reason that the property was not sold for two-thirds of its appraised value, and for other reasons, and the motion is overruled by the court, and the sale confirmed, he does not thereby waive his right to afterward treat the sale as void, or to sue the sheriff for an injury which he may have sustained by reason of such sale. By being a party to a motion to set aside or confirm a sheriff's sale, which motion is decided against such party, he does not thereby and for the future waive or cure anything of substance, but only irregularities."

We come now to the final question, was the sale void in the sense that it was subject to collateral attack? Our judgment is that it was, and, inasmuch as its nullity was known to Frazier, the purchaser, no title passed to him, and therefore the collateral action will lie. We do not understand that courts, by their use of the term "void," always mean that utter negativeness which is the equivalent of nonexistence, but they more often mean that which, relatively to persons, circumstances, conditions, or forms of action, may be treated as though it were nonexistent. In this latter sense there is little distinction between it and the word "voidable." Really, as often used in the law, there is an interchangeability of meaning between the two words. This is well pointed out in Ewell v. Daggs, 108 U. S. 148, 2 Sup. Ct. 408, 27 L. Ed. 682; Pearsoll v. Chapin, 44 Pa. 159; Kearney v. Vaughan, 50 Mo. 287; Brown v. Brown, 50 N. H. 542. Therefore, in order to characterize the guardlan's sale and deed as "void" in the sense in which that word is most frequently used in the law, it is not necessary to regard them as inexistent. They have a form of existence, and under certain circumstances they may be allowed or may acquire the substance of existence. The plaintiff in this case might have ratified them by express act or deed. She might have estopped herself by some course of conduct to question their validity, or she might have allowed lapse of time to bar her right to recover on the score of their invalidity. But until by ratification, estoppel, or limitation she has given effect to them, she is privileged to treat them as void and of no effect. As to her they are void and of no effect, because they failed to pass the title to her land. In order to characterize an act or transaction as void, it is not necessary that it should be a nullity as to everybody, and for all time, and under all circumstances. If the act or transaction failed to deprive interested persons of their rights or titles, failed to confer them on some one else, the act or transaction is void as to such persons. If the act or transaction requires ratification, estoppel, or limitation to transfer the right or title, it is void until the ratification has been made, the estoppel has occurred, or the time has elapsed; and even then the right or title does not pass by virtue of the orig

inal act or transaction, but passes by virtue of the ratification, or is founded on the estoppel, or is set at rest by the lapse of time. The authorities seem to us strong and convincing that ejectment, although a collateral proceeding, will lie to recover a title claimed under a trustee's sale to himself, or in effect to himself, as in this case. In Obert v. Hammel, 18 N. J. Law, 73, it appeared that an administrator had masked a purchase by himself under the form of a sale and conveyance to another. The transaction was attacked through ejectment by an heir of the estate. The court ruled that the sale was fraudulent in law, and therefore void, and might be shown to be such in a law action without compelling the heir to go into equity. In McKay v. Williams, 67 Mich. 547, 35 N. W. 159, 11 Am. St. Rep. 597, it appeared that an attorney in fact had executed a deed to the land of his principal, and on the same day took back from the grantee a deed to himself, and a few weeks thereafter conveyed the land to another. It was held that the deed by the attorney and the deed back to him were prima facie fraudulent and void on their face, that they did not show that title had passed, that they imparted notice to the subsequent purchaser, and that title could be recovered in ejectment. Many of the cases are reviewed in the opinion. In Winter v. Truax, 87 Mich. 324, 49 N. W. 604, 24 Am. St. Rep. 160, the same holding was made in a case identical in all its facts with McKay v. Williams, except that the sale was made by a guardian, instead of an attorney in fact. Now, in this case, as hereinbefore shown, the deed under which Frazier claimed showed on its face the relationship existing between Scheel the guardian and Scheel the purchaser at her sale; that is, it contained a recital sufficient to charge him with notice. This was sufficient.

The judgment of the court below is affirmed.

JOHNSTON, SMITH, GREENE, ELLIS, and POLLOCK, JJ., concurring.

CUNNINGHAM, J. (dissenting). I would be false to my convictions if I failed to announce my dissent to the conclusion reached by the majority of the court in this case. It is admitted that the sale by the guardian to her husband was free from actual fraud, so that the question presented is, can a sale be made for a full consideration, in the best of faith, by a husband or wife acting in a fiduciary capacity, to the consort? My Brethren say not, and that such sale is not only voidable, but abs lutely void, and can be avoided by any one in interest at any time without tendering or paying back the consideration received. I do not find ground for that conclusion in reason or authority. I find no fault with the proposition that an agent or trustee cannot sell to himself. Such a sale

is void; is no sale; for one cannot sell to himself. The same person cannot be seller and purchaser at the same time. But that principle finds no application to the facts at bar, although the opinion of the court seems to be based largely upon it. Nothing is more strongly fixed in Kansas law, both by statutory provision and judicial decision, than that, so far as property rights and interests are concerned, husband and wife are as distinet as though they were strangers. The statute provides that a married woman may deal with her property, real or personal, and enter into any contract with relation to the same, in the same manner, and to the same extent, and with like effect, as a married man may in relation to such property. While in the marital relation, her property remains to her sole and separate use to the same extent as though she were not married. She may sue, and is liable to be sued, in the same manner as if she were unmarried; may carry on any trade or business, perform any labor or services, on her sole account. The earnings arising from such trade, business, labor, or services shall be her sole and separate property, and may be exclusively used and invested by her in her own name. She may deal with her husband, with respect to her property, exactly as though she were a stranger to him; and in all these respects our common everyday observation gives us to know that these privileges are frequently exercised by and between those occupying the marital relation. Although our ancestors feared that great calamities might come were these things to exist, thus far we see no indication of the heavens falling or the social fabric collapsing because of them. This court in many cases has sustained to the fullest the rights of a married woman in these respects. What logic is there in the claim that the wife may legally sell and convey her own property to her husband while acting herself, and at the same time condemn as utterly void and of no force whatever a like conveyance made by her in the best of faith, and for a full consideration, when she is acting in a fiduciary capacity for another; and especially how out of harmony with logic is such conclusion when we couple with it the thought that such sale has passed the scru tiny and received the commendation and approval of a court vested with full jurisdiction to supervise and order such sale? I am free to say, in my opinion, such a sale is perfectly valid, and is not even voidable. The only case to which we are cited of a similar nature to the one at bar is Crawford v. Gray, 131 Ind. 53, 30 N. E. 885, which was a case where a wife purchased at an executor's sale conducted by her husband and another as executors. No fraud or collusion was there charged, and it was there urged, as here, that the wife could not become the purchaser because of considerations growing out of her relation to the executor. The court, on pages 54, 55, 131 Ind., and page 885, 30 N. E.,

in part said: "Under the law of this state as it is now and was at the time of this sale by the executors and purchase by the appellee, the wife had quite as distinct and undivided an existence relating to her right to contract for and purchase real estate and take title in her own name, and hold, use, and enjoy the same, as did her husband. She has the same right to invest her own money in the purchase of real estate as her husband, and regardless of the will of her husband. When once the title is vested in her, true, she cannot convey or incumber the same except by deed in which her husband joins; but there are no restrictions on her right to purchase and take title in herself. This she can do without his aid or consent, and he has no legal power to restrain or prevent her from doing so. At the executor's sale the land was offered at public auction. In offering the land for sale the executors were acting under and in pursuance of an order of court. All who desired had the right to bid and become purchasers. The wife of one of the executors having the right to use her individual means as she willed, she had the same right to bid and become a purchaser in good faith as did any other individual, and to authorize an agent to act for and bid the land off for her, and take title in her own name. Before the purchase the wife had no interest in the land. The husband was acting in a fiduciary capacity. It was not necessary that the wife join him in a deed to pass title. The title was not even in the husband. It was the title which the testator held at his death that the executors conveyed to the wife. There is no fraud charged upon the part of either the appellee or the executors, or any collusion between the appellee and her husband." In Tyler v. Sanborn, 128 Ill. 136, 21 N. E. 193, 4 L. R. A. 218, 15 Am. St. Rep. 97, cited in the majority opinion, the court held that a sale like the one herein described was voidable, not wholly void, to which conclusion the chief justice and Justice Bailey dissented, and from this dissenting opinion I quote (pages 146, 147, 128 Ill., and page 196, 21 N. E.): "It is assumed in the opinion of the majority of the court-and, I think, correctly-that no fraud in fact is shown, the decision being based wholly upon the assumption that there was such fraud in law as must necessarily invalidate the transaction. I make no question as to the soundness of the doctrine that an agent employed by another to sell his property cannot, either directly or indirectly, become the purchaser, and that, if he does so, his principal may interpose, and avoid the sale. But that is not this case. The purchaser here was not the agent, but another person, who was sui juris, and capable of acquiring, owning, and controlling her separate property wholly inde pendent of any control or interference on the part of her husband. The opinion treats the purchase by the wife as being the same in legal effect as though made by the husband.

bate court, filed a petition in all respects regular in that court; received its proper legal order to sell the minor's interest in the real estate involved; such real estate was sold for a full consideration, without any fraud; such sale was reported to the court, and the court, after due consideration, presumably knowing all of the facts relative thereto, confirmed such sale, and directed the issuance and delivery of a deed to the purchaser. In doing so it at no point exceeded its jurisdiction. It, following the supreme court of Indiana, held that the sale was good. Admit in this it was wrong; that it should have held, with the supreme court of Illinois, that it was voidable; or admit, following this court, now for the first time in this country announcing that such sale was void, the probate court adjudged that it was good,

She

But perhaps I do violence to the argument contained in the majority opinion in assuming that the conclusion reached grows of necessity out of the marital relation. I am not sure but the argument is that it grows out of the close personal interests based upon this relation, as that seems to be the idea running through the quotation from the brief of counsel for the defendant in error, and also the quotation from Tyler v. Sanborn, supra. This consideration would be a very potent one if the question were one of actual fraud. The relation of husband and wife is, indeed, or should be, one of the closest and most intimate known to humanity; and it generally is so, but not always. It is not infrequent that the relation of parent and child, brother and brother, or even friend and friend, is more intimate and confidential, especially in relation to property, than that of husband and wife. How can we say, as a matter of law, that a sale in the one case would be good, and in the other absolutely void? My Brethren, by this decision, say that, no matter how adverse the interests of husband and wife actually are, how antagonistic and at arm's length their dealings may be, all this cannot be considered when one acting as a trustee comes to sell the trust estate to the other; that the sole fact that the relation of husband and wife exists between them makes the transaction, as a matter of law, fraudulent and void, which, as a matter of fact, is not fraudulent, but for the highest interest of the cestui que trust. Could legal absurdity be carried farther? But, granting that a sale made by husband or wife in a fiduciary relation to the consort is voidable, I most strenuously insist that such sale, having received the approbation of a court which had full jurisdiction of the parties and the subject-matter, is not so absolutely void as to be disregarded on a collateral attack. It is granted in the majority opinion that an attack by an action in ejectment is a collateral one. In this case we find that the guardian, duly appointed by the pro

though the sale was. If the court was wrong, it was but an error of law, and we revolutionize all of our ideas concerning the inviolability of the orders and judgments of courts of competent jurisdiction when we say such an order may be disregarded upon a collateral attack. The statute (section 133 of the executor's and administrator's act,-section 2938, Gen. St. 1901) says of a deed executed as was the one in this case, it shall "be received in all courts as presumptive evidence that the executor or administrator in all respects observed the directions and complied with the requisitions of the law, and shall vest the title in the purchaser in like manner as if conveyed by the deceased in his lifetime." Is it possible that this statute goes for naught, and in a collateral attack all errors committed by the court in ordering such deed may be brought to light? I confess myself unable to say where such a rule will lead us. The authorities opposing such rule are so abundant that I shall not cite them. Let us illustrate: A guardian, being ordered to dispose of a minor's property for his sustenance, education, or other proper purpose, makes a sale to the husband or wife for a full consideration. The consideration is paid and the sale is confirmed. Every one has acted in the best of faith, and in the honest belief that the law has been in all respects fully complied with. The money received by the guardian is expended for the purposes desired. Some years thereafter the ward brings an action in ejectment. The purchaser, without being recompensed in any manner for the money paid by him, is wholly deprived of his title, -as it will be remembered that the court in this case holds that such a sale is absolutely void, and, if so, no necessity for a tender or repayment exists as a prerequisite for recovery. I have searched the books in vain to find warrant or authority for such injustice. None of the cases cited in the majority opinion go to that extent. It is only where a trustee sells to himself-that is, where there is no sale that this rule obtains. Take, for

In

instance, the case of Tyler v. Sanborn, supra, where an executor sold to his wife. Such sale was held to be voidable only, the court directing that the conveyance should be canceled upon repayment of the amount received by the executor, with interest thereon. the case of Davoue v. Fanning, 2 Johns. Ch. 252, which is the leading case in this country, where the executor caused lands to be purchased for the benefit of his wife, such sale was ordered to be set aside upon condition that the consideration money be repaid. The same is true in the case of Riddle v. Roll, 24 Ohio St. 572. In the other cases cited where sales were held void the sale was made by the trustee to himself, or indirectly in his interest.

It is urged in this case that the form of the action is such that the setting aside of the sale cannot be conditioned upon an equitable adjustment of the price paid. If this is so, so much the worse for the plaintiff. It was she who selected the form of the action. Surely, the defendant ought not to be wronged because she selected such an action as would not permit him to be dealt with honestly. I do not believe the plaintiff ought to be permitted to recover the land and retain the price honestly paid for it.

(64 Kan. 573)

MANLEY v. DEBENTURES "B" LIQUIDATION CO. et al.

(Supreme Court of Kansas. Division No. 2. March 8, 1902.)

TAX SALE-PURCHASE BY MORTGAGOR-SALE OF CERTIFICATE-NOTICE-RES, JUDICATA. 1. Where one has secured his obligation by the pledge of the note of another secured by mortgage on real estate, he cannot, as against his creditor, decrease the value of such security by purchasing such real estate at a tax sale. Such a purchase, as between such parties, will be held as a payment of the tax.

2. It is the duty of one so collaterally pledging a real estate mortgage to preserve the value of such security. And the law will not permit him to decrease it to his own profit and to the detriment of the one holding the note thus collaterally secured.

3. One receiving from such debtor a tax-sale certificate, obtained under circumstances indicated above, as security for a debt owing to him from the tax-sale certificate holder, with knowledge of all the facts, stands in no better position than the original tax purchaser, and equity will cancel and set aside such tax-sale certificate in the hands of such a one, at the suit of one wronged by the issuance of such tax-sale certificate.

4. One not made a party to an action is neither bound by the judgment rendered therein, nor can he claim advantages growing out thereof.

(Syllabus by the Court.)

Error from district court, Atchison county; W. T. Bland, Judge.

Action by the Debentures "B" Liquidation Company and others against Mary A. Manley. Judgment for plaintiffs, and defendant brings error. Modified.

Argued before SMITH, CUNNINGHAM, and GREENE, JJ.

CUNNINGHAM, J. Up to March 18, 1893, and for some 10 years prior thereto, the Kansas Trust & Banking Company, a Kansas corporation, was doing business in the city of Atchison. As a part of its business, it borrowed money from different persons and issued to them its notes in the form of debentures, securing the same by a deposit of notes and mortgages on real estate with the First National Bank of Atchison, as trustee. Such real estate mortgages, and the notes which they secured, were to be held by the trustee in trust to secure the payment of these debentures. There were two series of debentures,-"A," bearing 8 per cent. interest, and secured by a given class of mortgages, and "B," bearing 7 per cent. interest, secured by another class of mortgages. The questions involved in this case arise only from series "B," about $120,000 of which had been issued. On March 18, 1893, the Kansas Trust & Banking Company, having failed to meet its obligations, went into the hands of a receiver, under whose administration it paid less than 1 per cent. on its obligations. Subsequently, the United States circuit court appointed a special receiver to take charge of the securities, which had been deposited as collateral to debentures "B," convert them by foreclosure into cash, and with the proceeds to pay the debentures thereby secured. For this purpose, he brought actions in foreclosure and obtained title to a large number of tracts of real estate. Subsequent to this, a corporation was organized, known as "the Debentures 'B' Liquidation Company," which was the plaintiff in the amended petition in this action.

This company was organized for the purpose of handling the lands, title to which had been taken by the receiver as herein before mentioned, and to it the receiver had conveyed them. While the Kansas Trust & Banking Company was a going concern, one R. M. Manley was vice president and general manager thereof. He was the son and agent of Mary A. Manley, plaintiff in error in this action and the principal defendant below. At the tax sale of 1891, several of the pieces of real estate on which mortgages had been given, and which were deposited with the trustee as security for debentures "B," as herein before noted, were purchased by the Kansas Trust & Banking Company. Certificates of sale were taken in the name of R. M. Manley, the money with which they were purchased being furnished by the banking company. They were assigned in blank, and were delivered to the Kansas Trust & Banking Company, and by it subsequently delivered to Mary A. Manley, by her son, R. M. Manley, who was at the time acting as her agent, as well as general manager of the banking company. The assignment of the tax-sale certificates, how

er's sale book until August, 1894, and Mrs. Manley was not made a party to the fore closure actions prosecuted in the interest of the holders of debentures "B," as hereinbefore noted. The banking company was, at the time of the assignment, indebted to Mrs. Manley in a large amount, and the assignment was made for the purpose of securing her. The purpose of this action was to cancel these tax-sale certificates and prevent Mrs. Manley from obtaining title to the lands mentioned by means of tax deeds issued thereon. After Mrs. Manley became the owner of these tax-sale certificates, she paid the tax assessed on the land for the year 1893. These taxes were not tendered to her before the action was brought. The plaintiff in the petition, however, offered to make payment of such sum as should be ascertained to be due her, it being alleged that the facts relative to such payment were not known. Many other details are presented and elaborately argued in the briefs, but we do not think them essential to the determination of this action. It seems to us that it requires the application of but a few simple considerations to determine the rights of the parties.

The Kansas Trust & Banking Company could not obtain any lien upon or title to the lands, mortgages upon which had been deposited with the trustee to secure its debentures, which would in any manner operate to depreciate the value of such securities. It would not be permitted to in any manner depreciate the value of the securities which it had pledged as collateral to its own debts. The court found that there was an agreement with the debenture holders that these mortgages should be maintained as first liens. We do not care, however, to place our conclusion upon that finding, but declare the law to be, where one has given, as security to his own debt, a mortgage given by another upon property, such one can acquire no title to, or lien upon, such property, so as to depreciate its value as such security. So that in this action when the Kansas Trust & Banking Company purchased these tax-sale certificates it amounted in law to a payment of the taxes thereon, at least as between the debenture holders and the Kansas Trust & Banking Company, or its assigns having knowledge of these facts. When these tax-sale certificates were passed to Mrs. Manley, she took no greater right in and to them than the banking company had. Her son, as her agent, who was at the same time the general manager of the company, transacted this business for her; so that she was charged with full knowledge of all of these facts. It is suggested that, inasmuch as the mortgages had been foreclosed and title to the lands transferred to the Debentures "B" Liquidation Company, it would not have the rights that the debenture holders might have had. This claim

tures "B" Liquidation Company was but another name for the debenture holders; it was organized in and operated to promote the interest of such holders. To cut off the title to the lands by these tax-sale certificates, or deeds issued thereon, would be as damaging to them as would have been a like operation before the foreclosure of the mortgages. While the mortgages, as mortgages, might have been drowned,-to use the expression of the plaintiff in error,-in the foreclosure proceedings, and thus extinguished, still it must be remembered that it was the interest of the debenture holders that the banking company was bound to protect, and not simply the mortgages which served as security for these debentures, and, besides this, these tax sale certificates were taken at a time when the mortgages were in existence, and, as we have seen, the pretended purchase was in law but a payment of the tax. In law, there never was a tax-sale certificate. What purported to be such was simply a tax receipt as to these debenture holders.

By the judgment rendered in the foreclosure cases, the proceeds of the sale of the lands were directed to be applied-First, to the payment of the costs of the action; second, to the payment of the taxes and interest. It is therefore claimed by Mrs. Manley that, by reason of this judgment, she obtained the right to have these taxes paid to her. This claim we do not indorse-First, because in the sale of none of these lands did the price which they brought suffice to pay the costs of the action, leaving nothing with which to pay taxes; second, Mrs. Manley was not a party to that action, and could obtain no rights under the judgment therein.

The defendant in error claims, inasmuch as the Kansas Trust & Banking Company, who appeared from the treasurer's records at the time of the commencement of this action to be the owner of these tax-sale certificates, and which was made a party, and whose interest was cut off by the decree in such foreclosure, that that decree effectually cut off the interest of Mrs. Manley, she not having given notice in the manner prescribed by statute of her ownership of the tax-sale certificates. We cannot approve of this claim, for, as she obtained no rights under the decree, as above indicated, neither was she bound thereby; but, as we have before said, these tax-sale certificates were as innoxious and harmless in her hands as they were in the hands of the banking company. It therefore necessarily follows that the court was correct in decreeing their cancellation.

It is also claimed by plaintiff in error that, as repayment of the taxes paid by Mrs. Manley in good faith after these tax-sale certificates came into her possession was not tendered before this action was commenced, it cannot be maintained. Of course the rule is well established that he who seeks equity