Mellen C. J.
In the argument of this cause several objections have been made and urged against the title of the deman-dants. as disclosed by the report of the judge who presided at the trial. On all these, on both sides, the arguments have been able, and we have listened to them with attention and examined them with care. Passing'over some of the points, as not of sufficient importance to require particular notice, we have placed our decision on a number of distinct grounds, which seemed to demand our consideration ; and we now proceed to a statement of those facts and principles of law which have conducted us to that conclusion and judgment which must settle the rights of the parties in this suit.
The demandants have counted on the seisin of George Innman, their father ; and they demand the whole of the premises described. But as it appeared by the deposition of Andrew Brim-mer, which was introduced by the demandants to prove their pedigree, that they were not entitled to the whole, but only to an undivided proportion of the demanded premises; inasmuch as their father George Innman was not the only child and heir of Ralph Innman ; they then introduced the will of Ralph Innman, io prove that all his real estate was devised to George Innman, his son ; and this will, thus introduced, must be considered by us as forming a part of the case, and have its legal operation accordingly.
It is essential to the maintenance of this action, at least, in its present form, that the seisin of George Innman should be proved, as alleged in the writ; or a seisin of an undivided proportion of the premises demanded. If we lay the will, as to the effects of the devise therein contained, out of the case, and inquire whether George Innman was seised of a proportion of the estate as heir [244]*244of his father Ralph Innman, the report shews os no satisfactory proof of such seisin. The will bears date May 5,1788 ; and the probate of it bears date July 18, 1788; of course the testator must have died sometime between those two days or dates; and Brimmer in his deposition swears that, the widow of George Inn-man, with her children, arrived in this country from England, in the autumn of 1788. From these facts it does not by any means appear that George Innman was living at the time of his father’s decease ; on the contrary the presumption is that he was not; as we find his widow was in this country in the autumn. If George was dead at the time of his father’s death, then no seisin whatever on his part is proved ; but as the fact is not reduced to a certainty, we are not at liberty to consider the presumption as a proper ground of decision upon this point; and we therefore proceed to examine the demandant’s title in another point of view.
As we have before observed, the will of Ralph Innman has been offered in evidence by the demandants, as a part of the case.; and its operation and effect are therefore to be considered, in connection with other facts, in forming our opinion ; and if they have, by their own evidence, shewn that the legal estate in the lands- demanded was never vested in George Innman, it follows that no legal right has descended to the demandants, to entitle them to maintain this action. The inquiry then is, what is the true construction of Ralph Innman’s will, in respect to the devise of his real estate. The words are — “I give and devise to my “ executor, all my real estate in Cambridge and elsewhere, to “ be sold as soon as is convenient after my decease ; and I here- “ by give him full power and authority to make sufficient deeds “ of sale in fee simple of said estates.” The testator then directs his debts to be paid out of the proceeds of the sale ; and in express words devises, not the land, but the money his estate should sell for, to George, and, in case of his death, to the person or persons who should, by the laws of England, legally represent them ; and appointed Herman Brimmer his sole executor.
A devise to trustees for payment of debts or for other purposes, passes the legal estate to the trustees. So a.devise to executors to sell and pay debts, passes the legal estate to them in trust. [245]*245This is the general principle. It is a power coupled with an interest. A conveyance or devise in trust cannot be construed as a conveyance or devise to use, where it is repugnant to the manifest intention of the person conveying or devising. These principles are established or recognized by the following cases and authorities, as well as many others. 1 Dane’s Abr. 244, 246, 247. Judge Trowbridge’s Reading 3 Mass. 673. Newhall v. Wheeler 7 Mass. 189. Goodwin v. Hubbard 15 Mass. 219. Somes v. Skinner 16 Mass. 356. Craig v. Leslie 3 Wheat. 563.
In the case at bar, the intent of the devisor,' and the language of the will, cannot be satisfied, according to decided cases, but by construing the devise to the executor as conveying the legal estate in fee to him in trust. lie was to sell the estate and give deeds in fee simple; and convert the real estate into personal, Thus by the devise the legal estate was vested in Herman Brimmer, as trustee for the creditors of the testator, and for George Innman, or his children; and nothing more ever vested in them than the equitable estate. If no sale of the estate was evei-made by the executor, then the legal estate has descended to his heirs ; being governed by the same rules as other legal estates, 1 P. Wms. 108. 1 Ves. 357. 1 Cruise 492, 493. If a sale has been made, then the fee or legal estate was passed to the purchaser, and never vested in George Innman; and if out of the proceeds of such sale the debts have been paid, and the residuum has never been paid over to George or the démandants, still such residuum cannot be recovered in a real action.
Can we, from lapse of time, presume a conveyance of the legal estate from Brimmer, the executor and trustee, to George Innman ; and thus find proof of his seisin ? The report furnishes no facts whatever as to the proceedings of the executor under the will. We know nothing of the testator’s debts, or whether he owed any; or whether the executor ever sold any part of the estate. If we indulge in presumption, it would be rational to presume that the executor did his duty, by complying with the directions of the will; and this surely would furnish no proof of any seisin of George Innman. We ought not to presume that the executor violated his duty, and without making any sale, convey[246]*246ed to George Innman, the cestui que trust, the whole of the estate; and, besides, when could this conveyance have been made ? George died in England, and probably before the will was proved, or even executed. All ground of presumption, therefore, fails, which could be favorable to the demandants. One general answer has been, by their counsel, given to the objection of the tenant, founded on the devise to Brimmer, of the legal fee simple estate, claimed in this qction by the demandants, as children and heirs of George Innman and grandchildren of Ralph Innman; which is, that as the tenants are strangers to the title, it is not competent for them to make this objection. And among other cases the counsel has, to this point, cited and relied upon the case of Newhall v. Wheeler 7 Mass. 189; in which Parsons C. J. in delivering the opinion of the court, says, “ No person u can set up the legal estate against the equitable estate, but “ the trustees, or some person claiming under them;” and then, after haying stated the seisin and possession which the demand-, ant had proved, under the cestui que trust, he proceeds and says, —“ for the actual possession is prinia-facie evidence of a legal ct seisin; and a stranger to the trust shall not be permitted to u control this evidence, by proving the existence of the trust C£ estate.” The first reply to this argument, and this authority, is, that the demandants in the case at bar, have never had any actual possession. But the principal and decisive answer which We have noticed before, is, that the tenant has not proved and set up the legal estate against the equitable estate. The de-mandants have themselves established those facts which shew that they have no title to recover. . If a plaintiff, in his declaration, shews that he has no cause of action, the defendant may surely avail himself of the fact; and so he may if the plaintiff defeats his own title by his own proof. If the estate was never sold by Brimmer the executor, and the legal estate now remains in his heirs, the demandants may commence an action in the name of those heirs, by their consent; or may by proper process seek a remedy against them, should they refuse to convey the legal estate, and thus unite it with the equitable.
[247]*247Perhaps, however, independent of the reasons hereafter assigned, our statute of limitations, might be considered as furnishing serious objections to the suggested course of proceeding by a new action. But, waiving all ideas on that point, at present, the demandants, on the facts^ before us, appear not to have the legal estate; and it also appears, by their own shewing, that their father never had it; and therefore it is clear that the verdict is wrong and must be set aside.
Here we might close, and leave the parties to the expensive consequences of a new trial, without any intimation of our opinion on some other points of the cause. But as several questions would again arise and be presented for decision, which have already been reserved and argued, and are now before us, on the report of the judge, we have concluded to decide them at this time. We may thus prevent any further delay, and shew the parties that a new trial would be unavailing to the demand-ants, even if they should distinctly prove that George Innman was alive when his father died ; or should have permission to amend by counting- on the seisin of Ralph Innman, instead of George Innman, and shaping their demand accordingly ; and having done either of these, should ou another trial, withdraw, or rather, not olfer in evidence the will, and should thus be able to obviate all objections arising from the devise of the premises demanded, in trust, which we have been considering. We accordingly proceed to the investigation of some other parts of the demandants’ title, and examine some other objections on which the counsel for the tenant has placed reliance. We pass over that which relates to the proof of pedigree; and also that which regards the manner in which the deeds from the committee were signed and executed; as well as some others; because their determination is not necessary; and because we think most, if not all of them are unfounded. We are also strongly inclined to the opinion, that the want of certain recitals in the deeds, which have been mentioned in the argument, furnishes no objection to their correctness and validity, or to the propriety of presuming certain facts, though not recited. We do not think that the eases cited as to officer’s returns are applicable. Officers are [248]*248under oath, and their returns are legal proof of the facts they certify, and if they are defective, parol proof cannot be admitted to supply deficiencies. But no law requires an executor, administrator, guardian or collector of taxes to set forth in their deeds all the anterior facts, as to their authority and proceedings; they need only state the capacity in which they profess to act; for if they do state all the particulars, such recitals would not be proof, as we have decided in Harlow v. Pike 3 Greenl. 438. The facts recited must all be proved on trial; unless in those cases where, from lapse of time or some peculiar circumstance or misfortune, they may be presumed. As to the supposed impropriety of presuming facts not recited, the above answer seems sufficient. But as the law has prescribed what steps were to be taken in making sales for nonpayment of taxes, the presumption, especially after the lapse of fifty years and loss of all records, is, that such proceedings were had and such steps taken by all concerned; unless, upon examination, the contrary should appear to be the case.
This leads us to the particular examination of the acts of 1753 and 1762, and the proceedings under one or the other of them in relation to the sales of the premises demanded; because if those sales were valid, their validity must depend on their having been pursuant .to the directions and provisions of one of those statutes. According to the argument, it seemed doubtful which was the one; or whether the act of 1762 had repealed that of 1753. We will first examine the sale and test it by the act of 1753, considering it, for'the present purpose, as not repealed by the act of 1762. In the second section it is provided thus — “ And every such “ proprietor as shall neglect to pay to the collector or treasurer “ or committee of such propriety, such sum or sums of money, “ as shall from time to time be duly granted and voted to be “ raised and levied upon his right and share in such lands, for the “ space of six months, to those who live in the province,and twelve “ months to those who live out of the province, after such grant “ and his proportion thereof shall be published in the several “public prints as aforesaid, then the committee of the proprie- “ tors of such common lands, or the major part of such committee [249]*249“ may and are hereby fully empowered from time to time, at “ public vendue, to sell and convey away so much of such delin- “ quent proprietors’ right or share in said common lands, as will “ be sufficient to pay and satisfy his tax or proportion of such “ grant, and all reasonable charges attending such sale, to any “ person that will give most for the same ; notice of such sale “being given in the said prints, forty days at least beforehand,” and may give deeds, &c. &c. The common lands referred to in the above section, it would seern, must be lands which have been actually located, and the proprietors of which have incorporated themselves according to law. This appears from other parts of the act. The first section, speaking of the mode by which an original incorporation is to be effected, and subsequent meetings called, directs that application may be made to any justice of the peace through the province, or any justice of the peace for the county wherein “ such their lands as aforesaid lie.” In this stage of the investigation, it may be useful to inquire into the legal character of an indefinite grant of a tract, or rather quantity of land, as for instance, a township, to be laid out by the grantees, and a plan thereof to be returned for acceptance. In what situation is the land, and what are the rights, which are vested in the grantees prior to such location, ? If a man grants twenty acres, parcel of his manor, without any other description of them ; yet the grant is not void ; for an acre is a thing certain, and the situation may be reduced to certainty by the election of the grantee. Keilw. 84. 2 Co. 36. So if one being seised of a great waste, grants the moiety of a yard-land lying in the waste, without ascertaining what part, or the special name of the land, or how bounded ; this may be reduced to certainty by the election of the grantee. Leon. 30. Noy 29. From these cases it would seem that by the grant, a right of election was conveyed; but that the title to any particular part of the general tract described, must depend on the election afterwards made ; and being reduced to certainty by such election, the title would then vest in the pari elected. In the present ease the resolve of June II th, 1711, granted “ a township of the contents “ of six miles and one quarter square, to be laid out adjoining to [250]*250{t some former grant, in the unappropriated land in this province, tc to the eastward of Saco river with the usual provision that a plan thereof should be returned to the legislature within twelve months. The design of this provision in grants made by the legislature undoubtedly was, that by a return of such location and plan, they, or the agents on the part of the province or commonwealth, might know how all grants had been located ; and in what places and positions; so that by such documentary evidence, the future proceedings of the legislature or the public agents might be regulated ; or such locations be confirmed by a subsequent resolve. Whether, after a township has been located under an indefinite grant, a confirming resolve has been usually passed, does not appear; but it does appear that in the case before us a plan was returned to the legislature, «3pnZ 22,1772, and the same was then accepted and confirmed. At what time the grantees of a township, or other tract of land, have a right to become a corporation, and act as such, may be a question of some nicety and doubt; whether they can legally become such until after a location has been made, a plan returned, and a resolve of confirmation passed, in those cases where, by the, terms of the original indefinite grant, such plan was required to be returned within a specified period; or whether it may not lawfully be done as soon as the selection and location have been made. It is said that at common law, this is such an act as reduces an uncertain and indefinite grant to perfect certainty, and that thereupon the estate is at once vested and perfect in the land thus located; and that, upon this principle, the grantees, may then become incorporated in the manner the statute provides, may assess taxes, and transact all business at their meetings, as legally as they could had there been a confirming resolve prior to their incorporation. Perhaps this is the better opinion, and in unison with that which proprietors under such circumstances have entertained: But on this point it is not necessary for us to deliver or form any definite opinion; and therefore, on this occasion, we do not mean to be understood as expressing any. The correctness of this conclusion will appear by an examination of some further facts in regard to the resolve of confirmation which was passed in 1773, the [251]*251year after the first confirming resolve. This resolve of February 11, 1773, presents a question totally different from either of those before mentioned, and respecting which we have suggested the foregoing queries ; and the decision of this question will shew that the argument of the demandants’ counsel, founded on the idea of the retrospective operation añd effect of the resolve of confirmation, so as to give a legal existence to the estate of the proprietors in the township, now composing the town of Paris, from the time of the first grant, cannot be sustained. We have already quoted the terms of the original grant from the resolve of June 11, 1771. By the before mentioned resolve oí February 11, 1773, or confirmation, as it is called in the report, it appears, as has been before intimated, that a plan was returned to the legislature April 22, 1772, (taken under and pursuant to the requirement of the resolve of June 11, 1771,) which was then accepted and confirmed. But it further appears that the grantees were afterwards dissatisfied with the location which had been made and confirmed, as above stated, on account of some important mistakes which had be%n committed ;' and for some other reasons; and that they accordingly applied to the legislature at their session in 1773; and for the reasons above mentioned, which they set forth in their application, prayed that the legislature would disannul the former plan, and confirm and establish said township agreeably to a plan annexed to their petition ; whereby the location, form, and position of the tract or township were essentially changed. And the legislature, thereupon, on the same 11th of February, 1773, by the resolve of the date beforenamed, did declare the said former plan to be null and void; and by the same resolve, accepted and confirmed the latter plan, and the lands thereby represented, to the said grantees, in lieu of the land contained in the plan disannulled. This brief history of the proceedings of the grantees and of the legislature, shews most clearly that until the last resolve was passed, the grantees never had any legal title to the tract of land then confirmed to them; which tract, the report states, includes within its boundaries what is now the town of Paris. Until this last resolve was passed, the former location and plan were the [252]*252basis and evidence of the grantees’ title to a particular tract of land, which, however, was a different tract from the one to which they now have title. This resolve, predicated on the consent of the grantees, and passed on their express application, operated as an exchange of one tract of land for another, more acceptable to them, and more convenient to the public. This exchange operated at once as an abandonment of all proprietary proceedings under the first resolve of confirmation. The basis being removed, the superstructure of course fell. Authorities and arguments cannot be necessary to shew, for instance, that the proprietors of a tract of land adjoining the east side of Penobscot river, having exchanged it for a tract adjoining the west side of the same river ; cannot, after the exchange of lands, go on with their proprietary records and proceedings relative to the tract on the east side, as applicable to, and in fact, a part of the records and proceedings relating to the tract on the west side; so that the former shall be legally considered as a continuation of the latter. -No principle of law would justify this.
From these facts and principles, it seems manifest that the grantees, and their heirs and assigns, could not legally become the incorporated proprietors of the tract of land, now composing the territory of the town of Paris, until the legal title was conveyed and confirmed to them by the resolve of Feb. 11th, 1773. It appears that the deeds.from the committee bear date Jiugust 5th, 1773 ; — less than six months next after the date of the resolve of exchange and confirmation. Now, unless the assessment was made prior to the confirmation, there was not sufficient time even to advertise the amount of the delinquent’s assessment for six months, which was the shortest term allowed in any case. But even forty days more ought to be allowed, on a fair construction, for publishing the notice of the intended sale. However, it is not important to inquire and decide whether the forty days are to be considered as apart of the six months, or additional to them. In either case, the sale was irregular and void. In this view of the subject, it becomes a question of no consequence in the decision of the cause, whether the act of 1753 was or was not repealed by the act of 1763.
[253]*253It now remains for us to inquire whether the sale was made in pursuance of the provisions and directions of the act of 1762.
Upon looking into them it appears that there was time for the assessment to have been made and the requisite notifications to have been published, after the 11th of February, 1773, which is the date of the final confirmation, and before the 5th day of Jlugust, 1773, which is the date of the deeds from the committee. The act requires notices which would occupy only five months ; but the fatal objection to this sale, if under the act of 1762, is founded on the following provision, namely : “And if any delin- “ quent proprietors do not by that time” (the end of three months’ notice) “ pay such rates or assessments and charges ; “ then and in that case, it shall and may be lawful for the asses- “ sors, at a public vendue, to sell and execute absolute deeds in “the law for the conveyance of such lands of the proprietors, to the person or persons who shall give most for the same ; which “ deeds shall be good and valid, to all intents andpurposes in the “ law, for conveying such estates to the grantees, their heirs and “ assigns forever.”
Now, the said Sheppard, Broten, and Biscoe, who made and executed the two deeds in question, were not assessors; they did not pretend to be or to act as such; in both deeds they describe themselves as a committee, appointed by the proprietors to make sale of the lands of delinquent proprietors. The statute appoints the assessors to sell and to execute deeds; of course, the proprietors could not repeal this provision, and give the porver to a committee. It is a special mode of divesting a proprietor of his property ; and the power must be strictly pursued, and the proceedings be strictly construed.
In addition to the foregoing objection to the regularity of the sale, if made under the act of 1762, there is another, equally fatal. For admitting that there was time between the date of the final confirmation on the 10th day of Feb. 1773, and the day of sale, for publishing notice of the amount of assessments for sixty days, and afterwards advertising the intended sale three months before tlie sale, as the above act required ; still, within that pe - riod, there was not sufficient time for calling a proprietors' [254]*254meeting, and making the assessment subsequent to the final confirmation. For the first section of the act of 1753 required that forty days’ notice should be given of a proprietors’ meeting. So that more than six months would be necessarily consumed in legally calling a meeting, assessing a tax, and giving the requisite notices of amount of assessments, and the intended sale of delinquents’ property. This same objection applies also with the same force, if the sale was made under the act of 1753. This consequence necessarily follows from the established fact, that until the final resolve of confirmation was passed, the proprietors had not acquired a title to the township, now Paris ; and from the established principle, that until such acquisition of title, they could not legally commence proceedings for the purpose of incorporating themselves, or perform any acts as a corporation.
In this view of the subject, respecting the conveyances, it becomes unnecessary to examine into the alleged distinction between the acts of 1753, and 1762, as to the objects of assessment; and whether the former related to assessments on the several rights; and the latter to assessments on the whole property ; because we find on examination, that whether the assessments were on the one or the other, the sales were not made pursuant to either of those statutes.
Thus, it is perceived, that notwithstanding the antiquity of the transactions which we have been considering and investigating, and the greatest degree of legal indulgence to the influence and effect of presumptive evidence ; the facts which are clear and undisputed, when compared with the law of th'e land then in force, completely control and destroy all the anticipated benefits of the presumption. Stabitur presumplioni, donee in contrarium probetur.
From this investigation, it will be perceived that the further prosecution of the cause will be unavailing to the demandants ; but we can only set aside the verdict, and grant-a new trial.