¶1On Petition for a Rehearing.
¶2Counsel very earnestly petition for a rehearing in this case, and present two able briefs in which *136they criticise the opinion of the court for holding that the appellants ratified the guardian’s sale of the real estate in litigation and estopped themselves from recovering in this proceeding by accepting and retaking the proceeds derived from the sale after they became adults. From the facts shown by the record, it is evident that the appellants had known, for years prior to the settlement with their guardian, that Edwards, and those claiming under him, as grantees, had been occupying the premises as their own under color of title created by the guardian’s deed and subsequent conveyances. They knew the value of the land and the amount paid for it by Edwards. They also knew that, besides the mother’s interest in the 200 acres in question, she had no real estate except a small piece in Randolph county, inherited from her father, the income of which was $15 per year, that belonged to her at the time of her death.
¶3With a full knowledge of these facts and their rights, they settled with their guardian, in relation thereto, and received from him, in full of the proceeds of the real estate they seek to recover and interest thereon, the sum of $4,146.84. Did, then, the acceptance of the purchase-money, knowing it was the price paid for their land at its full value, confirm the sale and estop the appellants, while retaining it, to assert the right to the land? It is an old, proverb that "you can not eat your cake and have it, too.”
¶4Equity will no more allow the appellants to retain the proceeds of the sale with such knowledge, and claim the land also, than it would allow them with like knowledge, to claim the land and accept the proceeds. They should, if they desired to claim the land, have tendered back to the purchaser, the accepted purchase-money .as soon as they knew the facts. Men are bound by principles of *137common honesty in business transactions, and such laws of conduct are vindicated and sanctioned by the courts.
¶5In Deford v. Mercer, 24 Iowa, 118, the court assumed that a sale made by a guardian was void, but found that before tho plaintiffs had instituted their suit to recover the land sold by their guardian, they had received from him the purchase-money for it, and were estopped to claim the tract.
¶6The court said: “If there is anything well founded in conscience or in law, it is that they are estopped in equity from claiming the land after having voluntarily accepted the money which arose from or was the product of the sale of the land.” France v. Haynes, 67 Iowa, 139.
¶7It is the law of other courts as well, that one who, with knowledge, accepts the proceeds of an unauthorized sale of his property is estopped to dispute the validity of the sale. Schenck v. Sautter, 73 Mo. 46; Moore v. Hill, 85 N. C. 218; Field v. Doyon, 64 Wis. 560; Booth v. Wiley, 102 Ill. 84.
¶8In Hoffmire v. Holcomb, 17 Kan. 378, the court held that where a mortgagor accepted the surplus of the proceeds arising from the sale of the mortgaged premises in a foreclosure proceeding, he was estopped to question the validity of the sale or to recover the land sold. In this connection we cite Walling v. Burgess, 122 Ind. 299.
¶9In Goodman v. Winter, 64 Ala. 410 (436 and 437), the tenant for life was the mother of the remaindermen, and the sale and conveyance was made by her and her husband, the father, the natural guardian of the remainder-men.
¶10The court said: “The wrongful alienation by the tenant for life, while incapable of operating to their injury, clothed them with these several distinct,conflicting rights. If they accepted the investment made by the life tenant, or claimed a lien on the premises conveyed, for the pur*138chase-money the life tenant had received and invested, the wrongful alienation was ratified and confirmed. During infancy the remainder-men were thus clothed with inconsistent and conflicting rights, between which they were incapable of electing, and yet having the right of electing when they attained majority. While an infant can not make an election, a court of equity has undoubted jurisdiction to make an election for him. 1 Lead. Oases Eq. (Part 2), 1169.
¶11“It is also true, that an infant may not create an estoppel; yet, under circumstances, the benefits of a particular transaction may have been so appropriated to his advantage, that he will not be heard to gainsay it. A sale of lands, descended to him, may have been made under an order of court void for want of jurisdiction; the purchaser can not repudiate his contract to pay the purchase-money, unless the infant is brought before a court of equity, and an election made for him whether the sale shall be confirmed or repudiated. Lamkin v. Reese, 7 Ala. 170; Bland v. Bowie, 53 Ala. 153; McCully v. Chapman, 58 Ala. 325; Merritt v. Horne, 5 Ohio St. 307.
¶12“No adult, infant, lunatic, or married woman, can be permitted to receive, hold, and enjoy the proceeds of a sale of property, whether the sale is by an order of a court, irregular and void, or by the wrongful act of an individual, without being estopped from a repudiation of the sale.
¶13“In Commonwealth v. Sherman, 18 Pa. St. 346, it is said, ‘Equitable estoppels of this character apply to infants, as well as adults; to insolvent trustees and guardians, as well as persons acting for themselves; and have place, as well when the proceeds received arise from a sale by'authority of law, as where they spring from the act of the party.’
¶14“Of course, it must appear that the sale is for the *139benefit of tbe infant, or the court would not prevent him from asserting his title, though it would protect the purchaser by decreeing him a lien or trust for the repayment of such sums as had been applied to the benefit of the infant.”
¶15It is true, the doctrine of caveat emptor applies to a purchase at a guardian’s sale. But this has nothing to do with what Edwards believed at the time he was buying the land, nor with his actual good faith in making the investment. The guardian who swore that Mrs. Wilmore owned the land in fee was, in a legal sense, presumed to know the will and the interest which the ward took under it, as was the attorney who prepared the petition and the court which ordered the sale. But these are not controlling facts in this case.
¶16Appellee is now better informed than was his grantor at the time he bought, and rests his title upon the facts that his grantor paid to the guardian the full value of the land, and that they accepted the sum so paid when of full age, with knowledge of their rights and the source from which the money paid and accepted was derived. It would be unreasonable to suppose that Edwards, in paying for the land he bought, giving for it $400 more than its appraised value in fee, was acting in bad faith, because the law, for some purposes, would hold him cognizant of facts of which, in truth, he was ignorant. While he was uninformed of the law governing the construction of the testator’s will and the extent of the title he acquired by his purchase, he evidently believed he was acquiring a good title to the whole of the tract, as the jury have found by their special verdict.
¶17It is doubtless true, in most instances, that equitable estoppels are usually based upon “a fraudulent purpose and a fraudulent result, ’ ’ and if the element of fraud is wanting, there is no estoppel if both parties were equally *140cognizant of the facts and the declarations, or silence produced no change in the conduct of the other, he acting solely upon his own judgment. But such is not the doctrine of this'and kindred cases, because the rule so applied would be inequitable and unjust. This belongs to the class in which it is held that an estoppel may arise upon matters that transpire after the purchase, and on which the purchaser did not make the investment.
¶18Inasmuch as the judgment in this case rests upon the second paragraph of the answer pleading ratification, it is not necessary we should determine the sufficiency of the fourth and fifth paragraphs, which rely upon the statute of limitation as a defense.
¶19Petition overruled.