¶1By the Court "William E. Allison, the Defendant in error, executed a mortgage upon the premises in question to Rachel A. Baldwin, in her life time. She subsequently died, and Silas H. Baldwin, the Plaintiff in error, was appointed sole administrator of her estate. In the course of the settlement of the estate, he commenced a foreclosure of the mortgage given by William E. Allison, by advertisement under the statute. The notice was in the ordinary form, and signed ■ “ Silas H. Baldwin, administrator of the estate of Rachel A. Baldwin, the said mortgagee deceased,” and also -by the Sheriff of the county of Dakota, where the mortgaged premises were situated. The sale was advertised to be made on the sixth day of March, 1858, and on the fifth day of that month the administrator was removed by the Probate Court of Dakota county, but appealed from the order removing him, which order was subsequently set aside. On the removal of the administrator, a special administrator was, on the sixth day of March, appointed for the estate. The land was sold under the mortgage, and purchased by Silas H. Baldwin, for himself, who commenced this proceeding to obtain possession.
¶2The court below held the notice of sale to be insufficient, because it did not set out the death of Rachel A. Baldwin, and the appointment of Silas H. Baldwin as her administrator, evidently regarding these facts as tantamount to an assignment of the mortgage, and as placing the administrator in the position of an assignee of the same. This position is not well taken. The statute (Comp. Stats., p. 644, see. 5,) in providing that “ every notice shall specify the names of the mortgagor and of the mortgagee, and the assignee, if any,” has reference only to such assignments as are the subject of contract, and *30are made by act of tbe parties. Tbe signature of tbe administrator, with the affix which appeared with it, was all that was necessary tó mate the notice good under the statute in that respect.
¶3The court also held that if the proceedings had been regular in that respect the sale was void, because the administrator purchased the property in his own right. It would be adding but one more decision to the long and unvarying series of cases now in the books, for us to hold that a purchase by a trustee of the property of the cestui que trust is voidable at the option of the 'latter. There is no rule more thoroughly settled than this one, and it requires only the fact of such a purchase to have been madp to avoid the sale; no fraud in fact need be shown by the cestui que trust, and no excuse will be heard from the trustee to justify the act. The fact established, and the result inevitably follows. 4 Kent Com. 475; 2 Story's Eq. Jur., sec. 1261; Davone vs. Fanning, 2 John. Ch. R. 252, where Chancellor Kent makes a lengthy review of the decided cases; Conger vs. King, 11 Barb. S. C. R., 356; Rogers vs. Rogers, 1 Hopkins Ch. R. 515.
¶4But it is equally well settled by the same cases that the cestui que trust may affirm the sale, if deemed an advantageous one, and will be entitled to receive all the profits arising from it. The sale therefore is not void, but voidable at the election of the cestui que trust, and if regular in other respects cannot be questioned by third parties for this reason. Wilson vs. Troup, 2 Cow. 238-9.
¶5The mortgagee, Nachel A. Baldwin, stood in the relation of a trustee to Allison, the mortgagor, in respect to the mortgaged premises, but with the statutory qualification that she could have purchased the trust property at the sale. Comp. Stats., p. 644, sec. 9. The .administrator ot her estate, in conducting this sale, occupied the same relation towards Allison that she would have done had she been living; he was a trustee, but with the privilege of purchasing the trust property. If he had purchased it for the estate of the mortgagee, Allison could not have complained of the fact, because he would have been authorized by express provision of statute to do so; if Allison then could not complain as cestui que trust *31when the property was purchased by his immediate trustee, a fortiori, he is precluded from questioning a purchase by a party who is but an agent of his trustee. Of course the above' reasoning proceeds upon the idea that the sale is questioned. upon the naked fact of such a purchase having been made, and not upon a suggestion of fraud in fact. As in the latter case the mortgagor may raise the question, no matter who may be the purchaser.
¶6It is the fiduciary relation that the administrator bears to the estate that he represents, which would prevent him from purchasing under a mortgage which he was foreclosing for the estate; but a violation of his duty in this respect may or may not be questioned, at the option of the beneficiaries of the estate, but not by strangers.
¶7The foreclosure was commenced by Baldwin while administrator, and the day before the sale he was removed, and a special administrator appointed. The sale was made in pursuance of the notice, and as it does not appear that any objection was made to the sale by the special administrator, we are bound to presume that it was completed with his assent and approbation. Allison had full notice of the sale, and every step in the proceeding that he had any interest in was was complied with, and was regular. Nothing is'urged against the sale except the purchase by Baldwin, and the fact of its having been made after his removal. The estate being satisfied, Allison has no right to complain, unless he can allege and show some fraud in fact.
¶8The judgment should be reversed, and a new trial awarded.