The opinion of the Court was delivered by
HutchinsoN, J.
This cause was removed here from the county court after a judgment for the plaintiff, and it comes up to be decided upon the question of title exhibited in the case agreed to by the parties: it being agreed that the defendants are in possession. This cause was ably argued before this Court at their last term in this county, and has again been ably argued at the present term. The majority of the Court are now agreed in opinion ; and, in justice to ourselves, I ought to say, we were equally agreed at the last term.
The plaintiff claims title to the premises by virtue of a deed of the same from Eleazer Flagg, one of the administrators of the estate oí Jonathan Parker, deceased. And the defendant Strong, claims title to the same premises by virtue of sundry deeds from the heirs of said Parker, comprising the title of all of said heirs; and also a deed executed in the year 1824 from the said Flagg and Rujus Parker, administrators of said estate : the said Rudd, the other defendant, being in as tenant to said Strong. So that both parties, by claiming under Jonathan Parker, deceased, have acknowledged his title to be good. Moreover, the case expressly states that the premises formed a part of the real estate of said deceased. The question then is, which of the contending parties derives to himself that title ?
It is manifest, from the case agreed on, and the references therein made to the probate proceedings, that it was necessary to sell the real estate of the deceased to a much greater amount than the sale to the plaintiff-, in order to pay the debts due from the es-tate. For, aside from the debt of Prior and Ludlow, sued in the circuit court, the list of claims returned amounted to $15,170; and the inventory of the personal estate amounted only to $6,157,-30 ; and of this the judge assigned to the widow $700. The [254] judge of probate, seeing this deficiency of the personal estate to pay the debts, on the 4th of May, 1809, issued an order fo the administrators to sell, at public auction or private sale, so much of the real estate as would raise the sum of $9,574. It does not' appear that any sale was made by the administrators, prior to the date of the deed from Flagg to the plaintiff: we may, therefore, consider it certain, that the debts due the creditors formed an in-cumbrance on the real estate of the deceased, at the date of that deed ; and that it was then the duty of the administrators to hasten their proceedings, and make sale of the same by proper conveyances, and pay the outstanding debts. Upon this state of things, the heirs of said Parker, under whom the defendants claim, had never any title to the estate, exceptjto what should remain after paying the debts. A vested remainder, is the strongest expression in their favor at all descriptive of their title.
Again, there appears in the case and upon the argument, no controversy but that the plaintiff did purchase of Flagg, and take a deed of some sort, and pay or secure the amount contracted to be paid ; so that the estate, and, through it, the heirs have been benefited by the sale to that amount. Nor is it denied that the' notices of the proceedings, and deed of the plaintiff, were so of record as to bar the defendants, who claim by later conveyances, from any greater or better right than the heirs themselves might have.
Here the controversy is little else than this, whether the plaintiff can recover at law, or must resort to a court of equity for relief. Upon this point we differ in opinion ; the chief justice considering the plaintiff’s only remedy to be before this Court upon the chancery side. I think I may say we discover nothing but that if the same facts appeared in a suit in chancery that are placed before the court in this action at law, we might be agreed in granting relief to the plaintiff, unless we should find ourselves perplexed with the objection that his remedy was complete at law. It is generally true that a man need not resort to chancery when his proof is ample at law, and the remedy he seeks such as the courts of law can afford : as pecuniary damages in a personal action, or the estate sued for in areal action. If the plaintiff should fail in this action, through the irregularity of the proceedings of the administrator, Flagg, or the deficiency of his deed, he might be compelled to resort to the equity side of the court for a decree of a conveyance from the heirs, and those claiming under them with notice, or a restoration of the'consideralion money paid, with interest upon the same.
Three objections are urged to the validity of the plaintiff’s deed from Flagg,
[255]*2551. Its deficiency upon the face of it. .2. That the statute re-fered to in said deed is unconstitutional and void, and affords no .support to the deed. 3. If the statute were valid, the .proceedings do not conform to it.; which also renders the deed void.
.With regard to the deficiency of the deed upon the face of it, the objections seem to b.e that it does not appear by the deed that the land .conveyed belonged to the estate of Jonathan Parker, .deceased ; .that it .does not .show by what authority Flagg conveyed ; that he conveyed in his own right; and that the deed is contradictory, some .parts purporting to be th,e act of the administrator, and some the act of the .individual. Recurrjng to the deed, we find it .commences in due ;form for .an administrator’s deed. He describes.himself a.s administrator pf the,estate.of said Jonathan Parker, deceased; and, towards tfie close, he .covenants .that he, in.his said capacity, had good right .so to sell. The land is described by .the numbers of the lots. After .all this, there was no need of any further description showing it to be the land of the deceased, indeed, the covenant above.alluded to amounts to an .affirmation, .and even to a covenant, that the lands described belonged to.the deceased. We need not decide whether any of the covenants are so expressed as to bind Flagg in his private capacity : for if it be so, that will make no .difference about its .conveying the right of Jonathan Parker, in the land described. .Hence there is no.contradiction from that .source. The deed re- . cites that Flagg, as administrator, See. and by virtue of a certain statute Sic. conveys. Now .the defendants urge that here is not sufficient reference in the deed to the authority by which it is given : and several authorities are produced to this point by both .parties. The case of Clapp, Administrator, vs. Beardsley, cited from 1 Aiken’s Rep. 168, decides nothing about what must appear in the .deed, but decides that the necessity of a sale of real estate to pay debts, must appear from the .probate records, or in .some way, in order to render the conveyance valid. The case in 7 Mass..Rep. Fowler vs. Shearer, merely decides that .the deed of a feme covert, reciting that she executed it as well, for herself as attorney to her husband, and, in .every other respect, appeared to be her own deed, the covenants hers, and signed .with her name only, .was void, and formed no consideration for a note given for the purchase money. In 8 Com. Big„ Day’s edition, page 862, it .is expressly laid down, that it is not necessary, to refer to the power in the deed, if the party has, and can show, power to warrant the deed. The references to support this are, 2 Sch. & Lef. 464 — 1 Ball & Beatty, 92, and 44. — The plaintiff’s counsel also cite 1 Swift’s Digest, 230, to the same point ; [256] also, 16 th of Mass. Rep. 186, Robert vs. Whiting, where it is decided that when a conveyance, to be valid, needs the con-sentof A, that consent may be proved by parol. The deed in ciuest¡on being drawn as above observed, and the case showing that the 'land described in the deed was in fact a part of the estate of the deceased, we have come to a decision which we deem the result of sound reason and of the above authorities, that the deed is sufficient upon the face of it, if Flagg had power to convey said premises.
The validity of the statute of 1812, under which Flagg claimed to act, is next to be examined. We are called upon to decide this statute unconstitutional and void. While we are called to administer the laws of the state, we are bound to consider the constitution as a law paramount to any statute of our legislature.
The constitution is a law to the legislature as well as to us ; and, should they inádvertently act in violation of this law, their doings must be void. The constitution is an expression of the will of the people by which their public servants must be bound. It is always to be presumed that the legislators will carefully obey this law. Hence we must not heedlessly or wantonly decide their acts void, nor do it in any case till they are clearly so ; especially as their power has no other limits than those prescribed in the constitution, and those resulting from the nature and principles of right and wrong, which must stand as boundaries to the sphere of every legislative operation. It has been said by some that the legislators are the sole judges whether their acts are constitutional ; and that their acts are an expression of their decision upon the question. If this were so, the remedy of the people against oppressive acts, when there might be such, would be very slow and uncertain ; depending up'on the increased wisdom and patriotism of the legislative body, or upon changes of its members by new elections. The counsel have presented no difficulty with regard to the power and duty of the court, if they should consider the act in question unconstitutional. All consider it our duty, in such a case, to declare it void.
The objection to this act is, that-it interferes with the vested rights of the heirs, and is a judicial act, belonging in its nature to the probate courts. The counsel endeavor to assimilate this to several acts decided void by this court. ’ They cite Dupy, qui tam, vs. Wickwire, 1 Chip. 237. The amount of the decision in that case is, that an act, which was in the nature of a mandamus to the court, requiring the admission in evidence of a deposition already in existence, and rejected by reason that the caption did not describe correctly the parties to the action, was void and [257] ttft binding upon the court. This act is liable to the two obj'ec-lion's of being a judicial act, and varying the rights secured to parties in the action by the general laws.
They next cite Starr vs. Robinson — 1 Chip. 257. That was an act of suspension used in defence of a suit upon a prison bond, the condition of which had been broken before the act passed. This was decided void. It was clearly at war with the plainest rights of the plaintiff in his suit upon the bond.
Bates vs. Kimball, administrator of Barber*, in 2 Chip, is also cited. There the court decided void an act which allowed an appeal from the decree of the probate court in a particular case, after the expiration of the time allowed for that purpose by the general laws. The court considered this void as being a judicial act: its effect being to set aside the probate decree. The case of Staniford vs. Barry, in 1 Aikens, 314, is just like the last case, and decided upon the authority of it.
Ward vs. Barnard, reported in 1 Aikens, 121, decides an act Void which forthwith lets a debtor out of prison by name, and suspends all writs, judgments and executions against him for five years. This was a suit upon a prison bond, given, but not broken, before the act passed. The creditor by the general laws had a right to detain his debtor in prison till he paid his execution. This act declares that this particular debtor shall not be so kept an prison.
The plaintiff contends that the act in question is not similar to any of those thus decided down j and cites a class of cases which he contends are in point to support this statute. In 12 Wheaton, 128, Williams vs. Norris, Chief Justice Marshal’s observations go to show, that it was no objection to a law, in other respects constitutional, that it was particular and applied to the evidence in a particular future event. The case of Mason vs. Haile, in the same book (page 370) sanctions a special statute of Rhode Isl- and, passed at the request, and for the sole benefit, of Haile, and which, in a circuí tons manner, discharged him from prison, and formed a defence to a suit upon his prison bond. This statute pointed to future operations to test the poverty of the prisoner and effect his discharge. It may well be inferred, from the reasoning of the court, that they would have decided otherwise if the statute had been an absolute discharge of the prisoner, taking effect forthwith.
In the case of Rice et al. vs. Parkman, 16 Mass. Rep. 326, the court decided that an act of the legislature, authorizing a guardian to sell the lands of his ward, and a sale pursuant thereto, form a valid transfer of the same land ; notwithstanding the gene[258] ral statutes had delegated the same power to the courts of justice: Chief Justice Parker saying, the general power might be wholly revoked by the legislature : also adding that this power, given to the courts of justice, was not properly a judicial power, and might as well have been given to the selectmen of each town, or to the registers of the respective counties. In 2 Johns. Cha. Rep. 172, Mason et al. vs. Suidam et al. the sheriff made sale of land on execution, and died without executing a deed to the purchaser. A special statute authorized the executors of the sheriff’s will to give the deed, which was given accordingly. The court adjudged the act constitutional and the deed valid.
In 5th of Day’s Rep. 88, Coe vs. Talcott, one of the parties claimed under an administrator’s deed, given under a special act authorizing the sale, and no objection was taken to its validity, though the suit was sharply litigated.
The reasoning adopted by the court in the case cited from 8th of Johns. 432, Catlin vs. Jackson, sanctions special statutes that are made to aid the exercise and enjoyment of rights, without infringing the rights of other persons.
Cruise, on real property, (vol. 3,pages 514,576, 521-2,,! collects several cases of private acts of parliament, authorizing what could, not be done without such acts, among which are the following. A, holding real estate in strict settlement, wanted to exchange with B, and obtained an act vesting his estate in B. An estate, holden in strict settlement, was charged with the payment of a sum of money ; a private act, vested the whole in trustees in trust to sell, and pay off the debts and vest the overplus, if any, in lands to the old uses.
So a private act authorized a tenant for life to make long leases beneficial to the estate, which he could not do before. Another authorized a tenant to expend his own money on improvements beneficial to the inheritance, and charge the same on the estate.
Another authorized a bishop to exchange away some of the lands of his bishoprick. Another vested the estate of a lunatic in trustees, to sell and pay debts and clear off incumbrances, and apply the money under the direction of chancery.
Another confirmed a fair and just partition among co-parcenors, some of whom- were lunatics and some infants. This bound all concerned, including remaindermen.
Another authorized a male infant, desirous of marrying, to make a settlement of his estate, and made it valid as if he were of age. All persons, in any way interested, usually have notice of the petition for such act. But, where A, tenant for life, with remainder to his first and other sons, in tail mail, with remainder ov~ [259] er, petitioned parliament, and, without notice to those in remainder, obtained an act authorizing the sale of the estate, it was decided that this barred those in remainder as fully as a common recovery would have done.
On inspection of the year books, for thirty years past, we find that the legislature of this state have passed acts almost every year, and several in some years,authorizing administrators to sell the lands of the intestates, under circumstances named in each case ; and likewise empowering guardians to sell the real estate of their wards. And this legislation has come down to the present period, notwithstanding the cautions furnished the legislature by numerous decisions upon constitutional law. If such statutes may not pass, to aid the doings of what ought to be done, without waiting the slow operation of general laws, and that, in cases where no person is, or can be, injured, what means the power to redress grievances, given to our legislature in the 9th section of our constitution ?
So long have such statutes been frequent, so numerous have they become, and to such an amount is property holden under them, they ought not, for this reason, to be rejected as nugatory, unless their repugnancy to the constitution is clear and certain.
What, then, is the character and tend ency of the act under consideration ? It recites greivances to be redressed. The property is chiefly wild land, and large debts are due from the estate, and forcing an immediate sale will nearly sacrifice the whole.— There are two administrators also, and one is gone into the army of the United States, and' cannot at present be come at to execute deeds as they may be wanted when sales are agreed upon. To redress these grievances that act provides that the creditors, who will receive these lands in payment of their debts, may have them at a discount not exceeding 25 per cent, from an appraisal to be made by men to be agreed upon by the parties for that purpose; and that Ulagg alone might execute the deeds without calling the other administrator home from the army for that purpose. This isthe simple purport of the act so far as relates to this action. It is difficult to conceive what tendency this could possibly have to divest or injure the rights of the heirs. Their rights, as before noticed, were, that the personal estate should first be appropriat-' ed to pay the debts, then so much of the real estate as would pay the residue, and have what remained of the real estate divided among them. That part of the real estate, which should go to pay the debts, never belonged to the heirs. They had no interest in it. It was for their interest to have this sold off, and thus divided from what would afterwards belong to them. Ttwas for their interest, also, that the sales should be advantageous, that ■ [260] a greater portion blight be left for them to inherit. The object and tendency of this act was, therefore, not to dispose of any thing that belonged to the heirs, but to divide off to the creditors what belonged to them, and leave what belonged to the heirs. Thus far then this act compares not at all with any one of those considered void in the cases cited. It compares more with those that authorize guardians to sell the real estate of their wards. It does not attempt to enact that the property of one person shall become the property of another. It looks forward in its operations altogether. It uses no compulsory language. The administrator is not obliged to make use of the act in selling. He cannot sell to any but in payment of the debts of the creditors. He can sell nothing but what belongs to the creditors; and they are not obliged to receive their debts in this way. But Flagg may so convey to such as will thus receive their pay in land.
The defendant’s counsel urge, however, that such a conveyance as the act authorizes may dispose of more land than belongs to the creditors, and leave too little for the heirs. If the act compelled the administrator thus to convey, without any alternative, there might be some weight in this objection. But, while the act only gives him power thus to convey, if he knows of any more advantageous sale within his power, and does not improve it, his neglect would be as direct a breach of his administration bond as if this act had never existed. He was under bonds to administer faithfuly. He found embarrassments under the existing laws. He petitioned for and obtained this act with a view to aid his administration. His bond and his oath bind him still to make the best sale in his power, whether with or without the aid of this statute, and render a true account of the sale. The act has, therefore, no tendency to injure the heirs in any way whatever. The probability is very great, that a sale to the creditors under the act would be more beneficial to the heirs than any that could be made for ready cash with which the debts could be paid. No doubt can be entertained that this probability influenced Flagg to petition for the act, and the legislature to grant it.
If we are correct in the foregoing principles, and have presented the true tendency of the act, the objection, that the act authorizes one to do that in which the existing laws required the concurrence of both administrators, is already answered. The general laws required both administrators to join in a deed. But this was inconvenient, as one was absent. The act authorizes one to do that which ought to be done, more speedily than can be done by both. So an act authorizes a guardian to sell the lands of his ward, which he could not sell without such act, or to sell them sooner [261] than he could do without the act. This and the other are proper acts for the legislature to pass when the circumstances require it.
But it is said that the judge of probate had power to appoint anew when one administrator is gone and cannot administer. We answer, perhaps this is not a case of that kind. Perhaps the absence of Rufus Parker xvas not of that permanent character, that would authorize the judge to interfere. He might refuse to resign because he expected to return and administer. This act might be necessary for that which the judge of probate could not do in such temporary absence. Besides, the making appointments is not properly a judicial act. It is a probate act, but not judicial within the meaning of the constitution, which requires the legislative and judiciary departments to be kept separate. That clearly has reference to courts of justice organized for the trial of causes both civil and criminal. The empowering one alone to give the deed in payment of debts, cannot be so great a stretch of power as to authorise a guardian to sell the real estate of his ward, or the executor of the deceased sheriff to give a deed to perfect a sale made by the sheriff before his decease.
If this part of the act be valid, it is by no means certain that the proceedings need the support of any other part. The probate records show that a sale of real estate was necessary to raise over $9,000 to pay the debts, and that an order issued to the two administrators to sell to that amount. They might sell at private or public sale. Both might have conveyed to the plaintiff just as the one has done, and the conveyance would have been valid. Now let the statute make the deed of one good, without the other, and the plaintiffs title is established. True, it does not appear that the administrators made a return of their order, with an account of this sale to the judge of probate ; but that would necessarily be done after the execution of the deed, and was the business of the'administrators in rendering their account to the court of probate ; and their neglect to make return roust not defeat the plaintiff’s title.
If, however, all the provisions of this statute are necessary to give the plaintiff a title, how have these been pursued ? The great objection under this head is, that the deed was given before the appraisal. Stress is laid in argument upon the expression in the statute, “which being done” that is, the appraisal being made.
There are two answers to this objection, First, There being a bond taken at the date of the deed securing a future appraisal, and an adjustment according to it, when made, it may be considered as done at the date of the deed, so far as respects the validity of the deed : though it must be done, in fact, before a settlement. Especially may this be so considered, as it appears from the case [262] the plaintiff's provisional allowance for the land, at the date of the deed, exceeded its appraised value. Secondly. The obvious meaning and object of the statute is, that there should be a ^a*r appraisal on the sale; and when that has taken place, and a deed is given, the sale is complete, and from thenceforth the deed would be unconditionally valid. So the appraisal, when complete, may operate retrospectively, and render the deed valid from the beginning; in the same manner as the recording of a deed operates back to its date, when no other title intervenes. It is observable, in this case, that the defendants set up no claim that arose between the date of the plaintiff’s deed, and the completion of the business by appraisal. But the defendants contend that Flagg, as administrator, took no security from the plaintiff when the deed was executed ; because, they say, that the- plaintiff’s bond bound him to Flagg, in his own person, and not as administrator. They might as well object to the validity of an administrator’s sale, that the note for the purchase money was made payable to the administrator in his own person, and not as administrator. Written contracts with an administrator are usually so drawn that he may sue in his own right, without naming himself administrator .- and', if he does so describe himself, in such a case, he need not make aprofert of his letters of administration. In all such cases the administrator stands as trustee.for the estate as he would if he received the money instead of taking a bond or note; and must account for the avails, when: received, as fully as if payment had been made at the time of the contract. The bond, therefore, which Flagg received of the plaintiff was not only of legal force, and one which Flagg might prudently take, but it has proved efficacious in the result. The land has been appraised, and the avails applied to the diminution of- the debts due from the estate of the deceased..
The title of the plaintiff being thus considered good, it cannot be defeated, by any after title acquired by the defendants, whether from the heirs or the administrators;
The question of estoppel urged at bar ceases-also to be important. So does the question whether the deed of 1824, from the administrators to Strong, be sufficient upon the face of it to convey any estate. I will observe however, that I discover no ground-on which such-a.deed conveying all the land of the deceased, without describing any in particular, can be supported. It could not be known by the present generation whether the administrators accounted for all they sold, nor whether they made a good or a bad bargain in point of actual value. Property of the deceased, newly discovered, could not be inventoried as required by the [263] statute, if it had ceased to belong to the estate by such a general conveyance.
Williams and Marsh, for plaintiff,
Smith and S. Royce, Jun. for defendants.
The opinion of the majority of the Court is, that the judgment of the county court be affirmed.
Judgment affirmed.
N. B. — Prentiss, J. was not with the Court at the last argument and decision. But he heard the argument in 1828 ; and, on learning the above decision, he assented to it as correct.
T. H.
N. B. — Since writing the foregoing opinion, and preparing the report, I have seen the opinion delivered by Justice Story, on the 25th of February, 1829, inthecaseof Wilkinson, plaintiff in error, vs. Leland, et al. in which opinion he asserts that the justices of the Supreme Court of the U. S. were all agreed. They decided to be constitutional, and valid, a statute of Rhode Island, enacted to confirm a sale by an executrix, living in JY. H. of lands in Rhode Island, she not having proved the will in Rhode Island, and it being agreed that her deed was void without the statute, and it appearing that the sale was necessary to pay the debts of the deceased. T. H.