Frazer's Executors v. Lee

JUDGE, J. The charge of fraud in the sale of the lands by Allen Frazer, is denied by the responsive allegations of the answer, which are to be taken as true; the cause having been heard on bill and answer without testi [28] mony, and an answer under oath not having been waived. (Code, § 2902.) Frequent adjudications have been made by this court, upon the question of purchases by executors and administrators at their own sales; and the rule clearly established by them is, that an executor or administrator, having an interest in the estate, may purchase at his own sale, provided- it is fairly conducted. — Saltmarsh v. Beene, 4 Porter, 283; McLane v. Spence, Adm'r, 6 Ala. 894; McCartney et al. v. Calhoun, 17 Ala. 301; Payne v. Turner, 36 Ala. 623. In the present case, it is alleged in the bill, and admitted in the answer, that Frazer had no interest in the lands sold, coupled with the trust which devolved upon him as administrator ; and this leaves him standing as an ordinary trustee, who has purchased at his own sale. The well settled rule in such cases, is, that, notwithstanding the sale, the cestui que trust may still look upon the property as bound by the trust, and may apply, within a reasonable time, to have a re-sale, without showing any injury to his rights, or benefit to the trustee.- — Cunningham's Andm’rs v. Rogers, 14 Ala. 147; 1 Story’s Eq. 317. As we held in Charles v. Duboise, 29 Ala. 371, “the purchase by a trustee at his own sale, is simply voidable, at the option of the cestui que trust, seasonably expressed; and it is totally immaterial that the trustee has acted with fairness, and made no profit.” See also, Andrews et al. v. Hobson's Adm’r, 23 Ala. 219. The appellees are minors, and we must hold they have made “seasonable application” to set aside the sale. There is no error in the decree, and it is affirmed.