The opinion of the court was delivered, January 3d 1871, by
Sharswood, J.
— This was a compulsory nonsuit entered in the court below, on ¡motion of the defendants, after the conclusion of the evidence of the plaintiffs. The question then is, whether the plaintiffs had made out a case which in any aspect entitled them to go to the jury ? No actual fraud was pretended. But it was maintained that as it appeared that William Cochrane, the administrator of John Cochrane, Sr., had become the purchaser at his own sale, made by the order of the Orphans’ Court, his title and that of his heirs were defeasible at the election of any of the cestuis que trust who did not agree or assent to the purchase. It is not necessary to decide whether, when one of the heirs of a decedent, who happens to be also the administrator, is ordered by the Orphans’ Court to make sale of the real estate under proceedings in partition, he is thereby precluded from his equal right *311■with all the other heirs of bidding at, and becoming a purchaser at the sale. It may be doubted whether the doctrine of Fisk v. Sarber, 6 W. & S. 18, does not apply. The administrator, as such, has nothing to do with the realty; he is the mere organ of the court in making the sale, and it is possible that he ought not to be regarded as in any sense a trustee until the purchase-money has been received by him. But in reference to this we intimate no opinion. It would of course be advisable in all such cases, if the administrator has any wish to be a bidder, either that an" order should be obtained from the court allowing it, or that application should be made for the appointment of some other suitable person as trustee for the purpose, under the 44th section of the Act of February 24th 1834, Pamph. L. 81, which' the court has authority to make whenever the executor or administrator refuses to execute the order. In this case, however, upon the plaintiffs’ own evidence, although there may have been some understanding among the heirs before the sale that William was to become the purchaser of one of the properties, and John of the other, yet according to the clear testimony of Samuel Cochrane, the only witness produced and examined, the agreement was not made until after the sale, at which the whole was knocked down to John Cochrane. He said : “ No particular agreement except that John bid off the land; no price fixed until it was bid off; the agreement was fixed after it was knocked down.” And again: “John Cochrane claimed Armor’s share; were notified of the sale, that it would be sold on this day; two of my sisters bid on it“ the land was cried for an hour.” The sale was confirmed by the Orphans’ Court, and the deed made accordingly by William Cochrane to John Cochrane for the whole, August 24th 1831. Nearly nineteen years afterwards, on petition to the Orphans’ Court, William Cochrane obtained a decree for the specific performance of this parol contract, John Cochrane being then deceased. It was certainly competent for William, after the sale, to purchase from John — no actual fraud or deterring of bidders at the sale being pretended. The thing was evidently an amicable arrangement and understanding among all the heirs, Mrs. Armor > included, as appears by the petition of William Cochrane to the Orphans’ Court, which is a part of the testimony produced by the plaintiffs. That neither she nor her husband were at the sale is accounted for by the fact that his curtesy estate in her purpart had been sold by the sheriff and was vested in John Cochrane. We see no evidence, therefore, to affect the heirs of William Cochrane with any trust for Mrs. Armor or her heirs as to this land.
The deposition of Samuel Cochrane was clearly inadmissible. The witness himself was on the stand under examination. What he had stated before could not be shown, as it seems, for any *312purpose. What the deposition was offered for does not appear. He had at the time testified to nothing which the deposition touched upon, and if he had, the plaintiffs could not contradict and impeach their own witness. But even if admitted, it would not have helped the plaintiffs’ case. It is plain that in the proceeding in which that deposition was taken, it was not material at what point of time, whether before or after the property was struck off, the agreement was entered into; and it is, after all, mere inference from the general language used in the deposition that the witness then stated it to be before and not after the sale.
Judgment affirmed.