Bank of Wetumpka v. Walkley
53 So. 830
Ala.
1910
Check Treatment
ANDERSON, J.

It has been long and well settled by the decisions of this court that a purchase by a trustee for his own benefit at a sale of the trust property is *652voidable at the option of the cestui que trust, and will be Set aside on timely application made for that purpose; and in the application of this rule it is unimportant whether the purchase be made directly or indirectly, in person or through an intermediary, who subsequently reconveys to the trustee, and without regard to the fairness of the purchase.—Cottingham v. Moore, 128 Ala. 213, 30 South. 784; Charles v. Du Bose, 29 Ala. 367; Calloway v. Gilmer, 36 Ala. 354. The authorities recognize and sanction but a single exception to this rule — that is, that executors and administrators, who have an interest in the property sold, may purchase at a sale of the property of the estate, provided there is no unfairness, and property is exposed for sale under the ordinary mode, and under such circumstances as will command the best price.

It is true the books make a distinction between a void and a voidable sale in the application of the doctrine of innocent purchaser for value, and hold that a bona fide purchaser for value under a voidable sale is protected.—Shook v. Sou. B. & L. Ass’n, 140 Ala. 575, 37 South. 409. This doctrine is not to be questioned, but whether the sale is void or voidable matters not, if the purchaser is not a bona fide one without notice. The bill avers the sale of the land under a decree of the probate court, and which discloses the nature of the guardian’s title, and the bank in purchasing from him had constructive notice of the infirmities of his title — notice that the sale was procured by him as guardian, that he purchased the land at said sale, and that the ward had a right to avoid the same.—Randolph v. Birmingham Co., 104 Ala. 355, 16 South. 126, 53 Am. St. Rep. 64.

While the law permits a minor to avoid such voidable sales upon a seasonable application, he is required to do equity as a condition precedent to relief. He cannot re*653ceive the benefits of a sale and also repudiate same. If he repudiates the sale, he must offer to restore whatever benefits he may have derived from said sale.—Powell v. Powell, 80 Ala. 11; Marx v. Clisby, 130 Ala. 502, 30 South. 517; American Mtg. Co. v. Dykes, 111 Ala. 188, 18 South. 292, 56 Am. St. Rep. 38. The probate record, which is made a part of the bill, shows that the purchase money for the sale of the land was paid into court and ordered paid over to the complainant’s guardian; hut there is nothing to indicate that the guardian got the money, or that it was legitimately spent on the complainant, while a ward, or turned over to him when he became sui juris. While it might be essential to the equity of a hill to offer to restore whatever benefits the complainant derived from the sale, when it appears from the bill that such was the case (Marx v. Clisby, supra, and cases there cited), yet this averment to restore is not essential, when the bill fails to show that complainant derived benefits from the said sale (Gillespie v. Nabors, 59 Ala. 441, 31 Am. Rep. 20; Randolph v. Birmingham Co., 104 Ala. 355, 16 South. 126, 53 Am. St. Rep. 64; Marx v. Clisby, 126 Ala. 107, 28 South. 388). It is true this Glisby Case was criticised upon the second appeal (130 Ala. 502, 30 South. 517), but not as to the principle of equity pleading, but because of the error in holding that the bill did not show that complainants had derived any benefit from the sale.

The decree of the circuit judge, sitting in equity, is affirmed.

Affirmed.

Dowdell, C. J., and Saybe, and Evans, JJ., concur.