Smith, 0. J.,
delivered the opinion of the court.
This was a bill filed in the Chancery Court for Holmes county, for the purpose of enjoining a judgment at law, recovered by William J. Wheeless, as guardian of Mary IT. Whitehead, against the appellant and his sureties. The relief prayed for, is based upon the alleged failure of consideration in the bond on which the judgment was recovered, arising from the invalidity of the title to the land, sold by Wheeless under a decree of the Court of Probates, as the guardian of the said Mary H.
It appears from the bill, that Wilson W. Whitehead made and published his last will and testament, by which he bequeathed the whole of his personal estate to his wife, Mrs. Ann Whitehead, and his five children, in equal shares. He directed that his personal property, consisting of slaves, stock, &c., should be kept together, and remain upon his farm, on whi.ch he resided, under the control of his widow; and that distribution of the personal property, should be made as each child should respectively arrive at the age of majority, or should marry.
In reference to the real estate of testator, his will directed, that when the youngest child should arrive at full age, or should marry, the farm on which he lived, and the whole of his real property, should be divided, by his executors, into six equal parts, and be distributed by lot amongst his widow and his said children; pro[650]*650viding however, that if either of the devisees should object to that method of distribution, then his real estate to be sold on a credit of twelve months, and the proceeds of the sale to be equally divided amongst them.
The will was admitted to probate by the Court of Probates of Holmes county. The executors, appointed in the will, one of whom was the widow of the testator, renounced and refused to qualify. Subsequently, letters of administration, on the estate of the testator, were granted to the widow and Andrew Herron, with whom she had intermarried. They settled up the estate, distributed the ■personalty, and closed their administration in 1851. In 1852, upon the petition of Isaac W. Whitehead, one of the heirs at law of the testator, a decree of the court was made, directing a division of the land of the testator amongst the heirs. A division was accordingly made; and the share or portion of Mary II. was allotted to her. She was then, and still is, a minor, and unmarried. In 1853, Wheeless was appointed guardian of the person and estate of the said Mary II., and in January of the following year, at his instance, a decree of the court was made, directing a sale, upon a credit of one, two, and three years, of her land. The decree was obtained upon the allegation and showing, that the sale would be for the benefit of the minor; and it is alleged in the bill, that the decree directing the sale, was made without notice to the minor, as required by the statute.
It appears further, that Wheeless, pursuant to the decree thus obtained, sold the land of his ward; that the appellant purchased the same, and executed his bonds for the purchase-money; that one of these bonds was put in suit by Wheeless, and that the judgment which is sought to be enjoined, was recovered upon it.
The bill avers, that the sale was illegal and void, and hence, that the appellant acquired no title to the land; first, because the division and sale were made in violation of the stipulations in the will; and secondly, because the decree ordering the sale was made without legal notice to the ward. The appellant professes his willingness to comply with his contract, and to complete his purchase, by a payment of the money, if his title shall be adjudged good; but in the event it should be declared void by the court, he prays that the guardian may be enjoined from all attempts to enforce [651]*651satisfaction of the said judgment, or payment of the two bonds still in his possession. There is also a prayer for general relief; but the bill contains no offer to restore possession of the land, and to account for the rents and profits of the same while in his possession.
The defendants in the court below filed a general demurrer to the bill, which was sustained, and the cause dismissed. From the decree dismissing the bill, this appeal is prosecuted..
By the provisions of the will, a joint estate in fee was vested in the testator’s widow and his five children in all of his lands. Agreeably to the express terms'of the will, the joint interest thus created could not be severed, until the youngest child arrived at full age, or married. When either of these events happened, any one of the devisees had a right to insist upon a sale of the lands, and a distribution of the proceeds, instead of a division in the mode prescribed in the will. By another direction in the will, the entire personal property was to be kept together, on the farm upon which the testator lived, under the control and management of the widow; and the shares or portions of the respective legatees, were not to be delivered to them until they successively attained full age, or married. Hence it is evident, that the provision in regard to a division of the land, and the right vested in each of the devisees, to insist upon a sale of the whole real property, instead of a division in the mode prescribed, was designed exclusively for the benefit of the widow, and of the younger children. It was not therefore simply a formal or immaterial direction in the will,- which it was proper or competent for the executors to disregard, or the Court of Probates to set aside. It secured important and valuable rights, to the party whose real property, was the-subject of the decree rendered in the Court of Probates for a division and sale. Hence we feel well assured, that the order for the division of the lands, and the decree directing the sale of that portion of the same which had been allotted to Mary H., were illegal and void. It results necessarily, that the sale made under the decree was equally illegal and void. It neither divested her title, nor conferred title upon the purchaser.
But the question, whether the appellant was entitled to any relief, does not depend upon the isolated fact, that no title was acquired in virtue of the sale made under the decree, by the guardian, but upon the case presented by the bill.
[652]*652And in reference to the question, -whether the guardian should not "be restrained from enforcing the judgment at law, recovered upon one of the bonds given by the appellant to secure the purchase-price of the land, it is clear that the appellant is not entitled to relief. The bill contains no charge of misrepresentation, undue concealment, or of any act performed by the guardian, in reference to the sale, which in the estimation of a court of equity amounts to fraud. In fact, the record fully warrants the presumption, that the appellant was fully acquainted with the terms of the will, being himself one of the attesting witnesses, and with the ages of the devisees, and the condition of the estate. The demurrer admits the truth of the allegations of the bill. And the hill shows clearly, that the very grounds, upon which the aid of the Court of Chancery is invoked, constituted a valid and effeqtive defence in the action at law; and there is no showing whatever, nor an attempt at a showing, that the appellant could not have availed himself of that defence at the trial. According to the settled doctrine of this court, he would therefore, in an ordinary case, not be entitled to the specific relief prayed for in his bill.
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Smith, 0. J.,
delivered the opinion of the court.
This was a bill filed in the Chancery Court for Holmes county, for the purpose of enjoining a judgment at law, recovered by William J. Wheeless, as guardian of Mary IT. Whitehead, against the appellant and his sureties. The relief prayed for, is based upon the alleged failure of consideration in the bond on which the judgment was recovered, arising from the invalidity of the title to the land, sold by Wheeless under a decree of the Court of Probates, as the guardian of the said Mary H.
It appears from the bill, that Wilson W. Whitehead made and published his last will and testament, by which he bequeathed the whole of his personal estate to his wife, Mrs. Ann Whitehead, and his five children, in equal shares. He directed that his personal property, consisting of slaves, stock, &c., should be kept together, and remain upon his farm, on whi.ch he resided, under the control of his widow; and that distribution of the personal property, should be made as each child should respectively arrive at the age of majority, or should marry.
In reference to the real estate of testator, his will directed, that when the youngest child should arrive at full age, or should marry, the farm on which he lived, and the whole of his real property, should be divided, by his executors, into six equal parts, and be distributed by lot amongst his widow and his said children; pro[650]*650viding however, that if either of the devisees should object to that method of distribution, then his real estate to be sold on a credit of twelve months, and the proceeds of the sale to be equally divided amongst them.
The will was admitted to probate by the Court of Probates of Holmes county. The executors, appointed in the will, one of whom was the widow of the testator, renounced and refused to qualify. Subsequently, letters of administration, on the estate of the testator, were granted to the widow and Andrew Herron, with whom she had intermarried. They settled up the estate, distributed the ■personalty, and closed their administration in 1851. In 1852, upon the petition of Isaac W. Whitehead, one of the heirs at law of the testator, a decree of the court was made, directing a division of the land of the testator amongst the heirs. A division was accordingly made; and the share or portion of Mary II. was allotted to her. She was then, and still is, a minor, and unmarried. In 1853, Wheeless was appointed guardian of the person and estate of the said Mary II., and in January of the following year, at his instance, a decree of the court was made, directing a sale, upon a credit of one, two, and three years, of her land. The decree was obtained upon the allegation and showing, that the sale would be for the benefit of the minor; and it is alleged in the bill, that the decree directing the sale, was made without notice to the minor, as required by the statute.
It appears further, that Wheeless, pursuant to the decree thus obtained, sold the land of his ward; that the appellant purchased the same, and executed his bonds for the purchase-money; that one of these bonds was put in suit by Wheeless, and that the judgment which is sought to be enjoined, was recovered upon it.
The bill avers, that the sale was illegal and void, and hence, that the appellant acquired no title to the land; first, because the division and sale were made in violation of the stipulations in the will; and secondly, because the decree ordering the sale was made without legal notice to the ward. The appellant professes his willingness to comply with his contract, and to complete his purchase, by a payment of the money, if his title shall be adjudged good; but in the event it should be declared void by the court, he prays that the guardian may be enjoined from all attempts to enforce [651]*651satisfaction of the said judgment, or payment of the two bonds still in his possession. There is also a prayer for general relief; but the bill contains no offer to restore possession of the land, and to account for the rents and profits of the same while in his possession.
The defendants in the court below filed a general demurrer to the bill, which was sustained, and the cause dismissed. From the decree dismissing the bill, this appeal is prosecuted..
By the provisions of the will, a joint estate in fee was vested in the testator’s widow and his five children in all of his lands. Agreeably to the express terms'of the will, the joint interest thus created could not be severed, until the youngest child arrived at full age, or married. When either of these events happened, any one of the devisees had a right to insist upon a sale of the lands, and a distribution of the proceeds, instead of a division in the mode prescribed in the will. By another direction in the will, the entire personal property was to be kept together, on the farm upon which the testator lived, under the control and management of the widow; and the shares or portions of the respective legatees, were not to be delivered to them until they successively attained full age, or married. Hence it is evident, that the provision in regard to a division of the land, and the right vested in each of the devisees, to insist upon a sale of the whole real property, instead of a division in the mode prescribed, was designed exclusively for the benefit of the widow, and of the younger children. It was not therefore simply a formal or immaterial direction in the will,- which it was proper or competent for the executors to disregard, or the Court of Probates to set aside. It secured important and valuable rights, to the party whose real property, was the-subject of the decree rendered in the Court of Probates for a division and sale. Hence we feel well assured, that the order for the division of the lands, and the decree directing the sale of that portion of the same which had been allotted to Mary H., were illegal and void. It results necessarily, that the sale made under the decree was equally illegal and void. It neither divested her title, nor conferred title upon the purchaser.
But the question, whether the appellant was entitled to any relief, does not depend upon the isolated fact, that no title was acquired in virtue of the sale made under the decree, by the guardian, but upon the case presented by the bill.
[652]*652And in reference to the question, -whether the guardian should not "be restrained from enforcing the judgment at law, recovered upon one of the bonds given by the appellant to secure the purchase-price of the land, it is clear that the appellant is not entitled to relief. The bill contains no charge of misrepresentation, undue concealment, or of any act performed by the guardian, in reference to the sale, which in the estimation of a court of equity amounts to fraud. In fact, the record fully warrants the presumption, that the appellant was fully acquainted with the terms of the will, being himself one of the attesting witnesses, and with the ages of the devisees, and the condition of the estate. The demurrer admits the truth of the allegations of the bill. And the hill shows clearly, that the very grounds, upon which the aid of the Court of Chancery is invoked, constituted a valid and effeqtive defence in the action at law; and there is no showing whatever, nor an attempt at a showing, that the appellant could not have availed himself of that defence at the trial. According to the settled doctrine of this court, he would therefore, in an ordinary case, not be entitled to the specific relief prayed for in his bill.
The point remaining to be considered is, whether the appellant, under the general prayer in his bill, is entitled to any other relief. And this must be determined by referring to the allegations and averments therein contaiped.
These present a single ground for relief: the failure of consideration in the bonds executed to the guardian by the appellant, for the purchase-price of the land, arising from the illegality of the sale, and the consequent invalidity of the title derived through that sale. It is manifest, that the appropriate relief arising from this ground, would be to enjoin the guardian from collecting the two remaining bonds of the appellant, now in his hands, and also to restrain the guardian from collecting the notes made by Starke and assigned by the appellant, in part payment of the said bonds. Now it is clear that this ought not to be done, unless the sale should also be declared void and set aside, and the parties placed in statu quo, by ordering the appellant to deliver possession of the ward’s land to the guardian, and compelling him to account for the rents and profits which accrued during the appellant’s possession of the same. The bill contains no offer to surrender possession, and to account [653]*653justly for the use and occupation of the land. For this reason he is not entitled to relief. A party who seeks equity, must do equity before he will be aided in a court of equity. But in this case, as a successful defence in the action at law, would not have had the effect to vacate the sale, and to place the parties in statu quo, and would have afforded the appellant but partial relief, he may still, in a proper case, be protected against the judgment as well as the unpaid bonds.
Upon this view, although the bill must be dismissed, it is ordered to be dismissed without prejudice.