OPINION ON REHEARING.
Day, J.Upon the petition of plaintiff, a rehearing was granted upon the éth point of the foregoing opinion. It is insisted that Ann McGrevy stood in such a fiduciary relation *529to the property in question that she could not acquire a good title, even though purchased from one who could acquire a good title. The authorities cited by plaintiff’s attorney do not, as we understand them, sustain this position. The case of Silverthorn v. McKinster, 12 Pa. St., 67, is directly in point in support of the opposite doctrine.
5. —:-. That was a case where executors, under a power given to sell lands, sold to one Burns, and Silverthorn, one of the executors, afterward purchased from Burns. The court say: “As then, Burns was, by the sale, invested with an estate recognized by our laws, there was nothing to hinder him from selling and conveying it to whomsoever he pleased. Nor is there anything in the law, or the transaction itself, to prohibit Isaac Silverthorn from becoming the purchaser.
“There is no suggestion of mala fides in the sale made by the executors of Burns, and it is clear that, in the absence of fraud, one, who has sold an estate as trustee, may after-wards fairly repurchase it for himself. Painter v. Henderson, 7 Barr., 48.”
It is further insisted that Ann McGrevy, being found in possession of the title, the burden is thrown upon her to show that she acquired her title from a hona fide purchaser. The abstract of title set forth by the defendant in her answer shows that the property in controversy was sold under execution to J. W. Heisey and Charles O’Brien, who assigned the certificate of purchase to Mary McGrath, and she to Ann Mc-Grevy. From the exhibits attached to the replication it appears that Charles O’Brien was one of the administrators of the estate of William Welch, deceased. In Fleming v. Foran, 12 Ga., 594, it is held that an executor cannot become the purchaser of land sold under execution against his testator, but that the sale will be set aside on the application of the legatees, provided such application be made in a reasonable time, otherwise the right will be considered waived or abandoned. The reasoning adopted in this opinion is quite satis*530factory, and the rule established is, we think, the proper one. See also Spindle v. Atkinson, 3 Ind., 410.
6. —:-. Under the rale recognized in Fleming v. Foran, supra, a purchase by an executor under an execution against his testator is not void, but simply voidable, at the election of the legatees, exercised within a reasonable time. Now, from a reference to the petition in this case, it appears that the execution sale to Heisey and O’Brien is not attacked. No effort is made to set it aside. The petition simply alleges that Ann and Hugh McGrevy had no mortgageable interest in the property, and that the mortgage and the sale pursuant thereto are void, and the petition, referring to the decree of foreclosure of the mortgage, prays that the decree and the proceedings thereunder may be set aside. In the application also, no reference is made to the purchase at execution sale by Heisey and O’Brien. It is simply alleged that Ann Welch by reason of her relationship to the estate and the parties, was incapacitated to acquire a title to the property adverse to the plaintiff. The theory of both the petition and the replication seems to be that, without reference to any illegality in the purchase of Heisey and O’Brien, Ann Welch, stood in such fiduciary relation to the property that she could not through any one acquire a good title to the property. This position we have shown to be incorrect. We need not speculate upon what the result might have been if the plaintiff had alleged the invalidity of the purchase at execution sale by Heisey and O’Brien, and had sought to set that aside. Relief can be granted plaintiff alone upon the case made in her ^leadings.
7. ksactice: reiiemunitea ings. The fact, appearing in defendant’s answer, that she acquired title by assignment from Heisey and O’Brien, does not show her title to be invalid, for the interest acquired by ’ n j Heisey and O’Brien was voidable only at the election 0f plaintiff, and must stand until she asks to have it set aside. The court cannot set aside the sale to Heisey and O’Brien, unless plaintiff asks that relief. The mechanic’s *531lien and the judgment thereon being affirmed, it may be that plaintiff would not desire to have the sale set aside and the property resold. Without the setting aside of the salé to Heisey and O’Brien, the plaintiff can have no relief, and the plaintiff nowhere in her pleadings asks this relief. The former opinion is adhered to.
Affirmed.