Petition for partition, in which the responuent denies the petitioners’ title. After a verdict for the respondent, the case comes before the court on two questions reserved at the trial.

1. The first point relied upon, to show that the administrator, Silas Blood, sen. as administrator on the estate of Silas Blood, jr. the intestate, did not comply with the rules of law, and that nothing passed under his deed, is, that he did not take the oath required by law, before fixing on the time and place of sale, but only before the sale was actually made. It is to be considered that the sale was made before the passing of St. 1817, c. 190, which provided in terms, § 11, that the oath should be taken “ previous to fixing upon the time and place of the sale; ” but the sale, in the present case, must be governed by the preceding law. St. 1783, c. 36, § 17. The argument against the validity of the sale is founded on a supposed implication from the form of the oath. The administrator was required, by that act, to make oath in this form: “ That in disposing of the estate,” &c. “ I will use my best skill and judgment in fixing on the time and place of sale, and that I will exert my utmost endeavors,” &c. . This clause is preceded by a preamble, reciting that “ it sometimes happens that for want of prudent management in executors, administrators, guardians, &c. who are empowered to sell real estates, such estates are disposed of below their true value, to the great injury of heirs and creditors.” The supposed implication is, that as the oath looks to the future, in regard to fixing the time and place of sale, it must be taken previously to any *236and all the acts incident to the sale. This implication would be stronger, had not the same section of the statute required, in terms, that this oath should be taken “ previous to the sale.” But the expression of a time within which it shall be made, controls the implication arising from a mere formula adapted to general use ; and therefore the court are of opinion, that as the law then stood, the taking of the oath, prior to fixing on a time and place of sale, and of giving notice thereof, was not a condition precedent to the valid execution of the power.

2. The next question is this:. Supposing that Blood, when he made sale of the estate of his son, under a license of court, made the purchase himself, under color of a sale to Johnson, or, what is equivalent, engaged Johnson to purchase it on his account, and if such sale was fraudulent and void as against the heirs, can they now recover it against Hayman, if he was a bona fide purchaser for a valuable consideration, without notice of the fraud ?

We are strongly inclined to think, that within the meaning of the well known rule, that a trustee to sell cannot be a purchaser, an administrator selling under a license is such a trustee, and cannot himself directly or indirectly be the purchaser. But it is so held, 'for the benefit and security of the parties interested. The license is pursued; it is a good execution of the power ; and the purchaser has a good right to hold against the grantor and all the world, except those beneficially entitled to the proceeds, and interested to have a sale made at the best price, and on the best terms. In their favor, and at their election, the law will avoid such sale, not because it is in fact fraudulent, but because the administrator is the only party who can and who should act for them; and he has so many means of disparaging the sale, if he has an adverse interest to subserve, and in modes which could not be detected, that the law will not subject him to the temptation of doing so, nor will it permit him to defend himself, by showing that the estate brought as good a price as could have been obtained for it from any other person. It would be *237substituting after opinions of value in the place of the test of a free, actual competition of purchasers. It is therefore a sale voidable, and not void. Jenison v. Hapgood, 7 Pick. 1, and 10 Pick. 77. Harrington v. Brown, 5 Pick. 519. Litchfield v. Cudworth, 15 Pick. 23. Being voidable only, an estate passed, by the conveyance, to,the grantee, subject to be defeated by the heirs. But it appears, in the present case, that long after this voidable sale to Johnson, the estate passed, by various mesne conveyances, to the respondent. It was then left as a fact to the jury to consider whether the respondent took the estate for a valuable and full consideration, and without notice of the fact that it had been purchased in, at the administrator’s sale, for the administrator himself; and the jury found that he did.

The court are of opinion, therefore, that the respondent acquired a good title, by such conveyance, though it might have been avoided by a suit against the first grantee, or one taking under him; with notice of the defect. Somes v. Brewer, 2 Pick. 184. 4 Kent Com. (5th ed.) 464.

A point was made at the trial, on the objection of the petitioners to the competency of Micah Eldridge as a witness for the respondent, on the ground that he was a surety on the administrator’s bonds. We cannot perceive, without some further fact connecting him with the parties in this suit, how he was interested in the result of this action, or how the judgment in this suit can subject him to a suit, or exempt him from one, on his bonds.

Judgment on the verdict for the respondent.