*402The opinion of the Court was delivered by
Sergeant, J.If the object of the present proceeding is to set aside the sale to Thomas Creveling of the 5th April 1834, it seems to be a singular mode of arriving at it. The amicable action and issue recite that the deed was made to Creveling by the executors for the purpose of defrauding the other devisees, and they were cited to show cause why they should not be discharged from the executorship. But (except the cases of lunacy or drunkenness) the only ground of such proceeding against an executor in the Orphans’ Court that I am aware of is under the Act of 29th March 1832, for wasting or mismanaging the estate, or because he is like to prove insolvent, or has neglected or refused to exhibit true and perfect inventories, or render full and just accounts; and the Orphans’ Court is authorized to require security, on default of giving which the court may, by the 23d section, dismiss him, except in the special cases mentioned in the proviso to the 22d section, which do not exist in this case. So that the application appears to be irregular in its terms, and, if the executor should choose to give security for the performance of his trust, the result of the issue would fail to effect the object proposed.
But there is another difficulty which has grown out of this mode of attempting to try the question. The issue formed appears to be whether the deed was a fraudulent one, and not bond fide for a fair price. In the charge of the court, however, the jury were instructed that whether the sale to Creveling was or was not bond fide and for a fair price, yet if it was made for the purpose of getting him to buy in the land for the defendants, then it was a fraudulent sale within the issue. In giving this instruction, we think the court below erred. Without limiting ourselves to the words of the issue, (which indeed by this interpretation would present a double issue), the rule of equity which prohibits a trustee for sale from purchasing the trust property, is not founded on his being necessarily guilty of fraud in so doing. It is a rule of public policy which applies in all cases, whether there be fraud or not, and indeed its great object is to prevent fraud by taking away the temptation to commit it. Another reason for the rule is the difficulty, if not impossibility in many instances, of ascertaining whether there was fraud or not.
If, in the present case, the sale was not made for a fair price, it would be fraudulent within the issue. But if it was made to Creveling as the agent for the executors, it would be prohibited by the policy of the law, however honestly designed or effected by the executors. The remedy for the party, however, in that case must be by some other proceeding.
We perceive no error in the matters contained in the bills of exception.
Judgment reversed, and venire de novo awarded.