In a certificate appended to the motion for a new trial, the judge certifies that “Both counsel did agree that the only question for the jury was the settlement or compromise of 1869.” That being the only question actually tried, we can pronounce with certainty that the verdict upon it should have been in favor of the complainants and against the executors, for there was no evidence that, in making their returns, the executors or either of them had made oath that the settlement was in' good faith, and to the best interest of the parties represented. Section 2539 of the Code is as follows: “ Guardians, administrators, executors, and all other persons acting in a fiduciary capacity, are authorized to compromise all doubtful debts belonging to such estates, where such settlement will advance the'interests of those represented. All persons acting under the *122provisions of this section, on making their returns, shall make oath that the settlements thus made were in good faith, and to the best interests of the parties thus represented : Provided the ordinary first make an order directing such compromise.” This section is applicable to the one subject of doubtful debts, and is the section directly in point here. Under it, to obtain an order, agree upon terms and execute the agreement, will not consummate the matter. On making a return of the transaction to the ordinary, the prescribed oath must be taken, and then, but not till then, will the compromise be available to the executors or other trustees concerned, aspiro® facie binding upon legatees or beneficiaries. The oath, of course, is to be annexed to the return and filed with it. There might as well be no order for the compromise, as for there to be no return and oath after due time has elapsed for making the return,— which time is doubtless the same as that for making return of the other transactions of the given year, if the executors or other trastees concerned, chose to take that much time. It would always be safest, however, for fear of accidents, to return a compromise as soon as it is made, supporting the return with the required oath. In this case the return was early enough, but the oath annexed to it was not the one prescribed, being only “ that the compromise of the claim on A. A. Underwood for $4,000.00 was made under order of the court of ordinary of said county, and at a regular term held the first Monday in April 1869.” So much of the charge of the court excepted to as treated a compromise not duly returned and sworn to as worth anything to the executors, was erroneous. If, “ the only question for the jury was the settlement or compromise of 1869,” of course there should have been no charge on any other question. If there was a sale of the trust assets by the executors without authority of law, and these assets afterwards rose in value, the benefit of the advance would go neither to the purchaser nor to the executors, but to the legatees — that is, the real owners.
As what we have ruled puts the alleged compromise out *123of the case as a defense, most of the points made in the record are thereby disposed of. What remains for trial is the question, wliat the notes and mortgage would have been worth to the complainants, had the executors committed no illegal act of commission or omission concerning them ? As the executors did not pursue the law of compromise, they should be held to the law of administration. They had assets and must legally account for them. Upon the question of their value, the value of the land on which there was a mortgage lien to secure them is matter for inquiry.
2. In investigating the value of land as a mortgage security, its true value is some token of what it might sell for at public outcry; and it is difficult to arrive at the true value of anything without considering what it could probably be sold for at private sale. While the purchaser at a mortgage sale would buy publicly, he might buy for the express purpose of selling privately, and the amount of his bid might be much influenced by what the property would bring at private sale. The market value of land at private' sale is thus relevant evidence, even where, as in the case of a mortgage, the sale must be public. It operates as indirect evidence of what a public sale might produce. Of course, opinions of witnesses going directly to value at public sale, are also admissible; as are their estimates of the difference between what could be realized at the one kind of sale as compared with the other.
Judgment reversed.