¶1(dissenting).
¶2In 1882, E. T. Fleming, a resident of Chisago county, died intestate, leaving an estate of both real and personal property. Defendant was duly appointed administrator of his estate, duly qualified, took possession of the property, and entered upon the discharge of the duties of his office. The real estate in question was-a part of that estate. Prior to his death Fleming had mortgaged the same to defendant, and at the time of his death there was due and unpaid thereon the sum of about $700. Defendant did not file his claim against the estate, but relied upon the mortgage against the land for its payment. After qualifying as administrator, he took possession and control of the land, receiving the rents and profits therefrom, accounting for the same to the court. Subsequent to his appointment and qualification as administrator, defendant foreclosed his mortgage by advertisement, and became the purchaser of the property at the sale, bidding therefor the sum of $770, which was the amount due on his mortgage, with the costs and expenses of foreclosure. The land was worth, at the time of the foreclosure, the sum of $1,000. After the expiration of the period of redemption, defendant sold the same for the sum of *158$1,250, thereby realizing a profit of about $450. This action was brought by the heirs at law of Fleming to compel defendant to account for this profit.
¶3It is true that upon the death of the owner the title to real estate passes immediately to the heirs at law, subject, however, to the right of the administrator to take possession thereof, and to hold and maintain the same pending the administration of the estate, and subject, also, to the payment of debts and expenses of administration where the personal property is insufficient for that purpose. It may be true, also, that the right of the administrator to take possession of the real estate of his intestate is merely permissive ; that he is not required to do so. But when he exercises that right, and actually takes possession and control, he becomes at once, with respect to creditors and heirs at law, a trustee, with all the responsibilities and liabilities incident to such a fiduciary relation.
¶4The majority recognizes the application of this equitable doctrine to executors and administrators, but it is claimed that by reason of “special facts” the doctrine does not apply in this case. The “special facts” are not pointed out in the opinion, and, as I read it, are not to be found in the record. There is no doubt, perhaps, as to the right of defendant to foreclose his mortgage, and it may be conceded that he had the right to become a purchaser of the property at the foreclosure sale, but it cannot be successfully maintained on legal or equitable principles that the profits accruing to him by reason of such purchase were not the property of the estate he was engaged in administering. He purchased the trust property at his own foreclosure sale for less than its value, and immediately after the expiration of the period of redemption sold it at a profit of something like $450, which he has at all times since retained as his own. The- money clearly belonged to the estate, and, the creditors not having insisted that it be paid to them, the heirs at law have a right to insist that defendant account to them for it. See 11 Am. & Eng. Enc. 1020, et seq., where a large number of authorities on this subject are collected. I have found no case similar to this which can be said to sustain the right of defendant to retain this money. The principles of *159equity as to the duties, disabilities, and liabilities of one occupying a fiduciary relation clearly apply, and there are no special facts by which defendant can escape liability.
¶5There was no delay or laches in bringing the action. Plaintiffs were at all times nonresidents of the state, and had no notice, until a short time prior to its commencement, of the death of their ancestor, or any of the proceedings relative to the administration of his estate. The mere lapse of time, therefore, is no bar to the right of action. Burke v. Backus, 51 Minn. 174, 53 N. W. 458. There is no suggestion that the delay has worked any injury to defendant, or in any way affected his substantial rights. The court below refused to find that defendant took possession of the land, •and the refusal is assigned as error. The court was clearly wrong in this, for, as I read the evidence, it is conclusive that he did take such possession. The following question to the defendant himself when on the witness stand, put in connection with other questions in reference to the land and the death of his intestate, is all "there is in the record on the subject, viz.: “Upon his death, did you take possession of that real estate, either personally or through your agents, after you had qualified as administrator?” He answered, “Well, I suppose I did.” He also testified that he realized the sum of $90 from the crops raised thereon in the year 1892. ’There is nothing in the record to detract from this statement of the witness, and the statement in the syllabus prepared by the majority that defendant did not take possession of the land must-be taken to have been inserted therein through inadvertence and oversight.
¶6The order appealed from should have been reversed.