This suit was brought by the appellees, against the appellants, to set aside a sale and conveyance of certain lands and land certificates, alleged to have been fraudulently sold by McGaffey, without any authority of law, to Mercer, who is charged with being privy and a party to the fraud. The only answer relied on, was a general denial. On the trial the plaintiff read in evidence the deed from. McGaffey to Mercer, in which he assumed to act as administrator, and to have sold under an order of sale of the Probate Court of Williamson county. The reading was objected to on the ground that there was no allegation in the petition, charging a dereliction of duty in the discharge of the trust reposed in him ; and that to set aside a deed purporting on its face to have been executed in a fiduciary capacity, the failure to discharge the trust should have been alleged. The objection was overruled, and defendants excepted. This ruling of the Court is assigned as error.
W e are unable to perceive the force of the objection. McGaffey had been distinctly charged with making a sale and conveyance, without any authority in law, under a fraudulent agreement with Mercer. And this was sufficient notice to them to *367defend the authority by which he had assumed to act. Neither of them could be surprised ; and there was a failure to show the slightest scintilla of authority ; and the fraud in both was
e e ' if
e e abundantly proved. The judgment is affirmed.
Judgment affirmed.