Welsh v. McGrath

• Decision Date: 18 October 1882
• Citation: 13 N.W. 638,59 Iowa 519
• Parties: WELSH v. MCGRATH.
• Court: Iowa Supreme Court

59 Iowa 519

13 N.W. 638

WELSH

v.MCGRATH.

Supreme Court of Iowa.

Filed October 18, 1882.

Appeal from Des Moines circuit court.

P. H. Smyth, for ____.

Hall & Houston for ____.

Opinion upon rehearing.

DAY, J.

Upon the petition of plaintiff a rehearing was granted upon the fourth point of the foregoing opinion. It is insisted that Ann McGrevy stood in such a fiduciary relation to the property in question that she could not acquire a good title, even through purchase from one who could acquire a good title. The authorities cited by plaintiff's attorney do not, as we understand them, sustain this position.

The case of Silverthorn v. McKerster, 12 Pa. St. 67, is directly in point in support of the opposite doctrine. That was a case where executors, under a power given to sell lands, sold to one Burns, and Silverthorn, one of the executors, afterwards purchased from Burns. The court say: “As, then, Burns was, by the sale, invested with an estate recognized by our laws, there was nothing to hinder him from selling and conveying it to whomsoever he pleased. Nor is there anything in the law or the transaction itself to prohibit Isaac Silverthorn from becoming the purchaser. There is no suggestion of mala fides in the sale made by the executors to Burns, and it is clear that, in the absence of fraud, one who has sold an estate as trustee may afterwards fairly repurchase it for himself. Painter v. Henderson, 7 Barr, 48.”

It is further insisted that Ann McGrevy being found in possession of the title, the burden is thrown upon her to show that she acquired her title from a bona fide purchaser. The abstract of title set forth by the defendent in her answer shows that the property in controversy was sold under execution to J. W. Heisey and Charles O'Brien, who assigned the certificate of purchase to Mary McGrath, and she to Ann McGrevy. From the exhibits attached to the replication it appears that Charles O'Brien was one of the administrators of the estate of William Welsh, deceased.

In Fleming v. Foran, 12 Ga. 594, it is held that an executor cannot become the purchaser of land sold under execution against his testator, but that the sale will be set aside on the application of the legatees, provided such application be made in a reasonable time, otherwise the right will be considered waived or abandoned. The reasoning adopted in this opinion is quite satisfactory, and the rule established is, we think, the proper one. See, also, Spindler v. Atkinson, 3 Md. 410.

Under the rule recognized in Fleming v. Foran, supra, a purchaser by an executor under an execution against his testator is not void, but simply voidable at the election of...