release from the sale, it would have been the imperative duty of John Mills to have filed a bill to have this most advantageous sale confirmed, which he could have done.
    This doctrine has been repeatedly held by this court. The last case reported is Swan v. Newman, 3 Head, 288. There is among the records of this court a case, decided some years ago, from Claiborne, not reported, in which a void sale, under similar circumstances, was confirmed on the application of the minors.
    In the case of Swan v. Newman, the court say,. 
      “ Where we can see that the sale was advantageous to the latter (minors), and that a loss would result from setting it aside, we would not do so, for irregularities and defects that can be cured by decreeing the title to the purchaser.” So, independent of the wrongful and fraudulent intent, John Mills was guilty of gross misconduct and mismanagement in a fiduciary office, for which he will be held responsible; but for a •stronger reason, namely, the improper and selfish motives by which he was actuated, will he be held in this cause to make good the losses which these minors have sustained. In a ease like this, where the duty of the trustee was so clear, where no action on his part was demanded, where the estate of the ward was in as good a condition as it was possible to place it, where no delay or refusal to act on his part could possibly prejudice the rights or even the caprice or whims of his wards, it does not require the citation of authority or argument to establish his responsibility; but when the court looks to the elements of fraud and positive wrong that enter into the case, it is still more clear.
    No question can be here made as to the decrees of the Chancellor in the case of J. A. Simpson et al. v. Hiram Mills, the cause not being in this court.
    Thomas A. R. NelsoN, for defendants.
    At the June Term, 1852, of the County Court' of Hancock, a decree was pronounced ordering the sale of the interest of Ambrose Mills’ heirs in 240 acres therein described. Reed and Reynolds, acting for John A. Simpson and Rutha Tucker, purchased the land at that sale at the price of $4,901, from. which interest was deducted on account of advance payments, reducing the price to $4,819.33. John A. Simpson and Rutha Tucker, having purchased nine and one-fourth out of eleven shares, filed their bill on the 30th of January, 1855, for partition, and on account of rents and profits, etc., which was duly answered, and in which much testimony was taken. Those proceedings were destroyed * during the war, but are referred to in, various parts of the record.
    Pending the suit in which Simpson and Tucker were complainants, Ellen J. and Susan J. Mills, the minor children of Ambrose, by their guardian and next friend, John Mills, filed their bill to set aside-the sale to Reed and Reynolds for Tucker and Simp--son. This bill was filed May 31, 1856, and a decree was pronounced setting aside the sale and dismissing Simpson and Tucker’s bill, ordering an account, etc., on the 26th of November, 1857. Further decrees were pronounced in that cause on the 29th of May, 1858, and 27th of November, 1858, in which, the land was resold to John Mills for $4,550.
    After these proceedings, and on the 30th of November, 1858, an amended bill was filed in the names of the minors by Wm. Mountcastle, guardian, etc., in which it is sought to settle the right to the guardianship, to surcharge and falsify the account of the administrator, to show that the resale of the land was. disadvantageous to the minors, and was procured by the fraud of the administrator and guardian, etc., as. will more fully appear from the prayer of the bill. This last named bill was filed as an amendment to the original bill filed on the 1st of November, 1854, by ¥m. Mountcastle, claiming to be guardian of Susan J. Mill, which was filed for the purpose ,of settling a contest as to the guardianship, and to compel the administrator to account for several alleged devastavits,. and generally. On the 2d of October, 1864, a final' decree was pronounced holding that Hiram and John Mills improperly procured a resale of the land, ordering an account as to the same, but refusing all other relief. Erom- this decree defendants appealed.
    ' 1. The bill to set aside the sale of the land made under the direction of the County Court was prosecuted to a successful hearing by the guardian and next friend, and was binding on the minors. No new bill could be filed by another next friend unless as a bill of review, or for gross fraud clearly established, and that not without the previous leave of the court. There will be no end to litigation if any person, acting from pique or malice, can at any time file a bill to impeach the action of a former next friend. See Mac-pherson on Inf., 39 Law Lib., 386 marg.; Ibid. 373, 366 marg.; Milly v. Harrison, 7 Col., 199.
    2. Although the bill filed in the names of the minors by John Mills as their guardian and next friend is stigmatized, in Mountcastle’s amended bill, as a “foul and corrupt proceeding,” and is assailed as fraudulent, the propriety of the proceeding and the gross 'injustice of the charges will appear from the following propositions of law and fact:
    
      1. The proceeding in the County Court was not merely voidable, but absolutely null and void, because the land was sold, at the instance of the administrator, without an account as to the debts, without service of process on the minors, and without the appointment of any guardian ad litem. The jurisdiction in such cases is special and limited, and a sale cannot be directed in any other mode than that authorized by .statute. Act of 1827, ch. 54; Car. & Nic., 82; Act 1789, ch. 39; Ibid 370. Whitemore v. Johnson, 10 Hum., 610; Estes v. Johnson, lb. 203; IJinlcle v. Shad-den, 2 Swan, 46; Morris v. Richardson, 11 Hum., 389; Robertson v. Robertson, 2' Swan, 197; Ivey v. Ingram, 4 Col., 129: Curd v. Bonner, lb. 632; Taylor' v. Walker, 1 Heis., 738, 739; Martin v. Turner, 2 Heis., 388, 389. See also 1 Swan, 75, 484; 2 Swan, 197; 1 Head, 128; Rucker v. Moore, 1 Heis., 726. Independent of the statute, a Court of Chancery has no power to direct a sale. Tyler on Inf. and Cov., '296, sec. 193.
    2. It is conceded that an irregular sale, which is manifestly for the benefit of minors, may, under some circumstances, be sustained, according to Kirkman, ex parte, 3 Head, 517; Swan v. Newman, 3 Head, 288, and Curd v. Bonner, 4 Col., 639. But it is difficult to perceive how, if the sale is void, the court can make it good. Douglass v. Harrison, 2 Sneed, 382. If it is law that a void sale can be confirmed, the fact that the Chancellor set aside the sale when all the parties and all the facts were before the court, is conclusive to establish the bona fides of the guardian and next friend in filing the bill for that purpose. The reasons for setting aside the sale are fully set forth in the bill and in the decree, and if there is any sanctity in judicial proceedings, the next friend, having acted in good faith, should be protected according to the principles laid down by Lord Chancellor Brougham in 1 Beav., .584, and quoted in Mac-pherson on Inf., 39 Law Lib., 366 marg.
    3. The mere fact that the land sold at the second sale for $4,550, when it brought at the first sale $4,-,819.33 .(nett after deducting interest for advance payment), is no evidence of fraud. Between the date of filing the bill, May 31, 1854, and the date of the second sale, July 23, 1858, the great suspension of the banks in 1857 had occurred, and this and other causes referred to in the answer produced the deterioration in the value of the property. The act of the next friend should not be judged by the result, but by the state of facts existing at the time he filed the bill; and the weight of proof in that cause conclusively shows that, in the opinions of witnesses who had knowledge of the facts, the land would bring a better price, and a resale would be to the interest of the minors. This is not outweighed by the evidence of other witnesses who prove that Simpson paid a high price, because the proof shows the land rapidly appreciated in value after Ambrose Mills bought it at $2,-300, as L. E. Mills states, and was believed to be still increasing in value. And when the commissioners made the partition between Ambrose Mills’ estate and Hiram Mills, they valued the two hundred and fourteen acres of Ambrose at $5,350, and the forty-two acres of Hiram at $1,050.
    4. The suggestion that the resale was produced by a fraudulent combination of the Mills’, is conclusively repelled by the deposition or statement of R. G. Fain, clerk and master, that he urged John and Hiram Mills to bid at the sale, succeeded with difficulty in getting them to do so, and that they actually bid against each other.
    5. The fact that the estate of the minors was subjected to costs and charges in regard to the two sales, does not establish fraud, for, according to the rule laid down by Lord Thurlow, no degree of mistake or misapprehension will be. sufficient to charge a proehein ami with costs; and, according to Lord Hardwicke,. next friends must act under great degrees of uncertainty and upon probabilities, and especially where a suit has been carried on under the direction or with the approbation of the court. Macpherson on Inf., 39 Law Lib., 389 marg.
    6. The “ prodigious ” losses paraded in Mountcas-tle’s bill cannot be fairly ascribed to the next friend.
    First. The amount of $957.57, in the supposed excess of interest over the value of rents and profits, resulted from the Chancellor’s mistake, and not from the act of the next friend. The master only allowed $132 per annum for rents, when the proof clearly showed that $270 should have been charged, and the Chancellor should have sustained the exceptions.
    Second. It was not prayed in the bill that the land should be resold to reimburse Simpson, nor was this asfced in the answer. It was done of the Chancellor’s own volition, and the next friend is not responsible for it. It is very doubtful whether it should have been at all, in the state of the pleadings, and without a bill filed for that purpose.
    Third. The statement in the bill, that the estate of the minors was reduced to the “humble pittance”' of $1,393.39, entirely overlooks the large indebtedness of the estate to C. J. McKinney and others, and omits the fact that the guardian had paid Susan J. Mills $256.40, and Ellen Mills $119.50, over and above the $1,393.39.
    .Fourth. The account does not show that Hiram Mills has pocketed $617.75, as. charged in the bill. In fact, the master’s report of the administrator’s account is not in the record, although its results are stated in the decrees. In the absence of proof to the contrary, it is to be presumed that these are correct. The Chancellor declared in the suit by John Mills, next friend, that the parties acted in good faith.
   Sneed, J.,

delivered the opinion of the court.

The only question presented in this cause is whether Hiram Mills and John Mills, upon the ground of faithlessness or fraud as trustees, are liable to the complainants for the losses shown to have been sustained -by them in the second sale of the real estate of Ambrose Mills, deceased; and upon this question upon- the careful consideration of the record marked by the counsel for both parties, we proceed to state our conclusions without elaboration. We may state at the threshhold that in regard to the question arising under the original bill of William Mountcastle upon the alleged devastavit, we hold these trustees vindicated entirely and completely by the proof in the cause, and their liability to these present complainants must stand or fall upon the case made out under the amended bill. A few facts prominent and uncontroverted in the record must go very far to relieve the case of all difficulty, if indeed they be not decisive of the equities of these parties. It may be laid down as an elementary doctrine of a court' of equity that the mere errors and mistakes of one occupying . the thankless office of a trustee, done or committed upon his best judgment and in good faith with a view to the benefit of his cestui que trust, will always be regarded with leniency and indulgence. “ There is no reason,” as this court has said, “ why he who barely executes a trust should be liable, unless he had a benefit thereby, or did it with a fraudulent view to prejudice others.” McCaleb v. Perry, 5 Hay, 88. On the •other hand, it is equally an elementary doctrine of a court of equity that the good faith of a trustee is his ■only shield, when it is made to appear that under his •administration of the trust, the trust estate has been squandered or diminished, he cannot act for himself, he cannot take a benefit to himself or his friends, he can in nowise take advantage to himself to the disparagement of the interests of the beneficiary, and he will be held to the most exact accountability if a malversation be shown, or even if the suspicion of fraud rests upon his fiducairy action.

The complainants in this cause are Susan Jane Mills and Ellen Jane Mills, the daughters of Ambrose Mills, and the issue of distinct marriages. They are represented in the amended bill by William Mount-castle, the maternal uncle of Susan Jane Mills, and who assumes to be her guardian also, in which right he also sues, and in. whose name as next friend the complainants also sue. Ambrose died intestate in January, 1852, and was the owner, at the time of his. death, of an interest of nine and one-fourth elevenths in a tract of land in Hancock county of two hundred and forty acres, which came to him by inheritance from his father, and by purchase from his coheirs. The other interest of one and three-fourths elevenths of the land belonged to the defendant, Hiram Mills, the brother of the said Ambrose. This tract of land is the subject of 'this litigation. Ambrose Mills lived upon it for several years, and had placed valuable improvements upon it. The said Ambrose Mills left surviving him .three brothers, the said Hiram Mills and John and Perry Mills. Hiram Mills became the administrator of the estate of his brother Ambrose. Perry Mills became the guardian of Susan Jane Mills, and a guardian for Ellen Jane was appointed by the County Court of Bradley county. Perry Mills,- not long after his appointment as guardian, resigned the trust, and thereupon John Mills was appointed by the County Court of Hancock county, in which court the original guardian and the administrator had also been appointed. About the time of the appointment of John Mills as guardian of Susan Jane, iii .the County Court of Hancock, the complainant, Mountcastle, was appointed guardian of the said Susan Jane by the County Court of Hawkins, and an angry contest sprang up between the two as to the guardianship and possession of the ward’s estate, the one guardian being the maternal and the other the paternal uncle of the said Susan Jane Mills. This contest was. initiated by the original bill in this case, with which, however, we have nothing to do. It is charged in the amended bill that these brothers, soon after the death of the said Ambrose, combined together to cheat and defraud the children out of their patrimony — to get possession of the land at an inadequate price; that said administration and guardianship were procured and used to that end; that they did at last succeed, to some extent, in accomplishing their purpose; that a large portion of the estate was lost by an alleged unauthorized sale of the land, fraudulently brought about by the defendants for their own advantage, and for these losses the complainants demand an account and reimbursement. Many other specifications of fraud are charged, all of which are, by the defendants, flatly denied. ■ A vast volume of proof is taken, and much documentary evidence exhibited. We think it is established by the proof that the Mills brothers were anxious to secure the real estate of their deceased brother to one of themselves in the event the sale thereof became necessary in the course of the administration. But considered alone, this fact would signify nothing, as it was neither unnatural nor reprehensible that they should desire to retain the old homestead in the family. It is shown, however, that one of these trustees was heard to say more than onee that he wanted the other to have the land, and at a valuation which is shown to he about half its real value. It is shown also that some of the proprietors of' adjoining lands were anxious to purchase the estate, and that they were both willing and able to pay a round price for it. Under these circumstances a creditor of the estate, when it became apparent that the land must be sold to pay debts, employed counsel to resist in open court the apprehended application of the administrator to make a private sale of the land, and _to secure a public sale in order to secure the highest price. These are prominent facts which meet us at the threshold, and acquire the greater significance as we proceed with the investigation. The first effort made by the administrator to have the land sold was in the Circuit Court of Hancock county, where a decree was actually pronounced; - but it is alleged that the court disallowed the application of the said administrator, Hiram Mills, for. his own appointment as commissioner to effect the sale, and he thereupon dismissed the petition, paid the costs, and obtained a credit for the amount. He next applied by petition to the County Court, where he - had a decree for the sale of .the land, and procured his own appointment as commissioner. The land was sold under this decree, and was bought by John A. Simpson and Rutha Tucker, outbidding the defendant, John Mills. The price brd for the land by Simpson and Tucker was the sum of $4,901, shown to be an adequate price, and, indeed, thought by some to have been more than its value, one of the defendants being heard to say that the land sold very high, and that the purchasers would get sick of their bargain.” In the administrator’s petition for a sale, the value of the land is stated at $3,000. He was heard to say repeatedly that the land would not pay the debts of the estate. The debts were nevertheless paid by the sale, the estate wound up and the sum of $3,007.24 of surplus paid into the hands of the guardian. In the meantime an enmity and a fued existed between Hiram Mills and John A. Simpson, the purchaser. In their negotiations for a partition, it is said that the said Hiram Mills, as tenant in common, asserted a right of participation in the valuable improvement put upon the estate by his brother Ambrose, and that Simpson resisted this demand, claiming to be subrogated to all the equities of Ambrose in his life-time, and that on a partition merely, that the said Ambrose would have been allowed the benefits of his improvements. It is stated that the purchasers, Simpson and Tucker, filed their bill to have their equities adjusted, and for a partition; that the bill was answered, much proof taken, and an angry .litigation ensued; that the cause was ready to be heard, when the controversy was abruptly terminated by an injunction obtained upon the intervention of John Mills upon his cross bill as next friend to the children of Ambrose, filed by leave, to set aside the sale under the decree of the County Court to Simpson and Tucker, and to have the land partitioned between the complainants and the said Hiram, upon the alleged ground that the original sale was null and void for the reason that the process was not served upon the children, that no debts were shown in the petition, that no account was ordered to ascertain them, and that no guardian ad litem, was appointed. Upon the hearing of the cause upon the cross bill answers and proofs, the Chancellor declared the sale to Simpson and Tucker to be null and void, and directed a partition as prayed for. The Chancellor decreed also that the large payment of the purchase money made by Simpson and Tucker should be refunded to them. It seems to have been apparent, and well understood, that this indebtedness could not be paid except by a resale of the land. The partition was had, - however, and it is charged in the bill that the said Hiram so controlled the said partition as to get the benefit of the improvements referred to, and to have his own interest laid off so as to lie between Simpson’s contiguous tract and the main body of the land in question, and thus get rid of Simpson as a rival bidder at the next sale. Under the decree of the Chancellor, Simpson and Tucker were required to account for the rents while they had possession, and upon the account taken the interest on their purchase money was found to exceed the rents, and some $957 lost to the complainants by the transaction. The land was resold, and there were only two bidders, Hiram and Perry Mills, to the latter of whom the land was bid off at $4,550, it being less by $351 than the amount for which the land had originally sold. It should be stated that the cross bill, the filing of which is charged to have been instigated by Hiram Mills, does not aver that the land had been sold for an inadequate price, or that it can be sold for a better price, or that it will in any manner be to the advantage of the children to resell the same. It merely demands the sale upon the technical grounds stated. In consequence' of these proceedings the complainants not only lost the sums already stated, but they were taxed with part of the costs and with counsel fees amounting to the sum of $278.73. Their little estate was also charged with the sum of $245, paid to the defendant, Hiram Mills, as commissions for selling the land under this decree of the County Court, the very decree which he is shown to have obtained, and afterward to have been so active in causing to be annulled. It is not necessary to characterize the motives of these defendants. We see in this record some evidences of good faith in the long and chequered history of these transactions. It would not be just to impute to them a disposition to cheat and swindle the children of their deceased brother. We think it is clear that, instead of the unnatural purpose of defrauding their brother’s children, they were actuated by the design, in all they have done in this last transaction, to foil and circumvent their enemy in getting possession of the land. A court of equity will demand to know this motion, and whether their eonduct be referred to a deliberate purpose of fraud, or to a mere stratagem to defeat the purchase of Simpson and Tucker, or to any other conceivable motive than the best interest of their oestuis que trust, and an honest purpose to benefit them, a •court of equity will compel them to expiate this great wrong. They insist in their defense that the bona Jides of their transactions have been passed upon by the Chancellor, and that in the decree setting aside ■the first sale the Chancellor pronounced in favor of their good faith, and that the same is now res judi-cata. To this it must be replied that the same Chancellor, when all these facts were brought before him, held that “John Mills and Hiram Mills improperly procured the resale of the land in the pleadings mentioned whereby great loss was sustained by the complainants,” and an account of said losses was accordingly ordered.

We are ■ asked to reverse this decree upon the ground that the proceedings of the- County Court under which the original sale was had were so irregular as to render the sale under them null and void. In looking to those proceedings we find that Perry Mills, the brother of the petitioner, was made defendant to the petition as guardian of both of the minor heirs of Ambrose Mills, and that he came into court and waived the issuance of process for his wards, and answered the petition in which, according to the decree, “all the allegations in said petition are admitted to be true, and agrees, as guardian as aforesaid for and on behalf of said minor children, that as it will be greatly to the interest of said wairds, the administrator may sell the land as the court may direct.” But it seems from said decree that the slaves were directed to be sold to pay the debts, and the land to be sold because it was to the manifest interest of the minors, that the same be sold. This feature of the case is remarkable, and tends to throw around their transactions another great cloud of suspicion. We are not prepared to say, under the rulings of this court in. the construction of our statutes, that these proceedings, of the County Court were regular and valid. It is-not essential that the question whether the said sale be valid, void or voidable, should be now determined. The equities of these parties do not turn upon that question. Whether that sale be void or valid, it was, beyond all controversy, a most advantageous sale to these complainants, and it was one which these defendants were bound to uphold and not destroy. If it was a void sale, then the purchasers might have complained; but as they did not, and as it is shown that the sale was more advantageous than any sale of that land could ever be again, then it was the manifest duty of these defendants to let it stand, and to abide the majority of the children who might affirm or disaffirm it. This court has said that “as between the purchaser and the infants, when we can see that the sale was advantageous 'to the latter, and that a loss would result from setting it aside, we would not do so for irregularities or defects which can be cured by decreeing the title to the purchaser. The court will afford to the infants the proper protection by securing to them an advantageous sale.” Swan v. Newman, 3 Head, 390, 391. In that case the bill was filed by the purchaser to have the sale set aside for supposed irregularities. And even conceding the original sale to be absolutely void in this case, bow would a Court of Chancery respond to an application by the administrator himself under the facts of this case ? •For though John Mills, the guardian, put himself forward in this case as the champion of the complainants, yet we cannot doubt under the proof that Hiram Mills was the prime mover and instigator of this proceeding. His very answer to the cross bill betrays him, and shows not only a ready accord with the purposes of the bill, but a connivance at the institution of that part of this most remarkable litigation. A court of equity will scrutinize the motives of men, and especially those who occupy a relation of trust to infants and others under disability. It is apparent in this case- that the defendants' were actuated by no motive to advance the interests or increase the fortunes of their complainants in their superserviceable and unnecessary interference with this sale. Whether regular or irregular, void or valid, it was not their province, above all men; to attack it. They have brought, by their conduct, a great loss upon these complainants, and whether their motives be founded in malice or fraud, there is such an absence of that character of fiduciary good faith which. a court of equity demands, that' they must be held to answer for it.-

Affirm the decree and remand the cause.  