WESTCOTT, J.,
delivered the opinion of the court.
James L. Winter, executor of thd last will and testatnent of J ames Winter, deceased, filed his petition in the Circuit Court of Duval county, in the -year 1857, alleging that the land which the testator directed should be divided between the devisees under the will could not be equally, fairly and beneficially divided. The parties interested in the estate were named defendants in the petition, and among them was the plaintiff in this cause, who was at'that time an infant about eighteen years of age and a resident of the State of South Carolina. A sale was had under these proceedings, the order for the sale being dated the 22d of October, A. D. 1858. The defendants, Price, Howejl and Hall, were purchasers at said sale and now claim interests in the land under the sale. No objection is urged in this action-to the sufficiency of the petition in these proceedings.
The plaintiff Winter, through this action, seeks to set aside this sale upon several grounds. He insists that as to him the sale is void for two reasons :
■ First, • Because the court did not-have jurisdiction of his person; that he was served with no process; that, although he was a non-resident infant, no publication was made and that no guardian ad Mtem was appointed.
Second, Because the executor was interested in the bids .by which the defendants acquired their interest in the land. Plaintiff also charges fraud and collusion between several parties to the proceedings, and also insists that there are such errors and irregularities in the proceedings as require the sale to be"set aside in his behalf.
The irregularities complained of are that his statutory guardian, who was permitted to appear and represent him, [100]*100was of kin to the executor, being his brother-in-law; that while two commissioners were appointed, only one was present conducting the sale; that no time and place was named in the advertisement for the sale by the commissioners, and other irregularites of like character.
We examine these questions stating the case as it appears from the petition and the proceedings for sale in the Circuit Court, and the record and the evidence in this action.
The question of jurisdiction and the alleged irregularities we consider first, as they can be more readily embraced under the same head.
It appears from the record of the proceedings that Frederick Yon Santen, the statutory guardian of the plaintiff, acknowledged service of citation for the plaintiff, that he filed an answer alleging infancy, denying all the allegations in the petition, and submitting his interest to the court. Without any formal appointment of a guardian ad Utem, the citation was served upon the statutory guardian who appeared and defended the action, putting in the defences required by the statute.
Two questions arise here. Was it necessary that the citation should have been served upon the infant 2 If not, does not the appearance of the statutory guardian, his recognition by the court and his defence of the suit, constitute him a guardian ad Utem without the formality of an appointment ? and is this not sufficient under the statute to give jurisdiction 2
Let us understand precisely and accurately the nature of tho subject which we are treating.
The Circuit Court in the proceedings for the sale was dealing with the estate of a deceased person and the inheritance of an infant. What were its powers in reference thereto 2 Even admitting that in this proceeding the Judge of the Circuit Court was exercising chancery poweVs, which we think is not the case, as it is a special proceeding in which chancery powers are not brought into action', still [101]*101there is no doubt that all the power and jurisdiction which the court exercised in the matter of the sale of the infant’s inheritance was derived from the legislative enactment. The inherent and original power of a court of chancery does not extend to a sale of the inheritance of an infant. Lord Hardwicke in 1750 said, “ There is no instance of the courts binding the inheritance of an infant by any discretionary act of the court. That would be taking on the court a legislative authority, doing that which is properly the subject of a private bill.” 2 Ves. Sr., 23 ; 6 Beav., 97; 10 Leigh, 421; 18 Gratt., 663; 6 Hill, 414; 4 Comst., 257; 3 Bland Ch’y, 186 ; 8 How., 556. Ve thus see that this is a proceeding within the control of the legislative department of the government. There is no doubt of, its plenary power over the subject matter of the inheritance. It creates the right to the inheritance by enacting rules of descent, and gives as well as regulates the right of making testamentary dispositions. There is a. paramount power in the-government to direct in what .manner the land of the decedent may be distributed, and if it be impracticable to make division in kind where a division is directed, it may sell the property and distribute the proceeds. Nor can it be doubted that the power exists in the Legislature to authorize the sale of an infant’s interest in the estate of his ancestor without notice of the proceeding to the infant. This matter was discussed in the case of Florentine vs. Burton, 2 Wall., 210. In that case the administrator 'was authorized to sell at private sale with the approbation of the court. ’ The act required no notice to be given, and in the record of the proceedings before the court there was no mention whatever that any notice had been given to heirs or to any person. The Supreme Court of the United States sustained the title of the purchaser and asserted that the Legislature had not exceeded its powers. See also 4 Scam., 134; 19 Texas, 369.
In proceedings under the statute it is thus apparent that á compliance with the enactment is sufficient. If the act [102]*102does not require notice to the infant, and prescribes any other method by which the court is to acquire jurisdiction of the person, then compliance with that method is all that is necessary, and while, in all cases, it is better to give notice to the infant or some near relative, still it is not essential if it is not required by the statute. The act in this State requires “ the court to order citations to all the heirs or devisees who are of full age, and to the husbands of such as are femmes covert requiring’ them to appear upon a particular day mentioned therein at a regular or adjourned term'of the court, not less than thirty days from the time of issuing such citations and answer said petition, and it shall be the duty of said court forthwith to appoint gtmxlicms to such of the heirs'or devisees as cere infants to answer and defend against said petition, which guardian shall not be the petitioner or of kin to the petitioner or his attorney or agent.” The act provides further that “ it shall be the duty of the guardian appointed as aforesaid to deny all. the allegations contained in said petition without being verified by oath, and if necessary to employ counsel to defend his ward or wards.” As to non-residence the statute provides “ that if the petitioner shall make oath that any of the heirs or devisees are of f ull age and live beyond the limits of this State, or that their residence is unknown to the petitioner, a notice by advertisement’ * *' * shall be given.” (The italics in these quotations áre made by the court.)
To acquire jurisdiction of infants, .whether’ they.be resident or non-resident, the act requires the appointment of a guardian ad TAtem. To acquire jurisdiction of .adults the act requires a citation to resident heirs and a notice by publication to non-resident heirs. '
It is welkin construing such statutes as this to trace their history. It is seldom that yon cannot find in the older States statutes similar' to these regulating such matters in the younger States, and if such statutes have, in the States from which they are derived, received a judicial construction, it is generally a safe plan to adopt that construction.
[103]*103The act of 1841, in this State, (Thomp. Dig., 203 and 4,) under which the proceedings were had, was taken from the act of Alabama of 1822. (Clay’s Ala. Dig., 224.) Under the decisions of the Supreme Court of that, State, it is held that the proceeding under this statute is in rem,, that the jurisdiction of the court attached upon the tiling of a petition in which is alleged the existence of one of the statutory grounds of sale. (41 Ala., 39 ; 29 ib., 542, 210 ; 28 ib., 215.) In a late case (41 Ala., 48) that court - remarks, “ the proceedings for the sale of decedents’ lands are held by a long chain of decisions, not now to be questioned, to be In rem, and therefore the validity of the orders can never depend upon the fact that the court has acquired 'jurisdiction of the parties.” We cannot go this far. We cannot hold that the validity of the orders under our statute can never depend upon the fact that the court has acquired jurisdiction of the parties. In the language of Mr. Justice. .Bronson, (1 Hill, 139,) “it is necessary that the court should acquire jurisdiction over the person to be affected by the sale. The court must, either by serving process, publishing notice, appointing a guardian, or in some other way bring the party into court, and if judgment is rendered against him before that is done, the proceeding will ■ be as utterly void as though the court had undertaken .to act where' the subject matter was not within its cognizance.” In a subsequent case in -New York, (2 Comstock, 463,)’ the ease in which this language was used, was reviewed, and in view of the very great diversity of decisions upon this stibjeet, we quote with approbation its commentary upon the only case which the Supreme Court of the TInited States in 2 How., 131, cites as sustaining the broad proposition that such proceedings are iAi rem, and no notice to parties is necessary. Of this case (11 Sergt. & Rawle) • the Court of Appeals of New'York remark: In this case “ it was held that under the peculiar and exclusive power of the orphan’s court, as a court of record, established by the Constitution, an order of [104]*104sale was of the nature of a proceeding in chancery, of which the petition of the administrator was the bill, and in which, by act of the Assembly, he is the sole party representing the estate.” Of the case in 2 flow., 131, (which has been criticized with some severity — 7 Rob. Pract., 86 to 89,) the only question we see about which there can be doubt, is its construction of the statute. If the statute required no notice to give jurisdiction of the infant, none was necessary, and if it did make this requirement, then it was necessary, and there was no jurisdiction of the person. Our conclusion upon this point is that personal service of citation upon the infant was not necessary, as the statute did not require it; that the statute required the appointment of a guardian to appear and represent the infant, and if the court did this it had jurisdiction of the person. The Supreme Court of Ohio (13 Ohio State, 506,) speaking of the necessity for personal service upon the infant, says : “ It is enough that a guardian, either specially appointed for the purpose or having the care and custody of the infant’s person and estate, was before the 'Court when the order was made.” (See also 18 Ohio S., 368 ; 15 ib., 689 ; 7 ib., 138, 198.) In this case it is unnecessary to consider the doctrine of presumptions as applicable to courts of inferior and limited jurisdiction. All that was done here as to service of process appears affirmatively upon the record, and, as to the matter of jurisdiction, the affirmations of a judicial record are verities, and presumptions should not and cannot reach to such an extent as to give jurisdiction of the person when all that was done appears affirmatively, and what was done does not show it.
The next question which arises is, was the infant in these proceedings for the sale represented by a guardian ad litem ? It appears from the record that F. Yon Santen (who was the general guardian of the plaintiff) in the proceeding, by petition, acknowledged service of-the citation for plaintiff,'that he filed an answer alleginghis infancy, and that in such answer he denied all the allegations of the petition, and that the court [105]*105in its action recognized him as guardian ad litem. In other words, he did all that the statute required, with the sanction of the court, but without any express appointment as guardian ad Tótem by the judge. This is sufficient. We find, after thorough examination of all the authorities within our reach, but two eases deciding this precise point, and they agree in the conclusion reached. In 2 Stewart, 214, the Supreme Court of Alabama declare and decide that where minors defendants have been permitted to make full defence by their general guardian, it will consider the sanction given to such mode of defence as equivalent to the formal appointment of a guardian ad litem. The court says that although not formally appointed guardian ad litem; such recognition is equivalent thereto. In Virginia, (6 Mon., 104,) where a suit against infants in chancery was defended by a guardian appointed by the county court, and his answer was received, and he made full defence and was recognized'by the court, the Supreme Court held that the infants were as much bound as if their guardians had been appointed in form ad litem by the court of chancery. In the proceedings for the sale of this, land, there was, therefore, jurisdiction of the subject matter and of the infant in the proceedings for the sale. This being the case, the matters complained of as irregularities and errors in the exercise of jurisdiction c^nriot be available in this action against a purchaser at the sale in -the absence of fraud or for some like reason. This action is a collateral proceeding, not being in the same case and between other parties than those who were before the court in the proceedings for the sale. This action is essentially an equitable proceeding, and is equivalent to an original bill in the nature of a bill of review.
In Windham vs. Windham, 3 Chy. Reports, 12, an indirect attack was made upon a sale under the decree of a court of equity, whereupon the Lord Keeper remarked : “ You blow up with gun. powder the whole jurisdiction if such a purchaser is not protected.”
[106]*106More et ux vs. Neil et al., 39 Ill., 262, was an original bill against the purchaser of an infant’s interest at an administrator’s sale of land. This bill, as in this case, sought to set aside the sale for want of jurisdiction as well as for errors and irregularities. The court having decided that there was jurisdiction, remarked : “ This disposes of the case. -Various other objections are made to the proceeding, but it is unnecessary to consider them, for at most these were but errors and cannot be urged against the title of these defendants. It is urged by the counsel for the plaintiff in error that this proceeding is not collateral. Perhaps it should not be so regarded, so far as relates to the parties to the former bill, but as to the defendants in this proceeding, whose title derived from the sale is sought to be divested, it is as purely collateral as an action of ejectment.” 38 Ill., 108 ; 47 Ill., 290 ; 40 Miss., 142.
In Letcher vs. Letcher, 41 Ala., 39, the Supreme Court of that State, when asked to look into irregularities and errors attending a sale as against a purchaser, remarked : “We cannot assent to such a proposition. The maintenance of it would lead to consequences alike absurd and injurious. It would make a strict compliance-with a large number of statutory requirements the unyielding standard of the validity of all orders of sjile. Some of these requisitions pertain to matters not evidenced by the record. For example, a decree of sale would be void if the guardian ad litem was ot kin to the administrator. One desiring to purchase at the sale would be unable to ascertain by an examination of the record and papers whether the title would be valid.”
The purchaser need look no further than to see that the court has jirrisdiction of the subject matter and parties. 47 Ill., 290; 11 Mass., 227; 1 Peters, 340 ; 2 ib., 168 ; 3 Ohio, 560; 4 Ib., 159; 13 Ga., 10 ; 10 Peters, 475. In 3 Wall., 406, the Supreme Court of the'United States was asked to look into the proof as to a fact in issue under the pleadings in a proceeding for a sale, the record of which was presented [107]*107in 'a collateral action. The court remarked that the matter did not touch the question of jurisdiction, and the action of the court was not open to consideration in a collateral matter. We have thus seen that the court had jurisdiction of the subject matter and the parties, and .that there are no such irregularities in the sale as would authorize us to set it aside.
It is, however, insisted that the executor, Winter, was interested in the bid of Bowden with Miles Price, and that for this reason the sale ' was void. The testimony upon that question was substantially as follows : Emory, one of the commissioners, says that it was understood by him, at the time of the sale, that Miles Price and James Winter, who was the executor, were desirous of purchasing the Dell Bluff tract, that the executor could not be a bidder under his oath, and that Bowden -was the purchaser for Price and Winter, and all the matters of said sale were arranged in accordance with such understanding, Col. J. P. Sanderson, the attorney for the estate, so counselling and advising. Iioeg, the other commissioner, says that it was his understanding that Miles Price and Winter bought the property. This, ho says, was shortly after the sale and before the war. The understanding of the people or the common idea of a community as to who are interested in a sale capnot be accepted as a proper or legal method of establishing that fact. What may have occurred in the office of the attorney of the executor, and the understanding between the executor and his attorney, is no evidence against Price, and it does not appear that Price was at any time present. Howell states that he heard Price say that Bowden bid off the Dell Bluff tract for him (Price) and James L. Winter.
Anthony testifies that “ from what Mr. Price told him, he (Price) and James L. Winter bought the Dell Bluff tract at the commissioners’sale.” This is but the statement of the witness’s own conclusion from his conversation with another. [108]*108■His conclusions are not evidence. He should have stated •what Mr¡ Price did say.
Teresa O. Winter, the widow of the executor, testifies that she was always under the impression that her husband and Miles Price had bought the entire Winter tract in partnership, and that in a recent conversation with Mr. Piúce, he told her that he' and her husband had bought the tract together.. It is thus seen that no witness testifies to what extent Winter was interested, and that the only testimony in the record as to this matter which is entitled to consideration is that of Anthony and of the widow of the executor. 'The testimony of the widow is that of an interested party.
Bowden, who bid off the land, testifies that he bid it off in his own name, but at the request of Price;'that he looked to Price to make the payments; says he, “ I considered the amount bid the full value of the land, and if I had not had as good a backer as Miles Price, I would not have bid that much for it. It was understood between me and him that lie was to make the payments.”
Miles Price testifies that he authorized Bowden to bid off the Dell Bluff tract for him ; that he was responsible for the purchase money, and made the cash payment, and that he subsequently bought the interest of most of the other heirs. He nowhere testifies, however, that there was an understanding between him and the executor, or that the execu-tor was to have an interest. It nowhere appears in the tes- ■ timony to what extent Winter had an interest, and it does ■.appear that everything that has been paid came from Price.
'There is no person in the suit who represents the interests hf Winter, the executor, if he had any, and, that he did have any interest, is certainly not a very'clear conclusion from this testimony.
Admitting, however, for the purpose of disposing of this case, that he did have some unknown interest, what is the i-.ule of equity applicable to the purchase of Price under such circumstances ? It is insisted by the plaintiff that such [109]*109a sale was void and that Price acquired nothing thereby.. All> the earlier cases upon -the subject of a purchase by a trustee of the property of a cesfrui que trust are reviewed by Chancellor Kent in the case of Davou vs. Fanning, 2 John. Chy., 257, and the conclusion there reached is that the court should set aside such a sale, although the property brought a fair price and there is no evidence of any actual fraud, in fact the sale may be at public auction and tona fide for a fair price and it makes no' difference. I understand the rule as expressed to embrace every relation in which there may arise a conflict between the duty which the vendor owes to the person. with whom he is dealing or' on whose account he is acting and his own individual interest. Such sale is not, however, absolutely void, as all the cases upon the subject where the question is raised hold that the cestui que trust, after a re-exposure of . the property to sale, and failure to obtain a better or an equal bid, has a right to hold the trustee to his purchase, and in all cases in which the sale is set aside, the trustee is entitled to be reimbursed, his money paid, interest and improvements. 2 John. Chy., 252 20 Ohio, 503 ; 1 Ind., 565 ; 2 Black., 377; 14 Ohio State, 80; 5 John., 43. All this-would be very well, perhaps, if this record established any interest in Winter and hefwas-here represented; but it' appears that Price made all the payments, so far as this proof is concerned, and we cannot see how this is applicable to .his case. Price was no executor or trustee, and toward none of these parties did he occupy any fiduciary relation. In considering this question we must recollect that this principle, even as to the executor, is-not a matter of absolute law. It is a rule of practice, a principle established by courts of equity with reference to persons occupying fiduciary relations. It is a quasi punishment of persons in such relations for permitting their interest to* triumph in a transaction where their duty and interest clashed.
The whole doctrine arises from principles of public policy. [110]*110The purpose of the rule is fully accomplished when interests thus acquired by a trustee, agent or other person occupying like relations, are not permitted to stand. It is sufficient to brand, tinder all circumstances, so far as such interests are concerned, such transactions as a legal fraud.. So far as Price is concerned he acquired his interest in this property as a purchaser at a judicial, sale under an order of a court having jurisdiction of the subject matter and of the parties. He occupied no fiduciary relation. The bid was for the full value of the land. There was no fraud in fact connected with the sale. Neither upon the grounds of public policy, nor upon any other principle obtaining in a court of equity, can we find a good reason for extending the rule to the interest of a person not clothed with any trust, when there is no fraud in fact, and when it appears affirmatively that full value was realized, and no other ground for setting the sale aside as to him exists, except the naked fact that the execu_ tor had an interest in the bid. In this case the sale was by a commissioner and for full value.
It was insisted that there was fraud in fact upon the part of Miles Price. This opinion is already too lengthy and we do not propose to state and review the testimony upon this subject. We have carefully examined the entire testimony several times, and nothing can be found to justify such a conclusion.
The remaining questions raised in this case arise out of what has transpired since the sale. At the sale, Uriah Bow-den bid off what was known as the “ Dell’s Bluff tract ” for $6,075 — $3,000 to be jjaid in cash on the 1st of January, 1860, $1,537 50-100 on the 1st of January, 1861, and $1,537 50-100 on the 1st of January, 1862, the payments not made in cash to be secured by bond and mortgage. Two forty-acre tracts were sold to Wm. J. Hall for $200 — $67 to be paid in cash on the 1st of January, 1860, $61 50-100 on the 1st of January, 1861, and the balance on the 1st of January, 1862, the last two payments to be secured by [111]*111mortgage. Six hundred acres were sold to Henry Howell for §2,300 — §1,150 to be paid-in cash on January 1st, 1860, and the balance on the 1st of January, 1861, to be secured by mortgage. The sale was reported, an order passed confirming the sale and directing deeds to be made to the purchasers upon the terms stated. Bowden, who bid off the-Dell’s Bluff tract, did not receive a deed for the tract at the time of sale. He states that he bid off the tract in his own name, but for Miles Price; that he was familiar with the value of lands in the county and he believed that the land brought its full value ; that it was understood between him and Price that Price was to make the payments aiid he relied on him to do it; that the commissioners did not, prior to the war, tender him a deed, nor did they, at any time, ask for a mortgage ; that he received a deed for the property after the war.
C. L. Emory, the acting commissioner, testified that Miles Price paid him on the Dell’s Bluff purchase $1,528, and that he paid this amount to the executor, James L. Winter. This payment, it .appears, was made in July, 1860. This sum was the ¿mount due as cash after deducting the amount due to the wife of Miles,Price from this sale and from the estate, she being a daughter of the testator and under the will entitled to a share. No deed was executed at the time of the first payment, and no mortgage was given for the other sums due. The war interrupted any further transactions between the parties, one of the commissioners for the greater portion of the time being North and the other parties South. After the war, and in 1866, the commissioner Emory having returned in December, 1865, a deed was executed by-the commissioners conveying the land to Bowden, and Bowden subsequently executed a deed to Price. There was no mortgage executed by Bowden or Price for any balance due. As a reason for this, Emory, the commissioner, states that the relinquishment of all the heirs and distributees of the estate of James L. Winter or of their legal rep[112]*112resentatives was exhibited to him before he executed the deed. It is unnecessary for the court in this case to do more than dispose of the questions raised by the plaintiff. Whatever interest others have need not be mentioned, and certainly this court cannot in their absence determine their rights. The interest which the plaintiff in this action had after the sale and confirmation and the deed, was his share of the proceeds of the sale. Price having made the cash payment to the commissioners, and. having subsequently received a deed for the Dell’s Bluff tract from Bowden, Bow-den having before that time received a deed from the commissionets, Winter’s interest did not extend beyond his share of the proceeds of "this sale as well as his share of the amounts due by the other purchasers, Hall and Howell. Price insists that he had a settlement with the guardian of Winter for the amount due him on the Dell’s Bluff purchase, and at the same time purchased of the.guardian all of Winter’s interest in the estate, including the eighty acres and the six hundred and forty acres. The guardian of Winter was authorized to receive from the executor such sums of money as was due his ward from the estate, and if that .sum was paid by Price directly to the guardian, that was sufficient-, so far as the ward was concerned.
In reference to the entire interest of Winter after the sale, Price insists that he paid his guardian the amount that was coming to him during his minority, and that since his majority he has had a full settlement with Winter, having paid him the amount due ; that Winter, with a knowledge of the sale by the guardian and by the court, has received these sums with the knowledge that they represented his interest in the land derived from his father. If these are the facts, then it is clear that there is no case made by the plaintiff, not only as against Price, but as against the other defendants also. This,is denied by the plaintiff. The determination of this question involves the consideration of [113]*113the testimony. The testimony having a bearing upon this subject is as follows :
Miles Price, the defendant — I agreed with the heirs to purchase their residuary interest at an estimated value, five hundred dollars. I got Mr. Jaudon to go to the probate, office and ascertain what was due each heir. They had approached me and asked me to buy them out. . I then paid them all except James L. Winter and Henry Jaudon. They accepted the payments and appeared satisfied. This is also the testimony of DaCosta. In the same way I purchased the plaintiff’s interest from Yon Santen his guardian. I paid Yon Santen in Jacksonville and Columbia county bonds and by transfer of stock in the banp of St. Johns. I paid to Yon Santen, as the representative of his rvife, who had an equal interest with the plaintiff, the same amount I paid him as guardian and the representative of his ward, the amount being five hundred dollars in stock and bonds. These deeds of the guardian dated July 13th, 1861, purporting to transfer the interest. of his ward in the land to Price, are in evidence.
It appears-from the testimony that the plaintiff, after he had attained his majority and in the year 1863, came to Florida for the purpose ■ of looking after his interest in his father’s estate, and while there took charge of at least a portion of his negro property, receipting to his guardian.. After the war, and in 1871, he moved to Florida.
The plaintiff testifies, “ I have never had any settlement with my guardian. I demanded a settlement with him before I came. He gave me as a reason for not settling that there was nothing for me, that Sherman, when he came through Orangeburg, had destroyed all his papers.” Notwithstanding this statement of the guardian, he believed he owed him for money received from his father’s estate for the sale and hire of property coming to him under the will. This witness states, “I applied to Mr. Yon Santen at the instance of Mr. Miles Price for an order on Mr. Miles Price [114]*114for bank stock, Mr. Price having informed me that there was some bank stock or bonds coining to me here, and if I would get an order from my guardian he would turn it over to me. He did not tell me on what account it was coming to me, nor did I ask. Mr. Price told me this at his residence. Mr. Price handed me some papers, some half dozen or over. He came out with a large batch of papers and put them on a bench. / did not read them ca/refully. Imay have glanced over some of them, Tout not sujfcientl/y to get the purport of them, nor do Iknov> their contents now. Nobody then informed me, to my recollection, that these bonds were in payment of my share of the real estate. 'My impression was that there had been .money long years before deposited in the bank here for me, either for the hire of slaves or the salé of perishable, property. Prom my knowledge of the condition of the estate and the state of my accounts with my guardian, I would not have taken the bonds if I had known that they were in payment for my interest in the real estate.” The following order appears in the testimony:
No. 29, King Street, Charleston, S. C., April 18, 1871.
Mr. Miles Price will please pay to Samuel A. Winter, Esq., the one-half of the net proceeds of the sale of the St. John’s bank stock which he may have disposed of. Mr. Miles Price is hereby authorized by and with the consent of Mr. Samuel A. Winter to sell the bank stock to the best advantage he may think proper. P. Yon Santen.
Of this order, which wras sent him by his former guardian by his written request, (see his letter in Yon Santen’s testimony,) he says : “ I recognize this as the order sent me. It was inclosed in the following letter:
“ Charleston, S. C., April 18, 1871.
“Mr. S. Winter, Jacksonville, Fla.:
“ Dear Sir : Your letter of the 15th inst. is to hand. You seem to be surprised that Mr. Price had $1,000 worth of [115]*115Florida bank stock, which is onr joint property. Yon may say that you should have had your portion long ago, but could you spare the two hundred and fifty dollars more than I could, but which Mr. Price had 'and laid out for us recently to make the bank stock somewhat good ? Í have written to Mr. Price in- regard to this bank stock, which has so far been of no more benefit to me than it has been to you, and I am looking for his answer. In the meantime, I have' no objection for Mr. Price to pay over to you whatever may be your portion out of the stock sold by him, and for this reason enclose yon an order on him for it. Before you left I told you that I had sent the certificate of the bank stock to Mr. Price to see what he could get for it. I thought it had. been burned with my other papers in Orangeburg by Sherman until I accidentally found it last fall. * * *
“ Yoiir brother, *F. Yon Santen.”
“ I had other reasons to believe that my guardian owed me. There were three or four receipts for negro hire given to James L. Winter, not accounted for to me, and I could find no account of them in the probate court. From 18601 have been supporting myself and have been no charge to my guardian. Before coming bach to Florida, 1 hnew nothing of the sale of the real estate of my father. J hnew nothing that had tremspired about it. Since I came to Florida, I have in no way knowingly consented, assented or approved by word .or act the sale or disposition of the real estate of my father, James Winter, deceased. As soón as I ascertained the condition of affairs in ’relation to my father’s estate, I applied to counsel for legal advice and proceeded to. seek my remedy by law.”
Upon cross-examination, this witness states : “ I sold the negro after I became of age in 1863, but turned over the money to Yon Santen. The interview between me and Mr. Price was immediately after I came back to Florida in 1871, within about ten days after. I have no recollection of reading the papers then, nor that Mr. Von Bcmten’s name toas [116]*116signed to them. 1 may have read the endorsements. I clid not read tbe papers through sufficiently to understand the purport of them. I was then thirty years old. Judge McLean examined the papers in the probate office subsequently to my receiving these bonds. I think I went there before that time. My object in going there was to examine Yon San-ten’s accounts as my guardian. Judge McLean showed me his returns for two years, all that he had. They were for 1859 and 1860. I came to Florida on the seventh of April, 1871. I can’t say whether I went out to the old homestead before I received the bonds. I know it was common repute before I received the bonds that Miles Price had possession of the Dell Bluff place and claimed title. I heard it from Mr. Jaudon and his wife and others; and I also heard by repute that Price’s title was not good. I cannot swear that there was nothing said between Miles Price and myself in relation to the Dell Bluff place in our cowow'sation. ■ I had understood that Brooklyn and Riverside were going up (these places were upon the land formerly known as the Dell Bluff tract) and had seen buildings there before I received the bonds from Mr. Price.”
The endorsements on the four papers shown by Price to Winter were as follows :
Land title, F. Yon Santen, guardian, to Miles Price.
Land title, Frederick Yon Santen, guardian, of Samuel A. Winter, to Miles Price.
Land title, F. Yon Santen to Miles Price.
Receipt of F. Yon Santen and Samuel Winter of all due- and coming from James Winter’s estate, deceased.
There were three deeds, executed by the guardian, one purporting to convey the interest in the Dell’s Bluff, one the interest in the Alachua tract, and the other his interest in the. eighty-acre tract.- The paper endorsed “ Receipt,”' &c., was a certificate setting forth that Yon Santen, the guardian, had transferred to Price the entire interest of his ward in the property.
[117]*117The testimony of Miles Price as to this transaction is as follows : “ I had a conversation with the plaintiff at my house in 1870 or 1871, in relation to the bonds in the bank of St. Johns. It was in the piazzp, of my house ; my wife was present.” Speaking of the papers above mentioned, he says: “ I showed him these papers and he looked over them; and I told him there were some Jacksonville and Columbia county bonds-in the hands of Mr. Bours, and if he would get an order from Mr. Yon San ten I would turn them over to him. He got the order, and I turned them over to him. I had bought the plaintiff’s interest from his guardian, and I wanted to explain to him how he could get his pay, now he had become of age. I told Mm these ionds were, for the landed interest in Ms father’s estate.” The witness then states the particulars attending the transfer of the bonds, which it is unnecessary to insert, ¿s. the fact of the transfer is admitted.
The wife of Mr. Miles Price, who was present, testifies as to this matter .as' follows : “ There was a conversation at our house between Miles Price and Samuel A. Wintez-, in relation to some bonds. They were sitting in the piazza. Mr. Price handed Winter a paper in writing, which paper Winter read in my presence. This was soon after' he came' to Florida after the war.” Upon cross-examination the witness says: “ Winter did not'read the paper aloud. My husband said: ‘ Here, Sam, is a paper I got from Yon San-ten.’ I think that there were other papers handed hizn at the same tizne. I do not recollect that any one else was present except Mr. Wintez-, Mr. Pz-ice and myself and the ■children. Mr. Price told Mr. Winter that Mr. Bours had the bonds, and if he would get an order from Yon Santen he would hand them over to him.”
Rhoda Jane Adams, who was pz-esent, tesifies ’as follows ; “ I was hired at Miles Price’s at the tizzie ; was an employee of his. I saw Mr. Pz-ice give Mr. Winter sozne deeds, which he said was his landed propez-ty, azid told him if he would [118]*118write to his guardian for an order he would return the bonds-to him.” Upon cross-examination, witness says : “ I don’t remember Mr. Winter’s reply. I can’t tell whether Mr. Winter read the deeds or not. He examined them and may have read them. The way I knew they were deeds I heard Mr. Price say so.”
The testimony of Von Santen, so far as it has a bearing on the transaction, was as follows: He recites the sale and consideration made by him as guardian in July, 1861, which has already been stated, and denies the receipt of any money from his ward during the war. He gives the letter of Wintér to him, requesting an order for the stock and bonds,, which was as follows :
“Jacksonville, Fla., April 15, 1871.
11 Mr. F. Von Santen, Charleston, S. C.:
“ Mv I)ea*r Sir : 'Since my arrival here Mr. Price informs me that there is bank stock here to the amount of one thousand dollars, half of which is mine. Not long since he took up the said stock for you, having paid $250 for it. The situation in which I am now placed, being without any money at all, urges me to request you to send me an order on Mr. Price for nvy portion, which I should have had, by rights, long ago, * * * * * * * *
“Very truly yours, S. A. Winter.”
“ I replied t,o this letter and sent the order as desired. Smnuel Winter must have known before he came to Florida since the war, and before he received the bonds, that the lands of his father’s estate had been sold, and that Miles Price had purchased the Dell Bluff tract. He has heard it from me and his sister Emma, m/y wife, in 1861, after the sale was made. He has heard it from me and his sister Emma at various times. He was told it by his sister Martha, now Mrs. Haddock, and Mr. Daniel Howell, in, the winter of 1870, at my house.”
Upon cross-examination, this witness says : “ I had no settlement with my ward since his majority. I considered [119]*119him indebted to me, and I thought it was so understood by both parties. I made a full return of all my transactions as guardian, and my accounts were carefully examined and approved by the probate court.”
If the plaintiff knew at the time he received these bonds and stock that they represented his share in the sums due • by the various purchasers of the land, and was aware of the act of his guardiah in executing the deeds, then he caunot now recover a part of the land or the proceeds of sale. Defendant’s statement that the plaintiff knew that the stock .and bonds represented his interest in the land is corroborated by the testimony of his wife, by the witness Adams and all the attending circumstances. The account given of the matter by plaintiff is entirely unreasonable. .The conclusion from his statement is that he went to the defendant’s residence; that while there some papers were shown ; that he was told to get an order from his former guardian, and some stock and bonds would be given him, and that during the whole time he did not ask, nor did Price tell him, what all this was about, or intimate to him on what account and in what manner he was entitled to these moneys. The plaintiff says that Price did not tell him on what account the sum -was due him, nor did he ask him. Winter was at the time thirty years of age, and a man, as his own testimony shows, of business experience. It is not probable that he would expect Price to be making him a present, nor did he have any reason to suppose that Price owed him anything except as the purchaser of this land ; and this he knew, as he states that he knew that Price was in possession, claiming title; and Yon San ten states that Winter was frequently told of Price’s purchase by -himself and by his (Winter’s) sisters. In his letter to Yon Santen he seems to have had some knowledge of the matter. He knows something as to the respective interests of his guardiarr and himself in this stock, and his language implies knowledge of at least the date to which he became entitled to his portion, as he says [120]*120he should have had it by rights long ago. Mrs. Price testifies that plaintiff read the paper handed him byJPrice; and the witness, Adams, states that he examined the deeds. The plaintiff does 'not deny reading the deeds, but says: “ I may have glanced over' some of them, but not sufficiently to get the purport of them.” He says, upon cross-examination : “ I may have read the endorsements.” The endorsements are in a large, plain hand, and it 'was impossible for him tó have read them without knowing that they were instruments of writing from his guardian to the defendant. One of the papers read by him was very brief, was written In a very plain hand, and was as follows:
“ State of Florida, 1
“ County of Duval. )
, “ Be it known to all whom it may concern, that I have this day sold to Miles Price all my right, title, claim and interest as an heir of James Winter, deceased, to tlie assets of said estate, and also, I have, as guardian of Samuel A. Winter, minor, sold his like claim and interest o± said estate to Miles Price. F. Yon Santen.
“Witness : Wm. Jaudon, A. W. DaCosta.”
In his cross-examination he says: “ I cannot swear that there was nothing said between. Miles Price and myself in relation to the Dell’s Bluff place in our conversation. I knew that Miles Price was in possession and claimed title, and I haddieard that his title was not good.” He intimates in his testimony that he thought his guardian owed him, and the connection in which it is stated leaves it to be inferred that he thought the stock was upon this account, , while in another part of his testimony he admits that his former guardian had told him that lie owed him nothing; and his guardian swears that such was the understanding between them. This would seem, to bo probable, as eight years had passed since his-majority, and no action liad ever been taken by him against his guardian. In no event would
[121]*121tlie plaintiff have been entitled to compensation for the increased value of these lands. His right after the sale was limited to the proceeds. The purchasers were entitled to deeds upon making the cash payment. His share of them he and his guardian have received, knowing that what he received represented his interest. If this is not a full settlement, which we think it is, Winter is now certainly estopped from demanding the lands. The cases upon the subject are certainly as strong, if not stronger, than this. (7 S. & M., 409 ; 4 Ind., 259 ; 26 Ala., 452; 2 Rich., 153; 19 Ill., 298; 53 Pen. State, 352 ; 1 Rawle, 163 ; 7 W. & S., 127; 7 Harr., 424; 1 Casey, 282.) With this conclusion a court of equity must regard Price as the owner of all the interest of the plaintiff in the landed estate'of his father, and for that reason there can be no equity in favor of the plaintiff against defendants Hall and Howell, the other purchasers at the sale.
This disposes of all the questions in the case. Judgment reversed.
The judgment of the Circuit Court should have been for the defendants, and the case is remanded with instructions to enter such judgment.