(dissenting) : I would be false to my convictions if I failed to announce my dissent to the conclusion reached by the majority of the court in this case.
It is admitted that the sale by the guardian to her husband was free from actual fraud, so that the question presented is, Can a sale be made for a full consideration, in the best of faith, by a husband or wife, acting in a fiduciary capacity, to the consort ? My brethren say not, and that such sale is not only void*629able but absolutely void, and can be avoided by any one in interest at any time without tendering or paying back the consideration received. I do not find ground for that conclusion in reason or authority.
I find no fault with the proposition that an agent or trustee cannot sell to himself. Such a sale is void —is no sale ; for one cannot sell to himself. The same person cannot be seller and purchaser at the same time; but that principle finds no application to the facts at bar, although the opinion of the court seems to be based largely upon it.
Nothing is more strongly fixed in Kansas law, both by statutory provision and judicial decision, than that, so far as property rights and interests are concerned, husband and wife are as distinct as though they were strangers. The statute provides that a married woman may deal with her property, real or personal, and enter into any contract with relation to the same, in the same manner and to the same extent and with like effect as a married man may in relation to such property. While in the marital relation, her property remains to her sole and separate use to the same extent as though she were not married. She may sue, and is liable to be sued, in the same manner as if she were unmarried. She may carry on any trade or business, perform any labor or services on her sole account, and the earnings arising from such trade, business, labor or services are her sole and separate property and may be exclusively used and invested by her in her own name. She may deal with her husband, with respect to her property, exactly as though she were a stranger to him; and in all these respects our common, everyday observation gives us to know that these privileges are frequently exercised by and between those occupying the marital relation. Although our ancestors *630feared that great calamities might come were these things to exist, thus far we see no indications of the heavens falling or the social fabric collapsing because of them. This court in many cases has sustained to the fullest the rights of a married woman in these respects.
What logic is there in the claim that the wife may legally sell and convey her own property to her husband while acting for herself, and at the same time condemn, as utterly void and of no force whatever, a like conveyance made by her in the best of faith and for a full consideration, when she is acting in a fiduciary capacity for another? And especially, how out of harmony with logic is such conclusion when we couple with it the thought that such sale has passed the scrutiny and received the commendation and approval of a court vested with full jurisdiction to supervise and order such sale ! I am free to say that in my opinion such sale is perfectly valid, and is not even voidable.
The only case to which we are cited, of a similar nature to the one at bar, is Crawford v. Gray, 131 Ind. 53, 30 N. E. 885, which was a cáse where a wife purchased at an executor’s sale conducted by her husband and another as executors. -No fraud or collusion was there charged, and it was there urged, as here, that the wife could not become the purchaser because of considerations growing out of her relation to the executor. The court, at pages 54 and 55, in part said :
“Under the law of this state, as it is now and was at the time of this sale by the executors and purchase by the appellee, the wife had quite as distinct and individual an-existence relating to her light to contract for and purchase real estate and take title in her own name, and hold, use and enjoy the same, as did her husband.
*631“She has the same right to invest her own money in the purchase of real estate as her husband, and regardless of the will of her husband. When once the title is vested in her, true she cannot convey or encumber the same except by deed in which her husband joins, but there are no restrictions on her right to purchase and take title in herself. This she can do without his aid or consent, and he has no legal power to restrain or prevent her from doing so.
“At the executors’ sale the land was offered at public auction. In offering the land for sale the executors were acting under and in pursuance of an order of court. All who desired had the right to bid and become purchasers. The wife of one of the executors having the right to use her individual means as she willed, she had the same right to bid and .become a purchaser in good faith as did any other individual, and to authorize an agent to act for her and bid the land off for her, and take title in her own name. Before the purchase the wife had no interest in the land. The husband was acting in a fiduciary capacity ; it was not necessary that the wife join him in a deed to pass title. The title was not even in the husband. It was the title which the testator held at his death that the executors conveyed to the wife. There is no fraud charged upon the part of either the appellee or the executors, or any collusion between the appellee and her husband.”
In Tyler et al. v. Sanborn et al., 128 Ill. 136, 21 N. E. 193, 15 Am. St. Rep. 97, 4 L. R. A. 218, cited in the majority opinion, the court held that a sale like the one herein described was voidable, not wholly void, from which conclusion the chief justice and Mr. Justice Bailey dissented, and from this dissenting opinion I quote (pages 146 and 147) :
“It is assumed in the opinion of the majority of the court, and I think correctly, that no fraud in fact is shown, the decision being based wholly upon the assumption that there was such fraud in law as must necessarily invalidate the transaction. I make no *632question as to the soundness of the doctrine that an agent employed by another to sell his property cannot, either directly or indirectly, become the purchaser, and that, if he does so, his principal may interpose and avoid the sale. But that is not this case. The purchaser here was not the agent, but another person, who was sui juris, and capable of acquiring, owning and controlling her separate property wholly independent of any control or interference on the part of her husband.
“The opinion treats the purchase by the wife as being the same in legal effect as though made by the husband. This doubtless would be the case if the wife were still laboring under the disabilities imposed by the rules of the common law. But our statute has so far emancipated her from those disabilities as to .place her in all essential respects in the same legal position, so far as property rights are concerned, as though she were a feme sole. Her separate estate is no longer subject to either the rights or the control which, at common law, resulted to the husband from the marital relation'. She now has the same control over her estate that her husband has over his. She has the same legal power to acquire property, to buy and sell, or engage in business, she would have if she were unmarried. In respect to property rights and business transactions she is, in contemplation of law, a stranger to her husband, and may act independently of him, or assume a position adverse to his.”
But perhaps I do violence to the argument contained in the majority opinion in assuming that the conclusion reached grows of necessity out of the marital relation. I am not sure but the argument is that it grows out of the close personal interests based upon this relation, as that seems to be the idea running through the quotation from the brief of counsel for the defendant in error, and also the quotation from Tylor v. Sanborn, supra.' This consideration would be very potent if the question were one of actual fraud.
*633The relation of husband and wife is, indeed, or should be, one of the closest and most intimate known to humanity, and it generally is so, but not' always. It is not infrequent that the relation of parent and child, brother and brother, or even friend and friend, is more intimate and confidential, especially in relation to property, than that of husband and wife. How can we say, as a matter of law, that a sale in the one case would be good and in the other absolutely void ?
My brethren by this decision say that no matter how adverse the interests of husband and wife actually are, how antagonistic and at arms’ length their dealings may be, all this cannot be considered when one acting as a trustee comes to sell the trust estate to the other; ■ that the sole fact that the relation of husband and wife exists between them makes the transaction, as a matter of law, fraudulent and void, which as a matter of fact is not fraudulent, but for the highest interest of the cestui que trust. Could legal absurdity be carried further ?
But granting that a sale made by husband or wife in a fiduciary relation to the consort is voidable, I most strenuously insist that such sale, having received the approbation of a court which had full jurisdiction of the parties and the subject-matter, is not so absolutely void as to be disregarded upon a collateral attack. It is granted in the majority opinion that an attack by an action in ejectment is a collateral one.
In this case, we find that the guardian duly appointed by the probate court filed a petition, in all respects regular, in that court; received its proper legal order to sell the minor’s interest in the real estate involved; that such real estate was sold for a full consideration, without any fraud; that such sale was *634reported to the' court, and the court, after due consideration, presumably knowing all of the facts relative thereto, confirmed the sale, and directed the issuance and delivery of a deed to the purchaser. In doing so, it at no point exceeded its jurisdiction. It, following the supreme court of Indiana, held that the sale was good. Admit, in this it was wrong; that it should have held with the supreme court of Illinois that it was voidable ; or admit, following this court, now for the first time in this country announcing that such sale was void, the probate court adjudged that it was good, surely this adjudication was not void, even though the sale was. If the court was wrong, it was but an error of law, and we revolutionize all of our ideas concerning the inviolability of the orders and judgments of courts of competent jurisdiction when we say that such an order may be disregarded upon á collateral attack.
The statute (section 133 of the executors’ and administrators’ act, Gen. Stat. 1901, § 2938) says of a deed executed as was the one in this case that it shall “be received in all courts as presumptive evidence that the executor or administrator in all respects observed the directions and complied with the requisitions of the law, and shall vest the title in the purchaser in like manner as if conveyed by the deceased in his lifetime.”
Is it possible that this statute goes for naught, and in a collateral attack all errors committed by the court in ordering such deed may be brought to light? I confess myself unable to say where such a rule will lead us. The authorities opposing such rule are so abundant' that I shall not cite them.
Let us illustrate : A guardian, being ordered to dispose of a minor’s property for his sustenance, educa*635tion, or other proper purpose, makes a sale to the husband or wife for a full consideration ; the consideration is paid and the sale is confirmed; every one has acted in the best of faith and in the honest belief that the law has been in all respects fully complied with ; and the money received by the guardian is expended for the purposes desired. Some years thereafter the ward brings an action in ejectment. The purchaser, without being recompensed in any manner for the money paid by him, is wholly deprived of his title, as it will be remembered that the court in this case holds that such a sale is absolutely void, and, if so, no necessity for a tender or repayment exists as a prerequisite for recovery. I have searched the books in vain to find warrant or authority for such injustice. None of the cases cited in the majority opinion goes to that extent. It is only where a trustee sells to himself— that is, where there is no sale — that this rule obtains. '
Take, for instance, the case of Tyler v. Sanborn, supra, where an executor sold to his wife. Such sale was held to be voidable only, the court directing that the conveyance should be canceled upon repayment of the amount received by the executor with interest thereon.
In the case of Davoue v. Fanning, 2 Johns. Ch. 252, which is the leading case in this country, where the executor caused lands to be purchased for the benefit of his wife, such sale was ordered to be set aside upon condition that the consideration money be repaid. The same is true in the case of Riddle & Parker v. Roll et al., 24 Ohio St. 572. In the other cases cited where sales were held void, the sale was made by the trustee to himself or indirectly in his interest.
*636It is urged in this case that the form of the action is such that the setting aside of the sale cannot be conditioned upon an equitable adjustment of the price paid. If this be so, so much the worse for the plaintiff. It was she who selected the form of the action. Surely the defendant ought not to be wronged, because she selected such an action as would not permit him to be dealt with honestly. I do not believe the plaintiff ought to be permitted to recover the land and retain the price honestly paid for it.