Jackson v. Edwards

7 Paige Ch. 386

Opinion

The Chancellor.

The objection to the title on the ground of the supposed invalidity of the will of Henry Jackson is not well taken. In the original report upon the title the master reported in favor of the due execution of the will. This was sufficient prima facie, as the will had been proved before the surrogate as a will of real and personal estate. But if the will was not duly executed then the premises in question descended to the heirs at law of the decedent; all of whom were parties to this suit except Mrs. Meriam who released her interest in the premises to others who were defendants. And the decree in this case, declaring the rights of the several parties in the premises in conformity with the deed of compromise, is conclusive as to those rights as between the purchasers and the heirs at law who were made parties to the suit. It is true Mrs. Meriam had a specific lien upon an undivided portion of the premises under the deed of compromise ; and not being made a party to the suit her lien upon the lands would not be divested by the sale, notwithstanding the provision made in the decree for the payment of her imcumbrance, if for any reason the amount due was not actually paid to her. The purchasers therefore would have had the right to insist that her release should be procured, or that the payment of her lien should be made either before or simultaneously with the payment of the money by them, upon the completion of their purchases. That objection to the title docs not, however, appear to haye been made ; and if it had been, the objection would unquestionably have been obviated at once.

The title to Mrs. Edwards’ share of the property under the conveyance and reconveyance of July, 1835, except as to the life estate of the husband in one third and the charge in his favor upon the residue of that share, was substantially the same as her interest in that share of the estate would have been under the will of her father. Whatever interest she had in the estate by the will of her father, either as absolute owner or as the devisee of a beneficial power, except so far as the same had been affected by the deed of compromise, was unquestionably vested in D. S. Jackson by the deed from herself and her husband to him of the 6th of July, 1835. For that deed was not only a valid and effectual conveyance of all the interest which either she or her husband had in the estate, but it was also a good execution of the beneficial power to convey the fee as authorized by the will. By the reconveyance of D. S. Jackson, on the same day,one third of that share was conveyed to the husband of Mrs. Edwards for life, together with a charge of $5000 in his favor upon the residue of that share, with a beneficial power to sell, if necessary, to raise the $5000. So much of that share as was not conveyed to the husband was then conveyed to the wife ; to hold the same during the joint lives of herself and husband for her seperate use, and to such uses, intents, and purposes, and appointments as she should by any deeds or writings executed in the presence of one witness, limit and appoint, from time to time, notwithstanding her coverture ; and in default of such limitation or appointment, then to herself in fee, in case she should survive her husband. But in case she should not survive her husband, and in default of such limitation or appointment by-deed or writing during her life, then to such uses and purposes as she should by will limit and appoint; and in default of such appointment by7 will, then to the use of her children or issue living at the time of her death, to be divided among them in the same manner as they would have taken the same if she had survived her husband and had died intestate ; and in default of such issue to her own right heirs.

The legal effect of this conveyance, in case the power of appointment by deed or devise should not be executed, and without reference to the provisions of the 81st section of the article of the revised statutes relative to powers, (1 R. S. 732,) was to give to Mrs. Edwards an absolute estate for life only, in that part of the property which was not granted to the husband, and a vested remainder in fee therein after his death ; subject however to be divested and defeated, in favor of her children or issue as the contingent remainder-men, by her death in the lifetime of her husband. And as the article of the revised statutes relative to powers abolished powers as they existed at the common law, and required that thereafter the creation, construction and execution of powers should be governed by the provisions of that article the validity of the power to this feme covert to dispose of the contingent remainder, limited to her children or heirs in case of her death during the life of her husband, so as to prevent them from taking under the deed of settlement in case the estates limited to her directly should be defeated by her death in the lifetime of her husband, must itself depend upon the construction of the various provisions of that article. The eightieth section authorises the creation of a general and beneficial power to a feme covert to dispose of lands, without the concurrence of her husband, where such lands are conveyed or devised to her in fee. And by the 87th section of that article a special and bene ficial power may be given to her to dispose, in like manner, of any estate less than a fee, belonging to her, in the lands to which the power relates. (1 R. S. 732, 733.) Neither •of those sections, however, authorize the giving to her of a beneficial power to dispose of an estate or interest in lands, as a feme covert, which interest or estate does not belong to her; and which upon the happening of the contingency or event provided for in the grant or devise is limited to some other person. Under some of the other provisions of this article a power in trust may be given to a feme covert to dispose of an estate or interest in lands, which does not belong to her, to or for the benefit of other persons as the objects of the trust. And the right to create such powers is unquestionably much more extensive than to create powers for the benefit of the persons to whom the power itself is granted. The power which is given to Mrs. Edwards in this case, by the deed of settlement, is a power in which no person but herself has, by the terms of its creation, any interest in its execution. It is therefore a power purely beneficial according to the legislative definition of such powers. (1 R. S. 732, § 79.) And as the 92d section of the article before referred to declares that no such beneficial powers shall be created, other than such as are before enumerated and defined in that article, the power of Mrs. Edwards to appoint the absolute fee to the purchasers under the master’s sale cannot be sustained, unless the case is provided for by the 81st section when taken in connection with the 80th and 84th. The 81st section declares that where an absolute power of disposition, not accompanied by any trust, shall be given to the owner of any particular estate for life or years, such particular estate shall be changed into a fee, absolute in respect to the rights of creditors and purchasers ; but subject to any future estates limited thereon in case the power should not be executed, or the lands should not be sold for the satisfaction of debts. And by the 85th section every power of disposition is to be deemed absolute, by means of which the grantee of the power is enabled in his lifetime to dispose of the entire fee for his own benefit. In this case, by the terms of the deed of settlement, the wife is the owner of a particular estate for life in that part of the property which was not conveyed to her husband; with power to dispose of that estate, as well as the remainders in fee limited thereon, in her life time, for her own benefit, and also to devise the inheritance to whoever she pleases at her death. This, therefore, in favor of her grantees to whom she shall convey the estate, in the execution of the power, either by deed or will, changes her life estate, and her contingent or determinable fee, into an absolute fee in presenti, in two thirds of the estate, and into a remainder in fee absolute in the other third after the death of her husband ; subject to the charge or incumbrance thereon of the $5000.

It may bo objected, perhaps, that the 80th, 81st and 85th sections have reference to a power to dispose of an absolute estate in fee in the whole premises in presenti; and that the present estate or interest which was carved out of the entire fee and conveyed to the husband by the deed of settlement, rendered these provisions of the statute inapplicable to the present case, and invalidated the beneficial power to the wife to dispose of that part of the fee which is limited upon the life estate of the husband. I cannot believe, however, that it was the intention of the legislature to prevent the creation of a power which would enable a feme covert to convey a future as well as a present fee in lands, for her own benefit and support, during coverture. And the language of these sections applies as well to a future as to a present estate in fee in the lands which are the subject of the power, provided the power is to be executed in the lifetime of the grantee of the power. I agree xvith the vice chancellor and the master therefore that the sale of the interests of Edwards and his wife under the decree, and the execution of her deed of appointment in favor of the purchasers, will be sufficient to vest in such purchasers the whole estate or interest in that share of the property xvhich was conveyed to D. S. Jackson, and re-conveyed by him, by the deeds of settlement in July, 1835.

I am of the opinion, however, that the master’s deed under the decree, to which decree the children then in existence, who were presumptively entitled ta the contingent re mainder in fee in the event contemplated by the deed of settlement, were not parties, would not of itself have been sufficient to divest their contingent interest. By a reference tQ t]ie eighty-first section of the article relative to powers, it will be seen that though the particular estate of the grantee of the power is changed into a fee in favor of purchasers and creditors, an actual execution of the power, or a sale of the lands for the satisfaction of the debts of the grantee of the power, is required to divest the future estates which are limited upon the particular estate of such grantee of the power. And a sale under the decree in partition, was not a sale of the land for the satisfaction of the debts of Mrs. Edwards ; nor was it a valid execution of the power in favor of a purchaser at the master’s sale, although she had by her solicitor assented to the decree under which that deed was made. Every instrument, except a will, in the execution of a power, is a conveyance which must be recorded to protect the estate conveyed against subsequent bona fide purchasers or grantees; and where such grant or conveyance is executed by a feme covert, she must acknowledge it upon a private examination before the judge or commissioner, as in the case of other conveyances executed by femes covert. (1 R. S. 736, § 114, 117.) It is impossible, therefore, that the mere assent of Mrs. Edwards to this decree of sale should be considered a valid execution of the power to convey the fee for her own benefit to these purchasers.

It remains for me to consider the objection to the title arising from the fact that the wife of the complainant, Henry Jackson, and the infant wife of D. S. Jackson, one of the defendants, had inchoate rights of dower in the undivided shares of the premises belonging to their husbands respectively ; and which the vice chancellor supposes could not be divested by a sale under the decree, so as to protect the purchasers against the dower of these femes covert should they survive their husbands. The defendant, I). S. Jackson, was not married when the original suit was commenced ; and it appears by the papers before me on these appeals that notice of the commencement of the suit was duly filed, in August, 1835, as required by the statute, and by the rule of this court. It is very doubtful, therefore, whether the wife of this defendant, who was married three months afterwards, could acquire any interest in the property which was the subject of the litigation, by her own voluntary act pendente lite, which would not have been divested by a sale under the decree. But it appears the complainants amended their bill, subsequent to the marriage of the defendant D. S. Jackson, by stating the marriage and making his wife a formal party as a defendant in the bill. And this, as the counsel for the respondents insist, was a waiver of the former proceedings, and a substantial commencement of the suit de novo subsequent to the marriage. It probably was not necessary for the complainants to take any notice whatever of the marriage of a male defendant pendente lite. But even if it was proper that his wife should be named in the subsequent proceedings, neither a supplemental bill nor an amendment of the original bill was necessary to bring her before the court. The proper course would have been, as in the case of the marriage of a female defendant, to obtain an order that the further proceedings in the suit should be in the names of the husband and his wife as parties. (See Story’s Eq. Pl. 289, § 354; Gilbert’s Ch. Pr. 174, 178.) Indeed, as a general rule, a bill cannot be amended for the purpose of stating any new matters which have occurred subsequent to the commencement of the suit; or of bringing a party before the court whose right or interest in the suit accrued subsequent to the time of filing the original bill. (1 Daniel's Ch. Pr. 510. 1 Newl. Pr. 279.) And I presume the order of the vice chancellor of the 10th of December, 1835, directing that the wife of D. S. Jackson be made a party defendant with her husband, was only intended to conform to the usual practice, in making the husband of a female defendant who has married pendente lite a party with her in all future proceedings in the suit; and that the solicitor for the complainants mistook the intent and meaning of that order, if he supposed it required or even authorized an amendment of the bill by stating the marriage which had taken place since the commencement of the suit, and making her a party to the bill itself, instead of a mere party to the further proceedings in the suit, by a formal prayer of process of subpoena against her in such bill. Without stopping, however, to inquire whether the counsel for the purchasers are right in their conclusions as to the effect of this irregular amendment of the bill, upon the rights of a party who would otherwise have stood in the situation of a mere purchaser from a defendant pendente lite, I shall proceed to dispose of these remaining objections to the title to be acquired by the master’s deed, under the decree of sale, as if the suit had been actually commenced at the time that amendment to the bill was made.

The power of this court to transfer the legal titles of infants and others who are made parties to a suit in partition, by a simple conveyance by the master upon a sale by him under the decree, does not depend upon the general powers of this court to transfer the legal title to real estate by a simple decree for the sale thereof by a master. But it depends upon the true construction of our several statutory provisions relative to the partition of lands. Independent of the statutory provisions in aid of the powers of this court, the ordinary mode in which courts of equity transferred the legal title, upon a sale under a decree, was by operating upon the parties themselves, and compelling them to join in the conveyance to the purchaser, so as to transfer their legal titles in connection with the equitable interests of any of the other parties; which equitable interests would be bound by the decree, by estoppel, and would pass by the master’s deed, without any formal conveyance by the parties having an equitable interest only. Thus, where the legal estate was in the hands of trustees, the decree for a sale thereof, to satisfy the objects of the trust or any lien or incumbrance upon the property, usually required the trustees to join with the master in his conveyance on the sale; and that was deemed sufficient to protect the rights of the purchaser, both in law and equity, against the claims of cestuis que trust who were parties to the suit, or who were bound by the decree as privies. But independent of any statutory provisions, this court was not wanting in power to malee a decree which would protect the purchaser at the master’s sale, when all persons having a legal or equitable title to the land that was capable of being released or transferred to the purchaser were made parties, and where they were within the jurisdiction of the court, so that its process could be made effectual against them; although the parties having the legal title or interest in the land were infants or femes covert. In the case of a feme covert, the court compelled her to join with her husband, in a transfer of her legal interest to the purchaser, by a fine or other formal act which would have the legal effect to extinguish or transfer such interest. And in the case of an infant, although the court had not the power to decree a conveyance from him which would operate as an immediate transfer of his legal estate, the court was authorized to do that which was substantially the same thing, so far as the interest of the purchaser was concerned: that is, to decree a conveyance by the infant upon his attaining twenty-one, unless within six months after he should attain that age he should show cause to the contrary ; and that in the meantime the purchaser hold and enjoy the estate. (Blatch v. Wilder, 1 West's Rep. 324. 1 Atk 421, S. C.) And the purchaser who buys the estate under such a decree, must accept the order of the court for a future conveyance by the infant as a sufficient security for his title. (Powell v. Powell, Mad. & Geld. Rep. 53.) The court will also protect the purchaser, by injunction, against the infant or those claiming under him, in the enjoyment of the estate until the legal title shall be actually transferred according to the directions of the decree. The court in such a case also so far protects the purchaser under the decree, that it will not permit the infant, when he becomes of age, to impeach the title for mere error in the decree. (Bennet v. Hammil, 2 Sch. & Lef. 566. 1 Daniel’s Ch. Pr. 228.) If it were necessary, therefore, to resort to. the common law powers of this court to make a sale under a decree in partition valid and effectual, against the inchoate rights of dower of the wives of some of the tenants in corn mon, it will be seen that the means are generally within the reach of the court if it thinks proper to employ them.

Upon a careful examination, however, of the several provisions of the revised statutes relative to the partition of land, in connection with the former legislation on the same subject, I have arrived at the conclusion that a sale by the commissioners in partition under the judgment of a court of law, or by a master in chancery under a decree of this court, will of itself be sufficient, without any act of hers, to bar or extinguish the contingent right or interest of the wife of one of the tenants in common in the land, where she is made a party to the suit w'ith her husband, whether she is an infant or an adult. The six last sections of the revised act of 1813, for the partition , of lands, (I R. L. 513,) contained newr provisions which were intended to remedy defects in the previous law on that subject, and to reach the various estates and interests of all persons in the several undivided shares of the premises held in common, in which premises some of the parties to the suit had a present estate as a tenant in common for life, either as tenant by the curtesy or in dower or otherwise ; so as as to make the partition, or a sale under the judgment or decree, valid and binding as to every estate or interest in an undivided share of the premises, whether present or future, vested or contingent. This act however was found defective in two particulars: 1. That it did not authorize a widow who had a present right of dower in the whole premises to be made a party to the proceedings, although that dower still remained unassigned; and, 2. That no provision was made for making creditors, who had liens upon some of the shares of the tenants in common, parties to the proceedings, nor for the payment of their debts out of the proceeds of the shares on which such debts were a lien. The revisers therefore provided for these two defects, in the new provisions which they introduced into the revised statutes on this subject; retaining substantially all tile previous provisions of the act of 1813, and the acts of April, 1814, amending the same, in relation to the barring of other future and contingent interests by a sale of the premises under the judgment or decree. That it was the intention of the revisers to enable the courts to give to a purchaser under the judgment or decree, when a sale of the premises was found to be necessary, a perfect title as against every future or contingent interest in any undivided share of the property, is evident from the note which they appended to the new provisions introduced by them in relation to incumbrances on such shares. Indeed, without such' a power, it would be very difficult to make the partition equal in the case of a sale; as a contingent right of dower or other defect in the title as to one share in the property must, upon a sale, necessarily diminish the amount bid for all of the shares collectively. The same difficulty, therefore, would exist in determining the value of a wife’s inchoate right of dower in the undivided share of her husband, for the purpose of dividing the proceeds of the sale among the different tenants in common according to equity, as is apprehended by the counsel to exist in making a suitable provision for this contingent right of the wife, out of the whole of the proceeds of her husband’s share of the sale, if she chose to insist upon her right to such a provision. And in addition to that, the fact that the title in the hands of the purchaser would be incumbered with a contingent right of dower of a feme covert, in an undivided share of the premises, which might subject the owner to future expense and litigation, would diminish the value of the property in the hands of the purchaser to more than double the actual value of such a contingent right. I cannot believe that the legislature intended to leave this contingent interest, or inchoate right of dower of the wife of a tenant in common, an incumbrance upon the title in the hands of a purchaser, any more than that it was intended that a similar contingent interest of the husband in the wife’s property should remain an incumbrance thereon. Although the husband has a present interest in his wife’s real estate from the time of the marriage, for the joint lives of himself and wife, he is not even a tenant by the curtesy initiate, so as to give him an estate for his own life in the premises, until the birth of issue. And I believe it has never been doubted that a sale in a partition suit,-to which he was a party, either under the act of 1813, or under the provisions of the revised statutes, would have the effect not only to divest his present estate in the property during the joint lives of both, but also to bar his contingent interest in the property, for the remainder of his life after the death of his wife, in case he should afterwards have issue and should survive her. Yet I have not been able to find any provision in the revised statutes which can reach such a case which is not equally applicable to the wife’s inchoate right of dower in the husband’s estate. The provisions of the statue referred to by the vice chancellor relative to estates for life in curtesy or dower, (2 R. S. 325, § 50 to 55,) do not in terms cover either of the cases before referred to. And if in either case there should be such a disagreement between the husband and the wife as to render it necessary for the court, in providing for the legal rights of each, to settle their proportions of the proceeds of the sale, and if there was no other way to protect their rights than to ascertain the present value of the contingent interest of the husband or wife in such proceeds, it would be much easier to ascertain the present value of the wife’s contingent right of dower than to ascertain 'the value of the husband’s chance of becoming a tenant by the curtesy, not only by surviving his wife but also by becoming the father of a child by her. Indeed the annuity tables have furnished the court with the means of ascertaining the probable value of the wife’s contingent right of dower during the life of the husband. These tables show the value of annuities which depend not only upon the continuance of single lives of different ages, but upon the continuance of two or more joint lives. The proper rale for computing the present value of the wile’s contingent right of dower, during the life of the husband, is to ascertain the present value of an annuity for her life equal to the interest in the third of the proceeds of the estate to which her contingent right of dower attaches, and then to deduct from the present value of the annuity for her life, the value of a similar annuity depending upon the joint lives of herself and her husband; and the difference between those two sums will be the present value of her .contingent right of dower. (McKean’s Pr. L. Tables, 23, § 4. Hendry’s Ann. Tables, 87, Prob. 4.) Should it be necessary, in the case of an infant or an adult wife, for the court to protect her contingent right of dower upon a sale under a decree in partition, where the value of the husband’s undivided share of the estate was such as to render it proper, the present value of that contingent right may be ascertained in that manner. And the amount may be invested in the Trust Company, or in a savings hank, in the name of the register, to accumulate for her benefit during the joint lives of herself and her husband ; so that the whole accumulated fund may then be paid over to her, or her personal representative, at that time, in full of her share in the proceeds of the sale. Her rights may also be effectually protected by directing the whole proceeds of the husband’s share to be paid over to him, upon his giving security to the register or clerk that the interest or income of one third of such proceeds shall be paid to his wife after his death, during the term of her natural life, if she survives him.

Although the revised statutes have given specific directions as to the mode of ascertaining and securing the shares of the proceeds belonging to the tenants in dower and by the curtesy, and other tenants for life having present estates in possession in the premises, there is still a large class of future estates, both vested and contingent, in lands which may be sold under judgments and decrees in partition, that are not embraced in those specific directions. In all such cases it will be the duty of the court to ascertain and settle the value of such future estates and interests upon just and equitable principles, and to make such order as may be necessary for the protection of the shares of the fund which may belong to the persons who then are or may thereafter be the owners of such future estates or interests; in analogy to the express provisions of the statute relative to the shares of parties who have present estates for life in possession. I cannot, therefore, concur in the opinion of the vice chancellor, that the neglect of the legislature to make a specific provision for the ascertainment of the value of the wile’s contingent right of dower, and to secure the same for her benefit, is any evidence that it was intended to leave that, or any other future or contingent interest of a party to the suit, as an incumbrance upon the title of a purchaser under the judgment or decree.

To show it must have been the intention of the legislature to bar all such future and contingent rights by the sale, so as to give a perfect title to the purchaser, I will refer to some of the provisions of the revised statutes on the subject. It may be proper in the first place, however, in answer to a suggestion of the counsel for the appellants, to remark that whatever estates or interests in the premises may be divested by a sale in partition under the judgment of a court of law will also be divested by the conveyance of the master under a decree of this court; the jurisdiction and powers of courts of law and of this court being concurrent, so far at least as concerns the legal title to the lands of which partition is sought by the suit in cither court.

The fifth section of the title of the revised statutes relative to the partition of lands, (2 R. S. 318,) requires the plaintiff, in his petition, to set forth the rights and titles of all persons interested in the premises, so far as is known to him, including the interest of any tenant for years, for life, by the curtesy, or in dower, and the persons entitled to the reversion, remainder or inheritance after the termination of any particular estate therein, and every person who by any contingency contained in any devise, grant, or otherw'ise, may become entitled to any beneficial interest in the premises. This language is certainly broad enough to include the contingent right of dower of the wife of one of the tenants in common, as well as other future or contingent interests. And the next section authorizes every person having such an interest as is mentioned in the fifth section, whether the same is in possession or otherwise, and every person entitled to dower in such premises, if the same has not been admeasured, to be made a party to the suit. The special provision in relation to dower was inserted in this section to reach the case of a doweress who was entitled to an estate as tenant in dower in the whole premises; as the supreme court had decided that the provisions of the revised lawr of 1813 did not reach the case of a doweress whose husband was not a tenant in common of an undivided share of the estafe. (See Coles v. Coles, 15 John. Rep. 319.) The language of the seventh, tenth, eleventh, twelfth and thirteenth sections of this title as originally passed, are equally comprehensive with the fifth ; and show that it was the intention of the revisers and of the legislature that the owner of every future and contingent interest, whether known or unknown, as well as the owners of present interests, should be made parties to the suit; and that their several rights and inteicsts should be ascertained and settled by the court before a judgment or decree for a partition or a sale of the premises should be made. By the 61st section, the conveyance which is directed to be executed by the commissioners, under a judgment for sale of the premises, is declared to be a bar both in law and equity against all persons interested in the premises in any way, who shall have been named as parties in the proceedings; and against all such persons or parties as were unknown, if notice of the application for partition shall have been given by publication as directed by the statute; and against all other persons claiming from such parties or either of them. And by the 84th section, the same force and effect is given to a master’s deed, under a sale by virtue of a decree of this court. I am, therefore, compelled to declare that the opinion of the vice chancellor, as expressed in this cause, and in the case of Matthews v. Matthews, (1 Edw. Ch. Rep. 565,) as to the effect of a sale in partition upon the inchoate right of dower of the wife of a tenant in common who has been made a party to the suit in conjunction with her husband, is erroneous; and that a purchaser under the judgment or decree will be protected against any future claim on her part, both in equity and at law.

The orders appealed from cannot, therefore, be sustained upon the ground on which the vice chancellor placed his decision. If the purchasers had placed their objections to the title upon this ground alone, originally', or if the complainants immediately after the sale had offered to obviate the objection that the contingent remaindermen under the deed of settlement had not been made parties to the suit, by procuring a deed of appointment from Mrs. Edwards with out delay, I should think it my duty to reverse these orders of the vice chancellor, and to compel the purchasers to take the title to the lots bid off by them at the master’s sale. But I should not have charged them with costs for refusing to take a title which had been declared to be defective by a reported decision of the court under whose decree the sales were made, which decision had not then been overruled by a higher tribunal.

As this court will not give a purchaser at a master’s sale the benefit of his purchase, where he has neglected to comply with the terms of sale within a reasonable time, if a resale of the property is deemed more beneficial to the parties interested in the proceeds of the sale; so neither will it compel him to take the title, where by the fault of the parties thus interested, and without any captious objections to the title on his part, the completion of the sale has been delayed so long that he cannot have the benefit of his purchase, substantially, as if the sale had been completed and the title given at the time contemplated by the terms of sale. In this case there wTas a valid objection to the title which was not removed until a long time after the sale ; and no attempt was made to remove it until the property had depreciated in value, so that the purchasers must now be great losers if they are compelled to take the property at the prices for W'hich it was sold. The effect of compelling purchasers to take a title upon a master’s sale, under such circumstances, must necessarily be to deter bidders from attending and purchasing, property under the decrees of this court. The several orders appealed from arc, therefore, right; not for the reason that it is now impossible to make a good title, but because the purchasers ought not to be required to take even a good title after such a delay as had occurred at the time those orders were made, when the purchasers could not have the substantial benefit of their respective purchases.

The orders appealed from are, therefore, affirmed with costs. But as these appeals have been for the benefit of all the other parties interested in the proceeds of the sale, as well as the complainants, such costs, together with the ap pellants’ own costs in this court, are to be paid out of the proceeds of the property on a re-sale thereof. And the proceedings are to be remitted to the vice chancellor, with directions to him to make the necessary orders to discharge these purchasers and for a re-sale of the property; and also, to" make such a disposition of a portion of D. S. Jackson’s share of the proceeds of the several sales, under the decree, as may be necessary to secure to his infant wife a fair equivalent for the value of her contingent right of dower, in case she survives her husband, so far as she has not been already secured by obtaining a similar interest in the lands conveyed to him in severalty under the master’s sale.