(After stating the foregoing facts.)
1. It has been held that this court will not reverse a refusal by a trial judge to direct a verdict in favor of one of the parties to a litigation. Green v. Scurry, 134 Ga. 482 (2), (68 S. E. 77). Hence the ground of the motion for a new trial which complained of the refusal to direct a verdict for the defendants was without merit.
2. The presiding judge directed a verdict in favor of the plaintiffs. Civil Code (1910), § 5926, declares: “Where there is no conflict in the evidence, and that introduced with all reasonable deductions or inferences therefrom demands a particular verdict, the court may direct the jury to find for the party entitled thereto.” It is only in the case thus declared that a judge may properly direct a verdict. We do not deem it desirable to enter into a full discussion of the evidence, or to intimate how the jury should have found, if the case had been submitted to them. We will only discuss it far enough to show that the presiding judge erred in directing the verdict, and that there was sufficient evidence to carry the case to the jury, under proper instructions.
*838The deed made by the administratrix, which shows on its face that it was carefully prepared, so as to recite a compliance with the requirements of the law in regard to the sale, and the interest which each of the grantees therein should take, declared that the two Hills and Moreland were the parties of the second part; that at the sale “the parties of the second part became the purchasers thereof, being the highest and best bidders at said sale;”'that E. B. Hill having paid one half of the purchase-price, his interest will be an undivided one-half interest in the property; that Moreland “having paid one fourth of the purchase-price, his interest will be a one-fourth undivided interest in the property hereinafter described;” and that D. B. Hill, having paid ohe fourth of the purchase-price, will be interested to the extent of one fourth. The .deed, containing these explicit recitals, was delivered and recorded. There was evidence that the two Hills did not give to Moreland any note or evidence of indebtedness, or make any written contract with him as to it. There was no evidence of even a parol agreement as to when the money was to be returned, or when the debt would become due, or whether it bore interest. Thus the usual indicia of an indebtedness for so 'large a sum of money seem to have been entirely wanting. And this is true, although Moreland testified that he borrowed part 'of the money which he let the Hills have. Some time after the making of the deed by the administratrix, the plantation included in the deed was sold to J. E. Logan and Eeese M. Andrews. A bond for title was made to them, and notes given by them. The bond was signed by E. B. Hill, D. B. Hill, and W. D. Moreland, apparently as tenants in common, and the notes were made to them. Andrews testified, that, at the time of the making of the notes and the bond for title (in May, 1910), nothing was said as to the interest of Moreland being simply as security for a loan, and that he first learned of the claim that such was the fact about the first of the following November. Logan testified that he bought the land with the understanding that More-land had an interest in it; that the bond for title and notes were drawn to that effect; that nothing was said about Moreland’s interest being a security for debt; and that he first learned of the claim that such was the fact after they failed to make a title, about the first of November. There was evidence tending to show that *839the two Hills borrowed money from a bank to pay Moreland the amount which they claimed to be due him, and that they paid him, and took from him a deed dated after the present petition had been filed.
Without pursuing the evidence further, there can not be a doubt, from what is stated above, and the reasonable deductipns which might have been drawn therefrom, that the jury might have believed that Moreland and the two Hills were purchasers at the sale by the administratrix. It is true that much evidence was introduced tending to establish the contentions of the plaintiffs, and that witnesses swore positively to the fact that Moreland was not a.purchaser, but merely loaned money to the Hills, and the deed from the administratrix included his name as a means of securing him for the loan, instead of having a deed made to the Hills and then from the Hills to him. But juries are authorized to pass upon questions of fact. And it can not be successfully contended that the evidence in this case, and the reasonable deductions therefrom, so plainly demanded a verdict for the plaintiffs that the presiding judge was authorized to direct a verdict in their favor.
3. An administratrix can not sell property of the estate to her husband. The relationship of husband and wife is too intimate, and she is too much interested in his welfare and in the success of his undertakings to permit her to sell to him property of an estate which is in her hands to be administered for the best interest of the beneficiaries. An administrator can not be allowed to sell the property of the estate to himself, nor an administratrix to herself. A trustee can not be allowed to be on both sides of a sale. At common law there was a merger of the wife’s legal existence into that of the husband, and the two became one. ^Relatively to her separate property this is not so under our statutes. But the law still recognizes a unity of interest, and still indulges in the presumption that the husband has influence over the wife. Under our code, she is not permitted to sell her own property to him without an order of court. Nor should she be allowed to sell to him the property of others entrusted to her management as administratrix. If a husband purchases property at a sale made by his wife as administratrix, the sale to him is voidable at the election of heirs of the intestate, who move within a reasonable time to have it set 'aside. *840Lowery v. Idleson, 117 Ga. 778 (45 S. E. 51). If this was in fact a sale by the wife as administratrix to the husband as the purchaser, the rule stated would apply, unless there was laches, or some other sufficient reason, which would authorize a denial of the setting aside of the sale. What were the real facts we have already declared was a question for the jury.
4. It was argued that the sale to Logan and Andrews terminated the right to set aside the administratrix’s sale, if such a right ever existed; and in support of this position authorities were cited in which an attempt was made by heirs to set aside a sale and recover property from innocent purchasers who had bought without notice of any defect in the title. But in tile present case the proceeding was not instituted by the heirs against Logan and Andrews; nor are the latter here asserting that the title in them is good as it stands. Indeed they are not parties to the litigation at all. On the contraiy, there is some intimation that they are not satisfied to take the title as it now exists; and the present equitable proceeding was brought by the Hills against Moreland, the administratrix, and the heirs of the decedent, to correct an alleged mistake in the title. The verdict directed granted their prayer, as well as refused that of the cross-petition. The difference between the cases cited and the present one is obvious.
5. It was contended that the heirs of an estate can not have both the proceeds of the sale of the land and the land itself, and that, by receiving the part of the proceeds of the sale applicable to the distributive share of the minors, the guardian estopped himself and them from seeking to set aside the sale. The general principle that one can not have the proceeds of a sale and at the same time seek to set it aside and recover the property is sound. Battle v. Wright, 116 Ga. 218 (42 S. E. 347). But there was some evidence tending to show a retender to the administratrix of the amount received by the guardian (no point appears to have been made that it was by check), and it was refused, and the minor grandchildren were represented both by him and a guardian ad litem. On the record before us, we can not declare, as matter of law, that the minor grandchildren and their guardian are estopped.
6. By amendment a ground was added to the motion for a new trial, based on newly discovered evidence. After consideration, we think it best not to discuss the weight or force of such evidence, or *841the question of diligence in its discovery, as it may be offered upon another trial.
7. • It was argued, that because the plaintiffs in error moved the court to direct a verdict in their favor, and the defendants in error also moved for the direction of a verdict in their favor, this waived the question of whether the case should be submitted to the jury, and that, upon overruling the motion of the plaintiffs in error, the court could grant that of the defendant in error. The motion for a new trial distinctly makes the point that, under the evidence, the motion for the defendants in error should not have been granted but the case should have been submitted to a jury. The mere fact that a party to a litigation contends that the evidence demands a finding in his favor does not amount to a concession that, if this position is not correct, a verdict may be directed in favor of the other party. On the contrary, a contention that the evidence demands a verdict for one party prima facie includes the-contention that it does not demand a verdict in favor of the other. Of course parties may agree that the case is controlled by a question of law, and that the judge shall direct a verdict one way or the other, and thus waive the right to have a jury pass upon the facts. In Lydia Pinkham Co. v. Gibbs, 108 Ga. 138 (33 S. E. 945), something of this kind occurred; and moreover, the Supreme Court held • that there was no conflicting evidence on the issue involved. In the present case there was no such waiver of a jury trial on the facts.
8. One ground of the motion for a new trial was that the court erred in taxing any part of the costs against the moving defendants, because they were not responsible for, and did not participate in, the making of the mistake from which the plaintiffs sought relief. If the question of taxing cost is a proper ground of a motion for a new trial, this ground becomes immaterial, since, the judgment being reversed, the costs will be retaxed upon another trial. The case being equitable in its nature, the presiding judge has some discretion in the. matter.
Judgment reversed.
All the Justices concur. ,