guardian for information, *378whether or .not it is to the- interest of,the.-ward that the sale be .confirmed. If the. guardian does not dissent,- hut is- silent, ¡as he;- was in this ease, * a. confirmation • is a -matter. 0£ course.
. In.Scotland, whenever there is a judicial.=sale, *a..person who is* -called; an agent, :is.-.appointed* by the -, court, torascertain, and to; inform thern as. to the1 value of the property tc be sold. "In the ease of McKenzie, (6 Ves. 630, note (b) the British house set aside,;after the .lapse.of-a. *great number of years,, a purchase under an. order of1, sale made*by the -court: ofsession, by one of. these.-agents ; the lord.chancellor saying, that , he who was interested by the court to- instruct them how. to. sell, should not be permitted to acquire-a title .under the-authority- ef1 the court.
"We-are,* however, referred to:a< direct-decision,-.as is.said, of the . supreme. court,: on the very, poiñt now.under- consideration. (Jackson v. Woolsey, 11 John. 446.) ..If.I understand that. case, it does not ; at, all impugn the. principles, which the other cases, as it appears*to. me, ¡so. firmly, establish; ,Mt the report of that Lease ¡is not -very, perspicuous,' and I am- not very certain that-1 understand-it. 'We have, in the.report, the title to-the proceedings". in .partition which were in* question. ; It is stated that the.infants: appeared by William Giilspie, as- their--guardian. The saléis represented to-have been: to Matthew Gillespie; and yet'it is certain,- that-both- the counsel *and court-assume ;as-a fact, that the. sale was to the guardian. Again *r I do; not understand, that in this suit of* Jackson v. Woolsey, the wards were endeavoring-to set aside a sale to, their-'guardian. *Thewards were the heirs of Jane Gillespie. The sale -was" the .estate of the infants,- which they had inherited 'from1 her;; and - nnder a commissioner's deed consequent". on-thafc sale,' the defendant, Woolsey,'- 'claimed. The lessors of ¡the .plaintiff were the heirs- of James -Neely. Now,- if * in Jackson v. Woolsey, it was not the-wards who were endeavoring to-set- aside the sale to-their, guardian, then thedoctrine of-that ease is entirely coincident with, other-cases on the-subject: for it is-admitted,: that a-sale-to a - guardian, or trustee is not-absolutely'void,-but is1 only *380voidable: and,, unless fraudulent, can be,impeached by no one but a ward, or a cestui que trust.(a)
*But if we .are -to understand, the supreme court as deciding, as a broad and general principle, that " the sale to the guardian conveyed .a title to him - which could not be impeached by the- ward,-.because -there was.no fraud, and because the sale was public-to the highest bidder, and made by .the commissioners, according.to the order of the court," then I feel-myself , constrained, to dissent from-that decision.
I hope, that in any thing I shall ever say or do, I shall-manifest.the unfeigned deference I feel for the members of the court-which pronounced the- decision in the case mentioned. But we are to take care that our respect