Ebelmesser v. Ebelmesser

Mr. Justice Walker delivered the opinion of the Court: Appellants do not, on this appeal, contest the findings of thé court below, but claim that, admitting them to be true, they do not support the decree. It is insisted that, conceding the facts authorized the court to set aside the sale, ■ it could not be done without refunding the money paid by the administrator and applied to payment of the debts of the estate, all taxes paid on the land, with interest, and for all improvements made on the land, and the court erred in not having an account stated and rendering a decree for the amount found due to him, and making it a charge on the land. It is conceded (but if it were not, the doctrine is firmly established,) that an executor or administrator has no power to purchase property at his own sale; and being prohibited, he can not do so indirectly, by an agent, as the purchaser. See Miles v. Wheeler, 43 Ill. 128; Kruse v. Steffens, 47 id. 114; Thorp v. McCullum, 1 Gilm. 614; Coat v. Coat, 63 Ill. 73. And these cases are in harmony with the current of authority, both British and American. It is held that such a purchase is not void, but voidable; that where the heirs file a bill to set aside the sale, the executor or administrator will be treated as a trustee, and as such is entitled to have an account stated, as any other trustee; that he must account for rents and profits received from the trust property, or, if converted into money, then for the money, with interest. On the other hand, he will be credited with moneys paid for taxes, for money paid on the purchase and applied to the payment of debts against the estate, with interest on such advances, and for necessary repairs. Such is the doctrine of the cases referred to above. In failing to have such an account taken, the court below erred. It is also said that appellants should have been allowed for improvements placed on the land. In the case of Kinney v. Knoebel, 51 Ill. 112, where Morrison had purchased a large and valuable tract of land, worth $35,000 or upwards, under a small execution against deceased, which was done under an arrangement with the executor and creditors, to avoid the necessity of applying to the court for an order for the sale of the property to pay the debts, it was held the sale was void. It was also held that the sale should be set aside and cancelled; but, as a condition to the cancellation, the heirs were required to refund the purchase money, with interest, all taxes paid on the land, and for all proper, lasting and valuable improvements. In that case it was held the sale was made without power, and void, yet Morrison had those allowances made to him. We think the principle announced in that case governs this question, and that appellants should be allowed for reasonable and proper improvements placed upon the land, and which have enhanced its value. But if the improvements made were unreasonably expensive or unsuitable, no allowance should be made for them; but in no event can allowances for improvements be made beyond the actual increase of the value of the land, as ascertained by its sale. Such a purchaser can not be allowed to make improvements that work loss or injury to the heirs. He can be allowed no more than the enhanced value received on the sale of the land. It is urged", that as complainants did not ask for an account it is improper to have one stated, The power, and even the duty, of a court of equity, in this class of cases, to impose equitable terms in granting relief, is undoubted. It is a maxim as old as the court of equity itself, that a person who seeks equity must do equity; and equity requires that appellants should have the money advanced on the purchase and paid to the creditors refunded to them, as well as all taxes paid on the lands since their purchase, and outlays for proper, lasting and valuable improvements, to the extent of the increased value received on the sale. The court below erred in not ascertaining the sum thus paid, and declaring it a lien on the property. If, on a statement of an account, after charging appellants with rents and profits received from the land, it appears that appellants, or either of them, have paid money on the purchase by Humpeler, — have paid taxes and made improvements that are proper to be allowed, — the court will charge the balance on the land, and allow appellees to redeem it by paying the amount, within a reasonable time to be fixed by the court, and on their failure to thus pay the same, order it to be offered for sale by the master, after proper notice shall be given; but he will be required to offer it at the price thus charged against it, and if any advance shall be made above that sum he shall strike it off to the highest bidder, but if no such advance shall be made, then to knock it off to appellants, as purchasers. The decree of the court below is reversed and the cause" remanded. Decree reversed.