of care and prudence in going upon the trestle, in going there encumbered with the boy, and in failing to take the requisite steps to save himself after the danger from the train became imminent and the opportunity to escape was still at hand. Judgment reversed.

RAILROADS LIABILITY TO TRESPASSERS ON TRACK.-When a trespasser upon the track of a railroad is injured by a train the company is not liable unless the injury was wantonly and willfully inflicted, or was the result of such gross negligence as evidences willfulness: Lake Shore etc. Ry. Co. v. Bodemer, 139 Ill. 596; 32 Am. St. Rep. 218. To the same effect see Central R. R. etc. Co. v. Vaughn, 93 Ala. 209; 30 Am. St. Rep. 50, and extended note.

REED V. AUBREY.

[91 GEORGIA, 485.]

EXECUTORS AND ADMINISTRATORS-SALE OF MORTGAGED LANDS BY.-A regular and valid sale by an executor during administration of land belonging to the estate and mortgaged by the testator vacates proceedings to foreclose the mortgage, and bars the condition of a judgment of foreclosure; but if such sale is voidable this rule does not apply, and the mortgagee may elect not to ratify the sale by continuing to prosecute his proceedings to foreclose the mortgage, as well as by equitable action against the executor to have the sale vacated.

HUSBAND AND WIFE-AGENT'S WIFE INCOMPETENT TO PURCHASE AT HIS SALE. A husband who is an agent to sell land has no power to make a valid sale thereof to his wife. EXECUTORS AND ADMINISTRATORS-SALES OF LAND-WIFE of Agent of EXECUTOR AS PURCHASER — EFFECT ON MORTGAGEE. If a husband acting as agent for an executor sells land belonging to the estate at public sale for cash, and the father of such agent's wife bids off the land on his own account, but in reality for the benefit of his daughter, without paying any thing or taking a deed, the sale, as to him, is incomplete, and if the daughter is afterward, with the consent of all of the parties, substituted in place of her father as purchaser, and the terms of the sale are so modified as to make it partly for cash and partly on credit, this is not a binding administration, as against a mortgagee of the land, from the testator, and such mortgagee may elect either to ratify or repudiate such sale.

ACTION to foreclose a mortgage made by W. Aubrey and wife. After the death of said Aubrey his wife was appointed his executrix; as such executrix Mrs. Aubrey gave her son, G. H. Aubrey, a power of attorney to sell the land in dispute for cash, to pay debts of the testator and to make deed to the purchaser. After due and proper proceedings the land was sold by the sheriff at public sale, one Smith, the father of

AM. ST. REP., VOL. XLIV.-4

said Aubrey's wife, being the purchaser. A deed to the land was afterward made to Aubrey's wife by him, as attorney in fact. Judgment for defendant and the plaintiff appealed. J. B. Conyers and W. K. Moore, for the plaintiff.

R. W. Murphey and T. W. Akin, for the defendant.

437

436 LUMPKIN, J. 1. An executrix has the right, in the due course of administration, to sell the property of her testator for the purpose of paying the debts of the estate, or carrying out the provisions of the will. Indeed, a sale of realty by an executrix will divest the lien of an existing judgment, unless the property is under levy at the time the sale is made. Accordingly, in Newsom v. Carlton, 59 Ga. 516, this court ruled that a proceeding to foreclose a mortgage upon realty given by an intestate would be defeated by an administrator's sale regularly made, and that the mortgage creditor would have to look to the proceeds of the sale in the administrator's hands. The foregoing rule is, of course, applicable to a sale made by an executrix which is lawfully conducted and in all respects valid. The rule is different if the sale be either void or voidable. If the sale is absolutely void of course the rights of no person could thereby be affected; and as the law gives to creditors the right, at their option, to either ratify or set aside a voidable sale, the same consequences would result if this option were exercised by choosing the latter alternative. We do not think it would be necessary, so far as the executrix is concerned, for the creditor seeking to foreclose his mortgage to institute a separate and distinct proceeding to have the sale declared void. His election may be made by continuing to prosecute his proceeding to foreclose the mortgage, and may be thus effectuated as well as by an equitable petition to have the sale vacated. Obtaining a judgment of foreclosure being entirely inconsistent with a ratification of the sale, there could be no misunderstanding as to the creditor's position, and the enforcement of the mortgage fieri facias after foreclosure would, in a more direct manner, accomplish the same result as a decree vacating the sale.

2. What is said above is applicable as between the mortgage creditor and the executrix. As to the rights of the purchaser from the latter, and as to what course the creditor, after obtaining a judgment of foreclosure, should pursue, is

not now in question. The purchaser not being a party to the present litigation, and not having been heard upon the questions involved, it would be improper for this court to now undertake to solve and adjudicate these issues. We, there fore, do not feel at liberty to pass upon them, but will leave the same open for future investigation and determination, should this hereafter become necessary.

3. The law is well settled that an agent to sell land cannot himself become the purchaser, unless the owner, with a full knowledge of all the facts, consents thereto. The principle which renders an agent incompetent to 438 purchase from himself renders him alike incompetent to sell to his wife. As he is forbidden to purchase that which another has intrusted him to sell, for the reason that the temptation to take care of himself will override the duty he owes to his principal, it requires no great amount of reflection to perceive that he will ordinarily be influenced by the same motive in selling to his wife. It is hardly possible for a wife to make an advantageous contract of any kind without more or less benefit therefrom resulting to the husband. In this sense, as in many others, "the twain are one flesh," and the selfishness and desire for gain common to most mortals makes it expedient to prevent a husband and wife dealing between themselves with the property of another of which the husband bas charge in a fiduciary capacity. A very strong and well-reasoned case in support of the above doctrine is that of Tyler v. Sanborn, 128 Ill. 136, 15 Am. St. Rep. 97, in which it was held that a purchase by a wife of land for the sale of which her husband was agent, with notice of his agency, will be set aside as fraudulent at the instance of his princi pal, who had no notice as to who was the purchaser, although there was no fraud in fact, and the wife purchased against the remonstrance of her husband, and paid for the property out of her separate estate. The facts of that case show that parties in the East were anxious to sell certain lots they owned in Illinois. Their agent in that state bargained the lots at one thousand dollars to one B, and reported the fact to his principals, who accepted the offer and forwarded to the agent a deed conveying the property to B. Afterward B declined to accept the deed, and the agent's wife then proposed, against her husband's wishes, to pay the money and take the property herself. The matter was finally consummated by a delivery of the above-mentioned deed to B, and

his subsequent conveyance to the agent's wife. This sale was afterward set 439 aside at the instance of the owners, as fraudulent in law against them, although the conduct of both the agent and his wife was absolutely free from all fraud in fact. This decision carries the doctrine announced in the case at bar to a very considerable length, and two of the seven justices dissented; but it serves to show that the law in cases of this kind has been, and should be, very strictly enforced. The fact that in Illinois the husband is entitled to dower in the real estate of the wife undoubtedly contributed to some extent to the conclusion reached. We have no such law in Georgia, but no one can doubt that a husband has practically a beneficial, though not a legal, interest in the property of his wife. Reference is here made to the authorities cited in the case just mentioned, and also to Davoue v. Fanning, 2 Johns. Ch. 251, an examination of which will throw some light upon the question under consideration.

4. In the present case the husband, acting as agent for the executrix, sold the land at public sale, the terms being cash. The father of the agent's wife bid off the land on his own account, but really intending that the purchase should be for the benefit of his daughter. He paid nothing, took no deed, and the sale to him was not consummated. Thereupon the daughter, by her own consent and that of her father and her husband, the latter being, as already stated, the agent making the sale, was substituted in the place of her father as purchaser, and the terms of the sale were so modified as to make it partly for cash and partly on credit. Under these eircumstances the wife was really the purchaser from her husband; and, moreover, there was an unauthorized change of the terms of sale. We therefore have no difficulty, in view of the principles hereinbefore stated, in holding that the aboverecited facts did not constitute a binding administration of the property as against the 440 creditor holding the mortgage, and he undoubtedly had an election to ratify or repudiate the transaction in question, as he might deem proper. This we adjudicate, so far as the executrix is concerned; but Bs between the creditor and the purchaser from the agent of the executrix, we leave the matter to be hereafter adjusted by agreement, or by such proceedings as may be appropriate. Judgment reversed.

AGENCY - VALIDITY OF SALE TO WIFE.-An agent to sell cannot convey the property to his wife as her separate property without the knowledge and consent of the principal: Tyler v. Sanborn, 128 Ill. 136; 15 Am. St. Rep. 97, and note. An agent, though authorized to convey, cannot execute a conveyance to himself and his wife for a nominal consideration. Such an act would be a fraud on the principal, and would render the conveyance void: Winter v. McMillan, 87 Cal. 256; 22 Am. St. Rep. 243, and note. A husband cannot be a purchaser at a sale of the property of an estate of which his wife is acting as executrix: Scott v. Gorton, 14 La. 111; 33 Am. Dec. 576. See, also, the extended note to Potter's App:al, 7 Am. St. Rep. 280.

AUGUSTA EVENING NEWS v. RADFORD.

[91 GEORGIA, 494.]

LIBEL-PUBLICATION TENDING TO EXPOSE OFFICER TO PUBLIC CONTEMPT. A willful, malicious, and false publication in a newspaper, charging public officer with unbecoming and improper conduct merely to get fees, tends to expose him to public contempt, and is therefore libelous and not privileged. LIBEL-PROBABLE CAUSE QUESTION FOR JURY.-In an action for libel based on a newspaper publication, charging a public officer with improper conduct merely to get fees, the question whether there was probable cause on the part of the publisher for the belief that he acted on reliable and trustworthy information, and whether he acted in perfect good faith, or published the article willfully and maliciously, with intent to bring the officer into public hatred and contempt, is a question for the jury to determine.

ACTION for libel, based upon the following publication which appeared in the Augusta Evening News, a newspaper of general circulation:

"IT SHOULD BE STOPPED. "A Style of Soliciting Business Which the Grand Jury Should Investigate.

"It is not a new sensation, but it is a very bad style for Augusta to solicit business for magistrate courts at the daily levees of the recorder. The attention of the Evening News was called this morning by Lieut. Hood to this practice, and he pointed to Constable W. W. Radford on the outside of the courtroom talking through the window to Fannie Brooks, a prisoner seated on the dock. The result was a peace warrant issued by Fannie Brooks against Fannie Edwards. Both women were before the recorder this morning, and fined $1 each for a simple war of words. There was nothing serious about the case, but now it will cost them trouble and money to pay the cost, when there is no danger of any assault being