By the Court.
Lumpkin, J.,
delivering the opinion.
This is a suit brought by Columbus L. Eedwine and wife, calling upon Daniel W. Shine, the administrator of Eobert F. Glenn, deceased, the father of Mrs. Eedwine, to account, and charging him with multiplied acts of mismanagement; [792]*792and especially with having bought at his own pretended sales, large and valuable portions of the estate, which he now holds, or has appropriated to his own use.
The testimony consists mainly of the defendant’s own answer. Much time has elapsed since the date of these transactions, and we purpose, without going into detail, to discuss the following propositions, to-wit.:
1. Has an administrator in the State the right to buy property at his own sale ?
2. When an administrator has failed to comply with the law in selling property, is he held to a more rigid responsibility, when the property of the estate is purchased by himself, than by other persons?
3. What is the rule or measure of damages when the administrator buys trust property himself and sells it again, and otherwise appropriates it to his own use ?
It is contended by the counsel for the plaintiff in error, that it never has been decided by this Court, that an executor or administrator could not purchase property at his own sale — the transaction being free from all fraud. And it is alleged as error in the Judge, that he refused to charge the jury upon request, that he could so buy, the sale being bona fide, and the trustee the highest bidder.
Let us settle this question in limine.
The case of Worthy and others, against Johnson and others, 8 Ga. Rep., 238, was this:
Thomas Worthy died. His heirs filed their bill against certain purchasers of negroes sold by his executor at public sale, and against the present holders of certain other slaves, that were bought by the executors at their own sale, and which were subsequently sold by the sheriff as the property of the executors. The bill was demurred to on various grounds; and amongst other things, for want of equity, the Court sustained each of the grounds of demurrer, and this decision was excepted to and brought to this Court by writ of error.
Thus it will be perceived that the point was legitimately presented, as to the right of a representative to buy at his own sale. And this Court, upon full consideration, and upon argument and authority, thus disposed of the question— “ Can an executor or administrator become a purchaser at his own sale ?” In some of the States it has been decided [793]*793that such sales are per se void. And the Legislature of this State, by a recent statute in relation to sheriffs, have gone far to sanction this principle. They have not only prohibited sheriffs from buying at their own sales, but declared all such purchases absolutely void; and, in addition, subjected the officer to a public prosecution and severe punishment upon couviction for a violation of the law. And much might be said in support of this statute upon the score of public felony.
“The doctrine, however, maintained as it respects this class of trustees by this Court, is this: that where a purchase is made by a trustee, on his own account of the cestui que trust, although sold at public action, it is in the option of the cestui que trust to set aside the sale, whether bona fide made or not; that it is voidable only, and not absolutely void.” It is added — “ the heirs should make their election within a reasonable time; otherwise, they would be precluded.”
This, then, is the unanimous doctrine held by this Court, notwithstanding obiter dicta to the contrary. And it is the unanimous judgment of the present bench upon this point. We differ merely as to the rule of damages.
The case of Fleming and others against Foran and another, 12 Ga. Rep., 594, goes further. It was then held by a full bench, that “an executor cannot become the purchaser of land sold under an execution against his testator; but the sale will be set aside, however fair and honest, on the application of the legatees, provided such application is made in a reasonable time; otherwise, it will be considered as a waiver or abandonment of the right.”
We commend the reasoning in this last case to careful consideration.
Having disposed of this preliminary question, we would remark, that every other fundamental exception in this case depends upon the settlement of a single principle. It is considered that Shine, the administrator of Glenn — and if it is denied, we are fully warranted by the record in assuming the fact — did not comply with the law, which is the rule of his conduct, in a single particular. He obtained the order ordering the first sale prematurely; the second sale was made after the order had expired — seven years having intervened — and he obtained his letters of dismission on the same [794]*794day that his final return was made. To all intents and purposes, then, so far as he is concerned, and it is the same thing as if he acted throughout without authority or leave, and his liability is to be judged of in the same way; and just here is the point upon which his accountability turas.
Ordinarily, although the trustee fails to observe the requisitions of the law, still, if he can show that no injury resulted to. the cestui que trust, by reason of the irregularity, he will, perhaps, be protected. Not so, however, where he becomes the purchaser of the trust property. And by a firm adherence to this salutary distinction, much mischief will be prevented by laying the axe to the root of the temptation to selfishness. Heirs and legatees do not litigate upon equal terms when they are called upon, as these complainants are, to contest with the administrator the bona fides of transactions which transpired twenty years since. Whether they be false or fair, erroneous or otherwise, all that is required of them is, to show that the order for the sale of the intestate’s negroes was fraudulently obtained and fraudulently executed ; and this they do, when they prove that the administrator utterly failed to comply with the law in each and every instance ; and that he became the purchaser of the property himself — directly, or indirectly through others — under such circumstances, he is chargeable with the present full value of the estate sold under those illegal orders, with interest, and his illegal dismission will not screen him from accounting. Or, if any of the property is still in his possession to convey the same to the complainants — or, if this can only fee effected by a sale — to distribute the moiety of the proceeds to which the complainants are entitled.
In this way only can the stern policy be maintained, which the law adopts to guard the rights of infants from invasion, and which it will not allow to be disregarded, or set at nought with impunity.
And it is in vain for the administrator to seek to shield himself behind the ex parte proceedings of the Ordinary. These cannot shelter the trustee from the irregularity in his actings and doings. The Court presumes any thing right. The party acts at his peril, if it is not. If the Court is wanting in vigilance, the party must not be wanting in duty.
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By the Court.
Lumpkin, J.,
delivering the opinion.
This is a suit brought by Columbus L. Eedwine and wife, calling upon Daniel W. Shine, the administrator of Eobert F. Glenn, deceased, the father of Mrs. Eedwine, to account, and charging him with multiplied acts of mismanagement; [792]*792and especially with having bought at his own pretended sales, large and valuable portions of the estate, which he now holds, or has appropriated to his own use.
The testimony consists mainly of the defendant’s own answer. Much time has elapsed since the date of these transactions, and we purpose, without going into detail, to discuss the following propositions, to-wit.:
1. Has an administrator in the State the right to buy property at his own sale ?
2. When an administrator has failed to comply with the law in selling property, is he held to a more rigid responsibility, when the property of the estate is purchased by himself, than by other persons?
3. What is the rule or measure of damages when the administrator buys trust property himself and sells it again, and otherwise appropriates it to his own use ?
It is contended by the counsel for the plaintiff in error, that it never has been decided by this Court, that an executor or administrator could not purchase property at his own sale — the transaction being free from all fraud. And it is alleged as error in the Judge, that he refused to charge the jury upon request, that he could so buy, the sale being bona fide, and the trustee the highest bidder.
Let us settle this question in limine.
The case of Worthy and others, against Johnson and others, 8 Ga. Rep., 238, was this:
Thomas Worthy died. His heirs filed their bill against certain purchasers of negroes sold by his executor at public sale, and against the present holders of certain other slaves, that were bought by the executors at their own sale, and which were subsequently sold by the sheriff as the property of the executors. The bill was demurred to on various grounds; and amongst other things, for want of equity, the Court sustained each of the grounds of demurrer, and this decision was excepted to and brought to this Court by writ of error.
Thus it will be perceived that the point was legitimately presented, as to the right of a representative to buy at his own sale. And this Court, upon full consideration, and upon argument and authority, thus disposed of the question— “ Can an executor or administrator become a purchaser at his own sale ?” In some of the States it has been decided [793]*793that such sales are per se void. And the Legislature of this State, by a recent statute in relation to sheriffs, have gone far to sanction this principle. They have not only prohibited sheriffs from buying at their own sales, but declared all such purchases absolutely void; and, in addition, subjected the officer to a public prosecution and severe punishment upon couviction for a violation of the law. And much might be said in support of this statute upon the score of public felony.
“The doctrine, however, maintained as it respects this class of trustees by this Court, is this: that where a purchase is made by a trustee, on his own account of the cestui que trust, although sold at public action, it is in the option of the cestui que trust to set aside the sale, whether bona fide made or not; that it is voidable only, and not absolutely void.” It is added — “ the heirs should make their election within a reasonable time; otherwise, they would be precluded.”
This, then, is the unanimous doctrine held by this Court, notwithstanding obiter dicta to the contrary. And it is the unanimous judgment of the present bench upon this point. We differ merely as to the rule of damages.
The case of Fleming and others against Foran and another, 12 Ga. Rep., 594, goes further. It was then held by a full bench, that “an executor cannot become the purchaser of land sold under an execution against his testator; but the sale will be set aside, however fair and honest, on the application of the legatees, provided such application is made in a reasonable time; otherwise, it will be considered as a waiver or abandonment of the right.”
We commend the reasoning in this last case to careful consideration.
Having disposed of this preliminary question, we would remark, that every other fundamental exception in this case depends upon the settlement of a single principle. It is considered that Shine, the administrator of Glenn — and if it is denied, we are fully warranted by the record in assuming the fact — did not comply with the law, which is the rule of his conduct, in a single particular. He obtained the order ordering the first sale prematurely; the second sale was made after the order had expired — seven years having intervened — and he obtained his letters of dismission on the same [794]*794day that his final return was made. To all intents and purposes, then, so far as he is concerned, and it is the same thing as if he acted throughout without authority or leave, and his liability is to be judged of in the same way; and just here is the point upon which his accountability turas.
Ordinarily, although the trustee fails to observe the requisitions of the law, still, if he can show that no injury resulted to. the cestui que trust, by reason of the irregularity, he will, perhaps, be protected. Not so, however, where he becomes the purchaser of the trust property. And by a firm adherence to this salutary distinction, much mischief will be prevented by laying the axe to the root of the temptation to selfishness. Heirs and legatees do not litigate upon equal terms when they are called upon, as these complainants are, to contest with the administrator the bona fides of transactions which transpired twenty years since. Whether they be false or fair, erroneous or otherwise, all that is required of them is, to show that the order for the sale of the intestate’s negroes was fraudulently obtained and fraudulently executed ; and this they do, when they prove that the administrator utterly failed to comply with the law in each and every instance ; and that he became the purchaser of the property himself — directly, or indirectly through others — under such circumstances, he is chargeable with the present full value of the estate sold under those illegal orders, with interest, and his illegal dismission will not screen him from accounting. Or, if any of the property is still in his possession to convey the same to the complainants — or, if this can only fee effected by a sale — to distribute the moiety of the proceeds to which the complainants are entitled.
In this way only can the stern policy be maintained, which the law adopts to guard the rights of infants from invasion, and which it will not allow to be disregarded, or set at nought with impunity.
And it is in vain for the administrator to seek to shield himself behind the ex parte proceedings of the Ordinary. These cannot shelter the trustee from the irregularity in his actings and doings. The Court presumes any thing right. The party acts at his peril, if it is not. If the Court is wanting in vigilance, the party must not be wanting in duty.
As to the measure of damages, then, we think it not clear that the complainants are entitled to recover the present value [795]*795of the negroes which he has sold or given away, with hire. In Bell vs. Bell and others, (20 Ga. Rep., 250,) every thing was regular. Still, for the purpose of discouraging fraudulent administrations, procured by the trustee for the selfish purpose of possessing himself of the intestate’s property, and not for the benefit of the heirs and creditors. This Court held the trustee responsible for the value of the land at the time of filing the bill, with interest. (See also Daniel vs. Sapp, ib. 574.
And the cases in the books go even beyond this, and allow the jury to give special damage, beyond even the original value of the chattels (3 Burr, 1363; 2 Black. Rep., 902; 1 Atkin, 429.) Even when the trustee has not acted from unfair motives, still, if he has sold the property contrary to his trust, he will be decreed to pay the utmost value. If he still holds the property, he will be compelled at the election of the cestui que trust, to convey it. The rule is different between breaches of contract and breaches of trust, as regards damages.
It may be said that in Dorsett vs. Frith, 25 Ga. Reports, p. 537, we held an execution de son tort only liable for the purchase money with interest. Mark the difference — Frith was not a purchaser at his own sale; he owned an interest in the slave sold by him ; and while his conduct was characterized by the utmost good faith throughout, that of the adverse claimant was oppressive in the extreme. And, yet, Judge McDonald dissented from the rest of the Court, even in that case, on account of the rule as to the damages being too indulgent.
But, admitting the law to be as we have laid it down, it has not been observed by the jury in making up their decree, as the calculation demonstrates. Allow to complainants the enhanced value of Pool, Charlotte and children, the negroes sold, and how stands the account ?
SHINE. Cr.
By total amount of debts paid as per all his returns..$7,401 70
LESS ASSETS AS FOLLOWS:
Sale of perishable property..................$1,481 62
Hire of negroes returned..................... 320 75
Notes and accounts collected................ 227 57
[796]*796Account of negroes when sales are affirmed :
Man Bell sold for...........................'.. 465 00
Lydia and child............................... 861 00
Harriet.......................................... 626 00
Henry............................................ 400 00
--$4,383 74
Net balance of debts......................... 3,017 96
Add interest at 8 per cent.................. 4,828 60
$7,866 56
SHINE. ' Dr.
Harriet and 7 children, value and hire (by Paul)...$5,562 00
Pool........................................................ 3,167 00
Esther and two children................................. 3,060 00
Charlotte and child, (by McAllen).......... 4,500 00
Guilford, hire only, (by Paul)........................... 2,200 00
Henry, Blacksmith....................................... 4,000 00
Wiley...................................................... 1,667 00
Mary....................................................... 700 00
Charles..................................................... 1,575 00
$26,451 00
Deduct debts and interest as above............... 7,845 56
Net balance............................................$18,604 44
One-half to complainants...........................$ 9,302 22
So ought to have been the verdict upon the maximum hypothesis. We take the statement, not allowing complainants the enhanced value of Pool, Charlotte and children :
SHINE. Cr.
Total debts as before........................ $7401 70
Credit as previous statement...............$4,383 74
Add Pool’s sale.............................. 250 00
Charlotte....................................... 365 00
Profit on the resale of two last............ 184 00 $5,182 74
Net balance of debts........................ 2,218 76
Interest on this sum at 8 per cent......... 3,548 40
$5,767 16
[797]*797SHINE. Dr.
To sale and hire as by former statement, $26,451 00
Less Pool’s value and hire..............$3,167 00
Charlotte and children................... 4,500 00 $7,667 00
Net value and hire, leaving out Pool
and Charlotte........................... 18,784 00
Deduct debts and interest as his former calculation......................... 5,767 16
Total net debit...................... $13,006 84
One-half to complainants.............................. $6,508 42
The verdict of the jury is for $6,500 00, being just $8 42 too small, after leaving out Pool and Charlotte, which the jury undoubtedly did. It will be noticed, too, that no interest is calculated on the hire, which ought to be regarded as falling due annually. This would largely increase the amount.
So, then, under any view of the law, there is no earthly pretext for granting a new trial.
It only remains to add, that, in the opinion of the Court, Shadrach Ware was not disqualified on the score of interest from testifying in behalf of complainants on the trial of this case. True, he married the widow of Glenn and the mother of the complainant, Mrs. Redwine; but he will neither be gainer or looser by the event of this suit. Neither can the decree rendered be given in evidence for or against him on any other trial..