On Motion for Rehearing.
Appellees contend that we erred' in the original opinion in denying their propositions, first, that the guardian had the right to purchase the land, including the undivided interest of her ward, because the guardian had an interest in it which she had the right to protect, and, secondly, that, even if the sale was void as to Pearl Denniston, the ward of Mrs. Wall, it was not void as to the other owners of undivided interests.
In view of the earnestness with which the eminent counsel for appellees urge these contentions, we have again reviewed the entire record and the authorities cited by them, as well as many others, and find no occasion to change our holding.
While in some jurisdictions the rule which prohibits fiduciaries from purchasing the property of their wards or cestuis que trustent at public or private sales has been relaxed in cases where the trustees or fiduciaries had personal interests to protect (Batson v. Etheridge, 239 Ala. 535, 195 So. 873), in others such right has been denied upon the established principles of equity alone. Smith v. Strickland, 139 Miss. 1, *186103 So. 782. In this State the matter, in its relation to guardians, is controlled by a statute which is positive in its terms and in which no exceptions are provided. Article 4205, R.C.S.1925. In so far as the land of the ward here involved is concerned, there can be no doubt that the sale to, and purchase by, W. H. Wall was ineffective and void. Under the plain provisions of the statute, the courts have no alternative, when a proper proceeding is instituted, but to declare it so and set it aside. They have no power to manufacture exceptions and neutralize the mandatory provisions of the statute.
As to the second proposition urged by appellees in the motion, we think it may well be conceded that the owners of the land, other than the ward, Pearl Denniston, have no legal ground of complaint. The sale was fairly made and the land brought a fair price. No fraud is shown on the part of W. H. Wall, the purchaser, nor his wife, Nora Wall, the then guardian of Pearl Denniston. Pearl Denniston, however, was a plaintiff in the original petition for partition. As such, she had the right to have the 200 acres of land partitioned and, inasmuch as all of the parties admitted, and the court found, that it was not susceptible of partition in kind, she had the right to have it sold and the proceeds partitioned between her and the other owners. If we should hold the sale to be valid as- to all of the other owners and declare it void as to Pearl Denniston, then she has not been accorded any relief. She still has an undivided one-eighth interest in the land and the remaining seven-eighths belong to W. H. Wall and his wife instead of to the other children of the deceased parents. Instead of being granted the relief for which she sued, her condition has been made more onerous. In order to obtain the relief for which she originally sued, she would be put to the necessity of filing another suit against the new owners and again trailing through all of the formalities through which she has already gone in order to obtain the relief to which she was entitled in this case. Even then, appellees would find themselves in exactly the same position in which they were prior to the sale that has already been attempted, save only in the proportion of interest held by them in the land. It is obvious, we think, that our practice requires no such useless procedure. The only alternative available to the ward would be to have her one-eighth undivided interest sold separately and, in view of the undisputed evidence and the finding of the court that it is not susceptible to partition in kind, it is obvious that no one would be interested in purchasing it except the owners of the remaining seven-eighths, and she would, therefore, be thrown entirely upon their mercy as to the price she would obtain at the sale. We are therefore not in accord with appellees in the contentions presented in the motion.
Appellees claim that, in disposing of the case, we did not require restitution of the purchase price paid by them when they purchased the land at the commissioner’s sale. The judgment of the trial court was reversed and the sale was set aside. The trial court was instructed to proceed as though no sale had been attempted by the commissioner. When the case again reaches the trial docket and is called for hearing, the court has ample authority to adjust the equities and require return of the purchase money. Indeed, its return is demanded by the reversal. Peticolas v. Carpenter, 53 Tex. 23; Brinegar v. Henderson Hardware Co., Tex.Civ.App., 95 S.W.2d 740. We think it unlikely that any difficulty will arise in this connection, however, because appellants tendered these funds in their pleadings and they constitute all of the purchasers who received any of the money.
The motion will be overruled.