(202 P.)

of the premises about April 1, 1908, and since [ proceedings, and defendants cannot maintain that time have held possession and farmed said collateral attack; that the testimony the land; that this suit was commenced by shows that Frank Cammann, the maker of the plaintiff on March 9, 1918; and that defend- note to Arley Acton, had become of age prior ants have therefore acquired no title to the to the time of his death, and had not disaffirmed his obligation to pay said note, and premises by virtue of adverse possession or had specifically promised in writing to pay

the statute of limitations.

The court further found in detail the proceedings in regard to the administration of the estate of Frank Cammann, deceased, the sale of the one-third interest in the land by Arley Acton as administrator to satisfy the note for $394 and interest with a credit thereon of $90; the approval of the claim by Arley Acton as administrator, on July 22, 1909; the approval thereof by the county judge of Malheur county, Or., in 1909, but that through inadvertence and mistake the approval of such claim was not made a matter of record; that after the expiration of the term of office of the then county judge, based upon the affidavit of the former county judge, the succeeding county judge made and entered an order approving the claim as

of date 1908; that the sale of the land was made by the administrator June 1, 1914, in accordance with the order of the county court and in conformity with the published notice thereof; that plaintiff purchased the property for the consideration of $1,000, $250 cash and by giving a mortgage on the real property to the administrator for $750; that the sale by the administrator was regularly approved and confirmed; that in June, 1914, Arley Acton, as such administrator, by direction of the county court, duly executed and delivered to plaintiff his administrator's deed to the real property; that the deed was duly recorded; and that the administrator duly filed his final account which was approved by the county court, and he was discharged as administrator of the estate. The court also found:

the said note after the said Frank Cammann. had become of legal age.

"That defendants have at no time offered, nor have they pleaded in this case, their willingness to pay the debts that have been satisfied by the sale of said real property, and that said sale could not in any event be invalidated so as to defeat the payment of the just claim of Arley Acton, and indebtedness against the estate," and that by reason of the wrongful withholding of said property by defendants plaintiffs have been damaged in the sum of $450.

P. J. Gallagher, of Ontario, for appellants.
R. W. Swagler, of Ontario, for respondent.

BEAN, J. (after stating the facts as above). Counsel for defendants upon this appeal submit, and support by a wealth of

authorities that

"If the county court, in the guardianship matter, secured jurisdiction of the subjectmatter, the sale by the guardian to Fred Cammann was valid, and if there were any defects, either in the service of the notices or the failure to serve notices, they were cured by the order confirming the sale, and cannot be collaterally attacked."

With this general principle counsel for plaintiff agrees, but claims that the real property of a testator descends to the heirs subject to the testator's debts, and that the grantee of the heirs of Frank Cammann, deceased, stands in no better position than the heirs themselves; that the sale under order of the county court by the administrator to pay the debts of the testator may completely divest the heir or grantee of the title to "That defendants are barred and estopped such real property-citing section 10125, Or: from questioning the proceedings so had, com-L.; Worley v. Taylor, 21 Or. 589, 28 Pac. menced, and concluded in the county court of

903, 28 Am. St. Rep. 771;

Re Estate of

Houck & Meyer, 23 Or. 13, 17 Pac. 461; Stadelman v. Miner, 83 Or. 348, 155 Pac. 708, 163 Pac. 585, 983.

[1, 2] It appears from the record that the adverse possession of the real property involved, held by the defendants, lacks four days of the statutory period of ten years required to obtain title to land by prescrip

tion.

the state of Oregon for Malheur county in the matter of the estate of Frank Cammann, deceased, for the reason that the petition for the sale of said real property so filed by said administrator was in all respects regular and in proper form, and that the petition is the basis of sale and the order constitutes the decree of the court; that the petition filed therein stated all jurisdictional facts, and the order and decree of said court could not be questioned, except in a direct appeal from the origBefore April 1, 1908, or for the four inal decree, and that defendants did not appeal days mentioned, and for some time prior from the order of said court; that defendants thereto, the land was in possession of Fred are barred and estopped from questioning as W. Cammann, who was owner of one-third to whether the claim of Arley Acton had been thereof. His brother Cleve Cammann owned allowed or approved by the said county court, one-third and the minor heirs of Frank because said question is settled by the order Cammann, deceased, owned one-third of the of said court, based upon the due and regular petition of the said Arley Acton; that the 225 acres of land which was formerly owned attempt made by defendants in this proceeding by Philip Cammann, the grandfather of the to attack the validity of said proceedings is a minor heirs. Therefore the possession of the collateral attack upon the validity of said land was in Fred W. Cammann as a coten

ant who held the same for the other cotenants. 2 C. J. p. 75, § 56. Although the heirs of Frank Cammann, deceased, held possession of the land belonging to the father's estate, such possession was not adverse to a purchaser at an administrator's sale for the payment of debts, for the reason that such heirs take subject to the payment of the ancestor's debts. The law is tersely stated in 1 Cyc. 1055:

"Possession of heirs is not adverse to a purchaser at an administrator's sale for the payment of debts, because they take subject to the payment of the ancestor's debts."

"Heirs cannot acquire title to the land descended, as against the debts of the ancestor, by a claim of adverse possession as against

the title descended."

It is further contended by the plaintiff that, the administrator's sale of the land in question, having been made by authority of the county court which had complete jurisdiction, and the sale confirmed, such proceedings cannot be assailed in this suit for the reason that it is a collateral attack. This claim is in conformity to the holding of the trial court, and we think is the first question for consideration.

Turning to authorities cited in plaintiff's brief, the case of Morrill v. Morrill, 20 Or. 96, 101, 25 Pac. 362, 364 (11 L. R. A. 155, 23 Am. St. Rep. 95), contains a discussion of what constitutes a direct or collateral attack upon a decree of court. Mr. Justice R. S. Bean there said:

"In fact, the writer is of the opinion (though not conceded by many courts) that any attack which has for its object the setting aside and vacating of a judgment is a direct attack, ceeding. Any attack the object and purpose whether in the same or an independent proof which is to avoid the judgment, leaving it to stand as the judgment of the court which pronounced it, is a collateral attack. Thus an action in equity to vacate and set aside a judgment is a direct attack; it directly attacks the judgment. An action to restrain proceedings under the judgment or to prevent the enforcement thereof is a collateral attack."

Christensen v. Lane Co., 90 Or. 401, 175 Pac. This rule was approved by this court in 845, where it was held that a complaint seeking to remove a cloud upon the title, and to set aside an order of the county court opening a road across plaintiff's land, is not a collateral attack but a direct attack upon the order of the county court. In Lieblin v. Breyman Leather Co., 82 Or. 22, 160 Pac. 1167, this court held that a suit to cancel a judgment and to enjoin the enforcement thereof by execution against land of which plaintiff claims to be the owner is a direct. and not a collateral, attack upon the original judgment.

[3] The essential allegations in a suit in equity for the purpose of annulling or setting aside a judgment or decree are usually contained in the complaint, instead of in an answer as in the case at bar. Section 390. Or. L., authorizing a defendant, in an action at law where the defendant is entitled to "A collateral attack on a judgment is any relief arising out of facts requiring the inproceeding which is not instituted for the ex- terposition of a court of equity, and matepress purpose of annulling, correcting, or mod-rial to his defense, to set such matter up by ifying such decree. 12 Am. & Eng. Ency. of answer, plainly declares that equitable reLaw, 177. The fact that the parties are the lief respecting such matter of suit may thus same, and that the plaintiff seeks to attack be obtained by answer, and equitable dethe decree by the allegation of the reply, canfenses to new matter contained in the annot change the rule or make the attack any swer may be asserted by reply. The statute the less a collateral one." I also declares that

In the case of Yeaton v. Barnhart, 78 Or. 257, 150 Pac. 745, one of the latest decisions of this court upon the subject, among other things, this court said:

"The parties shall have the same rights in such case as if an original bill embodying the defense or seeking the relief prayed for in such answer or reply had been filed."

"The county court, having ordered a sale of The statute therefore in such a case, the premises, necessarily decided that juris- where matters are set up entitling a defenddiction of the subject-matter over which its

authority extends had been secured in a pro-ant to equitable relief, gives such defendant ceeding based upon a proper allegation of the same right as though he were plaintiff the facts requiring an exercise of its power; in the suit, and also gives the plaintiff the and, it being thus competent to determine whether or not the facts set forth in the petition to sell the real property to pay the debts incurred by the deceased were adequate, the determination is conclusive against all the world, unless reversed on appeal or avoided for fraud in a direct proceeding. Woerner, Am. Law of Adm'n (2d Ed.) § 145. *

same right as though he were defendant in such suit. The question does not depend upon which of the parties first reaches the courthouse and files his pleading. An important change in the practice in this respect was incorporated into section 390 by an "amendment in 1917.

As to whether an attack upon a judgment or decree is direct or collateral, the rule is stated thus in 1 Bailey on Jurisdiction, 140:

[4] The answer referred to above unquestionably attacks the proceedings of the probate court and the acts of Arley Acton as administrator in obtaining an allowance of

(202 P.)

his claim and selling the real estate to sat- [ June 1, 1914, by order of the county court isfy the same. We do not understand that after issuance and service of citations and this is questioned by the counsel for plaintiff; but it is contended upon behalf of plaintiff that the attack upon the probate proceedings made by defendants in their answer is a collateral one. Tested by the authorities above referred to, the answer which is in the nature of a complaint in equity is a direct attack upon the probate proceedings in question.

Acton also testified thus:

"Q. You took the mortgage on the place for the $750? Then when she paid this mortgage off, Mr. Acton, did she pay you or did you just give her credit and consider that to be in the business? A. She paid me.

"Q. How? A. She paid me the money. "Q. A check or currency or how? A. It was currency.

"Q. Now where did she get this currency from? Was that about the same procedure as before? A. Well, she had sold some steers

and some cows.

"Q. Some of that partnership property that she and you had together? A. Yes. * * "Q. How did she pay you? You say she gave you currency then for the $750 and the interest? A. Yes, sir. *

"Q. Did you make any attempt to get the rent, issues and profits from that land from 1908 up until 1914? A. No, sir.

"Q. And these cattle that you sold, you had an interest in them, the cattle you sold to Chet Stallard? A. Yes, sir, it wasn't any-"

there is a conflict between duty and self-interest. The law will not allow the matter of selfgain to stand as a temptation to misconduct in the discharge of the duty growing out of the fiduciary relation. A trustee will not be permitted to subject himself to the temptation which arises out of the conflict between the interest of a purchaser and his duty as a trustee"-citing authorities.

In a note to Haymond v. Hyer (W. Va.) 92 S. E. 854, L. R. A. 1918B, 1, at page 7, we find the following:

"The rule is almost unanimous, both in the United States and the British Empire, that an administrator or executor may not purchase at his own sale of the property belonging to the decedent's estate. In some of the states this rule of the common law has been embodied in statute. Section 1276, Or. L. The rule is an application of the general rule against the purchase by trustees of property belonging to the trust estate. It is founded upon the unfairness that is likely to follow upon a sale in which the same person is both vendor and purchaser. Lead us not into temptation' has been said to be the underlying principle. Accordingly the presence of actual fraud in the transaction is not necessary to render the sale improper."

Cattle owned in the same way were sold to pay the balance of the purchase price of the land secured by mortgage. A construction of the testimony as favorable to plaintiff as can be made is that the joint property of the husband and wife was used to pay for the real estate in question. Section 1276, Or. L. provides, among other administrator of the estate of a deceased things, that

"The order of confirmation of sale in this chapter mentioned is conclusive as to the regularity of the sale, and no further. All purchases of the property of the estate by an executor or administrator, however made, whether directly or indirectly, are prohibited, and if made are void."

We think the testimony shows that the sale of the real property in question was made for the benefit of the administrator and comes within the prohibition of section 1276. The sale of the real estate in question made by Arley Acton as administrator of the estate of Frank Cammann, deceased, to Delia Acton, his wife, was made indirectly to Arley Acton himself, and was void. There fore the plaintiff has no title upon which to maintain this action. Lombard v. Carter, 36 Or. 266, 59 Pac. 473; Marquam v. Ross, 47 Or. 374, 404, 78 Pac. 698, 83 Pac. 852, 86 Pac. 1; Haymond v. Hyer, 80 W. Va. 594, 92 S. E. 854, L. R. A. 1918B, 1; Lagger v. Mutual Union Loan & Bldg. Ass'n, 146 Ill. 283, 33 N. E. 946.

[6] Among all of the trusts, that of a person occupying the position of an executor or

person should be held to a strict compliance with the statute prohibiting a purchase of the property of the estate, either directly or indirectly, by such executor or administrator, and a court of equity should hold such a sale, if made, void, as the statute declares it. An order of confirmation of a sale made in contravention of the statute is conclusive

only as to the regularity of the proceeding of sale. A court of chancery, when the matter is properly brought before it, should not permit the property of minor heirs to be wrongfully taken from them in violation of

the law.

[7] The trial court, in ruling upon this point, recognized the effect of the statute, expressing the opinion that, when the wife, having purchased the property, continued to hold the same in her own name, and not transfer it to the administrator, the presumption was she had purchased for herself. However this presumption may be, the testimony clearly shows that the purchase was made for the benefit of the administrator. While the fact that a reconveyance to the administrator would perhaps be conclusive evidence that the sale was made for his benefit, we do not think that is the only manner of showing that a sale is made by an ad"The fiduciary character of the purchaser, ministrator indirectly for his own benefit. when the circumstances are such that to al- Otherwise all that would be necessary in such low him to purchase for himself would tempt him to act for the protection of his own in- case, in order to circumvent the statute, terest and the consequent injury of those would be for the wife to make the purchase whom, as trustee, he is bound to protect and of the real estate sold by her husband as serve, will be sufficient. It is enough that administrator and hold the same until the

In Marquam v. Ross, 47 Or. 404, 83 Pac. 859, this court, speaking by Mr. Justice R. S. Bean, used this language:

(202 P.)

The sale in the executor or administrator for the amount so held."

statute of limitations has run.
question was clearly in violation of our stat-
ute.

"It has also been held that a decree for the sale of land to pay debts is not res judicata as to the validity of the debts and the insufficiency of personal property to pay them as against the heir or his successor in interest, who may contest a motion to revive such order of sale on the ground that the debts are barred by the statute of limitations." 11 R. C. L. 380, § 454.

[8] It is contended upon behalf of plaintiff that the defendant should have offered to compensate plaintiff for the amount paid for the real estate, or that plaintiff should be subrogated to the rights of the creditor of the estate if the sale is set aside. The authorities do not appear to be agreed as to a bona fide purchaser having such a right; many authorities holding that the right of As we read the record, from the inception subrogation on a void sale does not exist. of the transaction when Arley Acton unloadThe authorities are practically unanimous ed his portion of the ill-gotten gain in the in support of the doctrine that this right does not exist where fraud has entered into the transaction. It is stated in 11 R. C. L. p. 377, § 450, that

"It should be recognized that the right of subrogation in the jurisdictions in which it is recognized is an equitable right, subject to being forfeited by any fraud or wrongful conduct of the purchaser."

horse business upon Frank Cammann, the whole matter is steeped in fraud. The court of equity should not vary the rule in order to recompense Arley Acton in the matter. That would be the effect of subrogating plaintiff to his right as a creditor of the estate.

The plaintiff should look to Arley Acton, her husband, for reimbursement if she has

In Huse v. Den, 24 Pac. 790 (85 Cal. 390, 20 expended any of her money in the purchase. Am. St. Rep. 232), the syllabus reads:

We read in 11 R. C. L. p. 376, § 499:

"It may be noted in this connection that, in order to assert an equity of subrogation in property that has been sold at an administrator's sale, the facts must be pleaded, and that when the purchase money derived from the sale has not been paid out of the hands of the personal representative in liquidation of debts, but remains in his hands, the purchaser, instead of being entitled to subrogation against the heirs, will be entitled to a decree against

It is doubtful if a dollar changed hands in the transaction. The land is attempted to be applied in satisfaction of the administrator's note, which should have been acted upon while Mr. Fairman was administrator of the estate, and probably would have been if it had been a valid claim.

The briefs of counsel upon both sides are thorough and complete, and furnish all asWe have sistance that could be expected. examined the record with care.

The decree of the circuit court will be reversed, and one entered setting aside the sale and deed of the administrator of the one-third interest in the land and quieting the title of defendants to the real property described in the answer herein.