Daniel v. Stough

Dec 15, 1882

Versions:73 Ala. 379

RRICKELL, C. Ji

— It can not be doubted that a purchase by an administrator at his own sale is voidable at the option of his cestms que trust, seasonably expressed, though he may have acted with- fairness, and made no profit. — James v. James, 55 Ala. 525; Galloway v. Gilmer, 36 Ala. 354. At an early day, in the case of Brannan v. Oliver, 2 Stew. 41, an exception to this rule was adopted, which has since prevailed, though its introduction has been more than once regretted by our predecessors. The exception is of purchases by an executor or .administrator having an interest in the fproqperty sold. Such purchases áre sustained, if the property is exposed to sale in the ordinary mode, under such circumstances that it will command the best price, and there is an absence of all evidence of unfairness. This case does not fall within that exception, for the administrator was without interest in the lands. It was, therefore, ■at the mere option of the heirs to whom the lands descended, whether they would avoid or confirm the sale; and whether the lands sold for more or less than their value, was not-material, fraud or unfairness not being imputed to the administrator.

All the heirs were necessary parties to the bill, having for *381its object the avoidance of the sale ; all had rights and interestswhicli were to be affected and bound by the decree. The refusal of two to join as complainants was a sufficient reason for making them defendants, but will not excuse their omission as parties. The demurrer taken because of their absence was properly sustained; and as the complainants declined to amend, there was no other alternative than to dismiss the bill. As one of the complainants is under the disability of covertu're, and the others are under the disability of infancy, the dismissal ought to have been without prejudice. The decree in this-respect will he here corrected, and as corrected will be affirmed.