#### WALTER C. CREDLE v. MARY A. BAUGHAM and her Husband, Wm. P. BAUGHAM.

(Filed 25 February, 1910.)

1. Partition — Judicial Sale — Guardian and Ward — Appointment of Guardian — Ward's Knowledge — Innocent Purchaser.

The title of a purchaser of lands for value at a sale under partition proceedings is not affected by the fact that one of the parties was a minor residing outside of the State, and who was unaware of the sale or the proceedings, when it appears that the proceedings were instituted in the proper court of the county wherein the land lay, having jurisdiction, and that a guardian has been duly appointed to represent the interest of the minor; that all parties were represented by attorney, and the proceedings were regular in all respects and confirmed according to our laws.

2. Guardian and Ward — Judicial Sale — Purchase by Ward — Personal Interest — Innocent Purchaser.

.While, ordinarily, a guardian may not purchase the property of his ward at a judicial sale, he may do so where he has a personal interest in the land sold and it is necessary to protect his own interest; and the title of his vendee for value will not be disturbed by reason thereof.

Appeal by plaintiff from Ward, J., December Term, 1909, of Beaufort.

Tbis action is brought to convert the feme defendant into a trustee for plaintiff’s benefit in respect to a one-fourth interest in lot No. 22, Respass Town, Washington, N. 0., formerly the property of Anne Eliza Credle, now deceased, sold for partition, purchased by and conveyed to Oliver Credle, and conveyed ultimately through mesne conveyances to the defendant Mary A. Baugham. '

These issues were submitted:

1. Does the defendant Mary A. Baugham hold the lands described in the complaint in trust for the plaintiff? Answer: “No.”

2. Is the plaintiff the owner in fee of the lands described in the complaint, or any part thereof? Answer: “No.”

The court charged the jury that if they believed all of the evidence, and found the facts to be as testified to, to answer both issues “No.” To this charge the plaintiff excepted.

The facts are further stated in the opinion of the Court.

Ward & Grimes for plaintiff.

W. G. Rodman, Small, MacLean & McMullan for defendants.

BbowN, J.

The property in controversy belonged to Anne Eliza Credle, from whom it descended to plaintiff and her three other children, one of whom is Oliver Credle.

*19Plaintiff removed to Florida in 1889, and has resided in Florida ever since. He became of age in 1899. In 1892 Oliver Credle was appointed by tbe clerk of tbe Superior Court of Beaufort County as g-uardian of W. C. Credle, and duly qualified as sucb. On 10 January, 1894, an ex parte special proceeding was instituted in tbe Superior Court of said county by Charles F. Warren, attorney for petitioners, praying for a sale of tbe lot for partition, and entitled Oliver Credle and Tbomas B. Credle, Annie B. Credle, and Walter Credle, tbe last three being infants, by their guardian, Oliver Credle, ex parte. Under formal decree approved by a judge of tbe Superior Court, tbe lot was sold by Charles F. Warren, commissioner, and purchased by Oliver Credle, and tbe sale duly confirmed. Tbe plaintiff’s share of tbe net proceeds was adjudged to be paid to the guardian, Oliver Credle, and was so paid by the commissioner. A deed was executed to Oliver Credle, who conveyed afterwards to one Hanniford, and thence by mesne conveyances tbe lot was conveyed to Mary A. Baugham on 22‘ March, 1902.

Tbe plaintiff contends:

1. That tbe proceedings are void as to him, because tbe clerk of tbe Superior Court of Beaufort County bad no jurisdiction to appoint a guardian for him or bis property — be being a resident of Florida.

It is undoubtedly true that tbe courts of this State cannot legally appoint guardians for the persons of nonresident minors, nor of their property, unless it is situated,, as tbe lot in question, within the State. But it is well settled that when a minor, who is a nonresident of tbe State, owns property within that State, the proper courts of tbe latter within tbe county where tbe property is situated have jurisdiction to appoint a guardian to represent tbe minor in tbe management and control of such property. 21 Cyc., 26; People v. Medart, 166 Ill., 384; Barnswick v. Dewey, 13 Ill. App., 111. Nor is it essential to tbe validity of tbe appointment of sucb guardian that tbe minor should have knowledge of it, nor that be should have knowledge of tbe institution of tbe special proceeding for partition. Tate v. Mott, 96 N. C., 19.

Our courts have invariably protected innocent purchasers in a proceeding of this character which appears to be regular on its face and where tbe infant was represented by counsel and tbe sale duly confirmed according to our laws. Even in tbe case of a foreign guardian, who has no power to sue in tbe courts of this State in behalf of bis ward, but does so, our courts will recognize him as “next friend” to tbe infant and bold tbe proceedings valid, although be may be described therein as “guardian.” Tate v. Mott, supra. See also, generally, Har *20 rison v. Hargrave, 109 N. C., 346; Herbin v. Wagoner, 118 N. C., 656; Williams v. Johnson, 112 N. C., 424; Sutton v. Schonwald, 86 N. C., 198; Smith v. Gray, 116 N. C., 311.

It is contended, (2) tbat because of tbe purchase by Oliver Credle at tbe sale under tbe special proceedings set out in tbe record, be being guardian for tbe plaintiff, equity should declare him trustee for tbe plaintiff, which trust should descend through tbe mesne conveyances to the feme defendant in this action. This proposition is based upon the theory that the guardian purchased his ward’s property, and that the feme defendant, in deraigning her title, is fixed with such knowledge.

It is undoubtedly true that one who occupies a fiduciary relation, such as guardian, administrator, executor, trustee and the like, cannot, ordinarily, legally purchase the property of the cestui que trust, whether the sale be made by himself or another. But to this wholesome doctrine there is an admitted exception, and that is, where the trustee has a personal interest in the property sold. In such case he must have the right to protect his own interest and, if necessary, to buy in the property. Froneberger v. Lewis, 79 N. C., 436, and cases cited.

It was held in Lee v. Howell, 69 N. C., 202, that a guardian could legally purchase his ward’s property at a sale by the clerk and master, but we think that this decision is properly qualified and explained by the subsequent- case of Froneberger v. Lewis, supra.

In the case at bar it appears that Oliver Credle owned as large an interest in the lot as his ward; that the commissioner was the attorney for all the tenants in common, and that upon his recommendation, with all the facts before the court, the sale was duly confirmed. Under such conditions the sale cannot now be declared void, or even voidable.

The judgment of the Superior Court is

Affirmed.