Wortman v. Skinner

12 N.J. Eq. 358

• Court: Supreme Court of New Jersey
• Decided: June 15, 1858
• Status: Published

Opinions

Williamson, C.

The land in dispute consists of two tracts of land in Morris county, one lot called the Quirnby lot, of ninety-one acres, the other the still-house lot, of one hundred and nineteen acres. Nicholas Emmons died in 1821, seized of this land, and of considerable other land in the county of Morris. He left ten children. The defendants are the heirs at law of Catharine Skinner, one of the ten children, who died in 1828, leaving a husband who survived her, and died in 1831. The defendants brought an ejectment in the Morris court to recover the two tracts of land of the complainant, who was in possession of the same. The defendants claim four equal undivided eleventh parts of the two tracts as heirs at law of their mother. Nicholas Skinner, one of the defendants, claims, in addition to the one eleventh as heir of his mother, two tenths, which he purchased of Abraham N. Emmons, one of the children of Nicholas, and of James Carr and Sarah his wife, which Sarah was one of the daughters of Nicholas Emmons, and three equal undivided tenths of one equal undivided tenth as grantee of three grandchildren of Nicholas Emmons. The complainant and Isaac Emmons were the administrators of Nicholas Emmons. All the lands of the intestate were sold under an order of the Orphans Court. The complainant claims title to the premises in controversy in the ejectment through John Cooper and Jacob Emmons, who, the complainant alleges, were the purchasers from the administrators under the order of the court.

The complainant’s bill admits the irregularity of the proceedings in the Orphans Court, by virtue of which the lands were sold. The deeds to Cooper and Emmons were executed by the complainant, as the acting administrator of Nicholas Emmons, deceased. He had no power or authority to execute such a deed as acting administrator. The proceedings in the court had been conducted in the name of both administrators. They were directed to sell, and their joint action was necessary to give validity to a deed to the purchaser. But the complainant asks the equitable interference of this court to protect his title, on the ground that the sale was bona fide made by the acting administrator; that the price was the full value of the lands; that the consideration money was paid and appropriated to pay the debts of the intestate’s estate under the direction of the court; and finally, upon the ground that the heirs at law of the intestate, under some of whom the defendants claim, acquiesced in the proceedings through which the complainant acquired his title.

The defendants, in their answer, allege that the proceedings of the Orphans Court were fraudulently contrived by the complainant for the purpose of procuring title to the land in himself; that the personal estate was sufficient to pay the debts, and that the accounts exhibited to the court, which made the representation otherwise, were made up of fictitious demands.

If there was moral fraud on the part of the complainant, any corrupt management or contrivance on his part inducing the Orphans Court to make the order for the sale of the lands, then this bill should be dismissed.

The complainant would not be entitled to the equitable interference of this court to protect or ratify an imperfect or informal legal title procured by fraud. Under such circumstances, the complainant should be left to stand upon his strict legal rights. If there was no moral fraud, then the court may properly interposp and protect the title of the complainant upon such equitable terms as, under all the circumstances, equity and good conscience require to be imposed.

After a careful examination of the burthensome mass of testimony which has been taken in the cause, most of which is wholly useless, and worse than useless, for it throws upon the court a task which is scarcely endurable, of selecting a grain of wheat from a bushel of chaff, I have arrived at the conclusion that the evidence will not justify me in turning the complainant out of court on the ground of any positive fraud which has been practised by him. The facts have created doubts in my mind upon this issue between the parties; but there are several considerations which have induced me to resolve these doubts in favor of the complainant. The proceedings in the Orphans Court were grossly irregular, and the manner in which the estate was administered by the complainant most reprehensible. If a court could sanction such proceedings as the record in this case exhibits, it is but charitable to attribute the conduct of the administrator to ignorance and negligence, rather than to corruption.

But the heirs at law who complain of fraud were aware of the proceedings at the time. Their attention was called to the accounts at the time they were exhibited. They cited the administrators to account, and when the accounts were exhibited, their attention was called to them. They had the benefit of counsel, as the record shows. That was the time to expose the frauds, if any existed. It is not pretended that their discovery of fraud is of recent origin. It is true that they then expressed their dissatisfaction; hut that was the opportune time for action. More than fifteen years were allowed to elapse before any steps were taken to expose the alleged frauds. It is difficult for the complainant, after such a lapse of time, to explain many items of an account, upon the correctness of which strong suspicions are now cast. Besides, many of the mysteries which have not been explained in relation to the proceedings in the Orphans Court, connected with the sale of the lands, have resulted in part from the conduct of the persons interested, upon whom the frauds are alleged to have been practised. It is impossible for me to go into the details — it would make a volume. But take for illustration the matter of the awards. "Why these awards were made ? why they were assigned to Jacob Emmons ? bow they were to benefit, or how they did benefit the individuals in whose favor they were made ? are questions to which no satisfactory answer can be given. The defendants say it was all a plan adopted by the complainant to defraud the persons interested in the estate; but this conclusion is not warranted by the evidence. The heirs at law, the alleged dupes of this supposed contrivance, were all actors with their eyes open. They signed the submissions, and were active in the proceedings. They made no complaint against the awards; and now, when no one can explain the object of all these proceedings, they ask this court to solve the mystery by attributing them to the fraudulent contrivance of the complainant. Again, as to the proceedings in the Orphans Court to procure the sale of the lands, there is “ some evidence of acquiescence on the part of the heirs. They gave to the complainant powers of attorney to act for them, in which is recited the willingness of the heirs to have a part of the land sold for the payment of debts. But without adverting to any other considerations, I deem it sufficient- to say, that after such a lapse of time, and under the circumstances which surround this case, the fraud should be made' out very clearly. There is a doubt in my mind, and that is sufficient to bring me to the conclusion that the issue made by the defendants of actual fraud has not been sustained.

Although it is not necessary, after the conclusion to which I have arrived upon the question of fraud, to decide a point of some consequence made on the argument, it has received due consideration, and I have had no difficulty in my own mind in settling it. On behalf of the complainant, it was insisted that the question of fraud, as to the proceedings in the Orphans Court, could not be investigated upon this bill and answer; that their regularity or validity could not be collaterally called in question ; and that, in order to do this, defendants should have filed a cross-bill putting these matters directly in issue. But all these matters are directly in issue by the present pleadings. They are made by the bill itself. The bill admits the irregularity of the proceedings of the Orphans Court, and asks this court to cure the defects in the proceedings, and to confirm the complainant’s title under them. The bill alleges that, although irregular, the proceedings were bona fide, and it is upon this ground that the complainant claims he is entitled to the protection of a court of equity. The answer takes issue upon these facts, and denies the bona fides of the proceedings in the Orphans Court. It affirms and sets up a defence against the complinanat’s equity ; that they were fraudulent, and thatthe irregularities were all contrivances to cover up the fraud meditated by the complainant. Surely no pleadings by cross-bill could have put the proceedings of the Orphans Court more directly in issue than they are by the present pleadings. The proposition of the complainant’s counsel is correct, but in its application does not exclude the investigation of the fraud alleged in this case.

No cross-bill was necessary — the issue is properly before the court by the pleadings. The propriety of a cross-bill may frequently be judged of by looking at the decreo which must follow the result of the investigation. In this case, had the court determined that the proceedings of the Orphans Court were fraudulent, the decree simply would have been to dismiss the bill. If the defendant had set up some equitable title, and prayed for affirmative relief, and a decree that their title should be established and confirmed, then a cross-bill would have been necessary. But the defendants ask for no decree. The complainant comes with an equitable title, and asks the court to protect it. The defendants come in, and say that no such decree should be made because the complainant’s title was procured by fraud, and they offer to prove the fraud. Certainly thei’e can be no rule of pleading to prevent the defendants making such a defence by their answer, and no rule of evidence to prevent their proving it.

To what relief is the complainant entitled ? The prayer of his bill is, that his title in the said premises may be decreed to be valid, and that the defendants be decreed to confirm his title, so far as they may have any right or claim thereto, and for general relief. If John Cooper and Jacob Emmons were the real purchasers at the administrator’s sale, purchasing in their own right, and subsequently the complainant purchased of them, there being no positive fraud proved, this court would protect the complainant’s title against the legal consequences of any mere irregularities in the proceedings in the Orphans Court relating to the sale of the land. If the administrator was the purchaser, either directly or indirectly, at his own sale, the court may in this suit declare him a trustee for the heirs at law, and reimburse him any advances he may have bona fide made for the protection of the title. Mulford v. Bowen and others, 1 Stockton 797. I am perfectly satisfied from the evidence, although the property was struck off to John Cooper and Jacob Emmons, that they were but the nominal purchasers, and that they acted as mere agents to transmit the title to the complainant. 'In March, 1824, the order to sell was made, and the sale was made July, 1825. On the 20th of May, 1829, a deed was made for the still-house lot to John Cooper by the complainant, as acting administrator, for the consideration, expressed therein, of $687. By deed bearing date the 25th of May, 1829, and for the same consideration expressed therein as in the deed to Cooper of $687, John Cooper reconveyed the still-house lot to the complainant. Both deeds were acknowledged on the same day, the 25th of May, 1829, and recorded the 11th of June, 1830. In July, 1832, the complainant was cited to account. He charges himself in his accounts, which were exhibited to the court in September, 1832, under date of July 2d, 1825, “ To amount of sales of ninety-one acres off of the south part of the homestead farm, at $5.35 per acre, Jacob Emmons purchaser, $486.85,” and “to amount of sales of 119 50-100 acres of the aforesaid homestead farm, at $5.75 per acre, Capt. J. M. Cooper purchaser.’.’ In a subsequent part of his account, but under no particular date, are the following charges: “To amount of sales of the lot called the south part of the homestead farm, more than sold for at vendue, ninety-one acres, at $3.15 per acre, $286.65,” and “to amount of sales of still-house lot, more than sold for at vendue, 119 50-100 acres, at $2.75 per acre, $328.62. On the 18th of March, 1834, the complainant made his report of sales. At that time he held himself the deed for the still-house lot. He also held a 'deed from Jacob Emmons for the Quimby lot, bearing date the 23d of March, 1833, although at that date Emmons had no title for the lot. On the 20th of March, 1834,, two days after the report of sales, and a year, within three days, after Jacob Emmons had executed a deed to him for the Quimby lot, he, as acting administrator, conveyed the Quimby lot to Jacob Emmons. Both deeds express the same consideration, but the deed from Emmons to the complainant is not acknowledged till 1840, and is recorded in 1841. The explanation of all these confused dates is to be found in the fact, that Cooper and Emmons were acting as the mere agents of the complainant.

The complainant, in his bill, attempts an explanation of this transaction, as it appears upon the record and by the date of the deeds. He admits that the property was not struck off to Cooper and Emmons as the real purchasers, but makes this representation: that when the property was struck off', it was supposed by some to be at a low price, and it was understood and agreed by the said administrators and the heirs, who were then present, that it should be struck off to the said Cooper and Emmons, and if there could be obtained for the property afterwards a better price at private sale, or otherwise, it should be conveyed to such person as would give an advanced price, and that Cooper and Emmons consented to hold the property for the benefit of the estate; that the property was not taken possession of by Cooper and Emmons as purchasers; and after waiting two years, or thereabouts, and not being able to obtain a larger price, the complainant agreed with the heirs, or such of them as appeared to be interested, and with the knowledge of the others, to take the said property at a certain price agreed upon by the complainant and the said heirs — one lot for $286.65 more than it was struck off for, and the other for $228.62 more than it was struck off for. The explanation, at best, is but a poor one, and as poor as it is, is not proved. If this was a bona fi.de purchase made by the complainant, how is it that the arrangement was made with some of the heirs, and with the knowledge only of the others? Why does, not the complainant name the heirs with whom tho agreement was made ? The complainant admits that the first agreement made, when the property was struck off to Cooper and Emmons, was made with the heirs then present. How many of the ten heirs were then present, the the bill does not state. The fair presumption is, that mentioning the number would not have strengthened the complainant’s case. He states that when the second agreement was made, it was with such of the heirs as appeared to be interested, and with the knowledge of the others.

But there is no proof that comes up even to this imperfect statement. It certainly is not true that any agreement was made by the administrators and the heirs present at the sale that the property should bo struck off to Cooper and Emmons upon the agreement stated in the bill, or upon any other agreement or understanding. I do not recollect any evidence in the cause to show that any one of the ten heirs was present at the sale. But the administrator, Emmons, was not there; and while everything is represented to have been done by both the administrators, one of them, Emmons, was absent several hundred miles distant at that time, and was never consulted as to the sale, and in fact knew nothing about it. There is no proof that the heirs made any agreement that the property should be struck off to Cooper and Emmons, or of the subsequent sale to the complainant, or there ever was in fact such agreement made by any one. There is no evidence that the heirs had any knowledge that Cooper and Emmons were mere nominal purchasers, or of the subsequent agreement made with the complainant to take the conveyance of the Quimby and still-house lots. Everything attendant upon the transaction was calculated to conceal all knowledge of its true character from the heirs; there were no deeds executed until years after the sale. The deed for one property was not made until four years after the sale, and for the other, not until nino years after. There was no deed to the complainant on record for one of the properties until more than fifteen years after the sale by the administrators. No report of sales was made for more than sixteen years; in fact every avenue to information was closed up by the complainant himself.

The complainant has totally failed to show any such acquiescence on the part of the heirs as will deprive them of any of their equitable rights. Besides, there could have been no acquiesence that would bind these defendants. They claim under their mother, who died in 1828. The deed to Cooper was made a year after, and all material transactions were subsequent to the death of the defendant’s mother and while they were infants. It appears to me perfectly clear that the complainant can only hold the property as against these defendants as their trastee, and that the accounts between them are to he settled in reference to such relationship.

The complainant is entitled to be reimbursed the purchase money he paid or accounted for in his settlement with the Orphans Court, and the interest on the same, and he must account for the rents and profits since he first took possession.

There were one or two matters which, on the argument, it was insisted should be considered as equitable liens on the property, should the court hold the complainant a mere trustee. On the 15th of May, 1822, Nathaniel Skinner and his wife, the parents of the defendants, executed to Jacob Emmons a mortgage on all their interest in the real estate of Nicholas Emmons, deceased, to secure the sum of six hundred dollars. Jacob Emmons died leaving a will, by which lie made the complainant Ms residuary legatee. The complainant was executor of the will, and this mortgage came into his hands as such executor. lie now produces the mortgage, and claims the amount due on it as a debt secured by a lien on the land in dispute. The defendants set up, in their answer, that Nathaniel Skinner and his wife did not owe anything to Jacob Emmons at the time the mortgage was given; that Skinner at that time was much embarrassed, and that the object of the mortgage was to defeat his creditors. If this were so, it could not help the defendants. The mortgage was good between the parties to it; and neither the mortgagors, or any persons claiming under them as heirs or otherwise, could ever defeat the mortgage on such ground. But I do not think, under all the circumstances, that this mortgage should he considered as an equitable lien in the complainant’s hands for the protection of his title.

It constituted no part of the consideration which the complainant gave for the property. It is evident, when the administrators struck off the property to Cooper' and Emmons, it was understood that the property was sold free of this mortgage, and that when Jacob Emmons conveyed to the complainant the property was considered unencumbered. This mortgage was never assigned or handed over to the complainant for the purpose of protecting his title. I do not consider, therefore, that this should be considered an equitable lien upon this property.

Again, it appears, by the final accounts, that there was a " deficiency of $757.44 of assets to pay the debts.

It is insisted that the defendants should pay to the complainant their proportion of this amount, and that such proportion should be decreed a lien upon their interest in the land.

The manner in which this estate was administered, the circumstances attending its final settlement, in connection with the evidence that has been adduced to show that if there was not, there ought to have been assets more than sufficient to meet the deficiency, present the case to the court in an aspect which does not entitle the complainant to invoke the aid of this court to make good the deficiency. It is not to be forgotten that it is not the defendants who are invoking the powers of a court of equity to protect their title. All they ask is to "be left to their legal rights. My conclusion is, that all the complainant is entitled to, in taking the accounts, is the amount he accounted for to the Orphans Court and the interest. As to the amount of interest which the defendants have in the land, I do not understand that there is any dispute, except as to an interest which Nicholas Skinner purchased of Sarah Corwin, and to that it appears that the complainant had a deed from Sarah Corwin; the deed was executed to Skinner. If there is any serious dispute, however, as to the quantity of interest of the defendants in the land in controversy, I will hear counsel upon that question.

The appeal was argued by

A. G. M. Pennington and P. D. Vroom, for appellant. Jacob Vanaita and J. W. Miller, for respondents.

The following opinion was delivered by

Vkedenbtírgh, J.

In 1848, N. Skinner and others, the appellees in this court, and the defendants below, brought an ejectment against Wortman, the appellant and the complainant below, in the Morris circuit, to recover certain undivided shares of two tracts of land.

The ejectment being noticed for trial, Wortman, in 1852, filed his bill in Chancery against the defendants, stating that both parties claimed title under one N. Skinner, who died intestate in 1821; that he and one Isaac Emmons were the administrators of said deceased, and as such, were ordered by the Orphans Court of Morris, in March term, 1824, to sell the said land to pay debts; that they did so sell them, on the 2d July, 1825, to John Cooper and Jacob Emmons; that Ms co-administrator having moved out of the state, he alone executed the. deeds to Cooper and Emmons, received the consideration money, and paid it out to the creditors, and that after-wards the said purchasers conveyed the same to him, the complainant; that the defendants claim title as heirs at law of the said intestate, and that his reasons for coming into Chancery are, that he expects that the defendants intend to impeach his title at law — first, upon an allegation that the deeds so made to Cooper and Emmons were in trust for himself; and secondly, upon the ground that said deeds are signed by himself only, and not by both administrators; — and he insists that he is not compelled to run the hazards of this informality at law, but is entitled to have his title confirmed and quieted in equity. He therefore prays an injunction that his title may be decreed to be valid; that the defendants be decreed to confirm the same, and for other relief. *

The defendants answering admit that they claim as in said bill is alleged, and that the deeds were made to said Cooper and Emmons, and by them to complainant, as charged, but say that they know nothing about the pretended sale on the 2d July, 1825, and deny that the said Cooper and Emmons were bona fide purchasers; and they aver that the said deeds from the complainant to them, and from them to the complainant, were executed on the same day, and were only colorable and to enable the complainant to get the lands, and that they are void in law and equity, and they ask for no relief. The Court of Chancery decreed that the complainant was not entitled to his specific relief because Cooper and Emmons were merely nominal purchasers, and that they acted as mere agents to transmit the title to the complainant; that he must account to them for the rents and profits from the 1st of April, 1827, to the present time, and upon being credited out of such rents with the purchase money and interest, convey to the defendants free from all encumbrances.

From this decree the complainant has appealed.

Two general questions are presented for consideration.

1st. Is the decree right as it stands ?

2d. If not, what should be the action of this court thereon ?

First. Is the decree right as it stands ?

The whole decree is based upon the finding below that the complainant is a trustee for the defendants.

Do the pleadings and proofs show that the complainant in this matter was in fact but a trustee for the defendants ? If they do, it must be upon the ground that he has been guilty of fraud, either in fact or in law. As to fraud in fact, the Chancellor was of opinion that it was not proved. In this I entirely concur. Not only have the pleadings and proofs failed to satisfy me of actual fraud, but in this mass of rubbish, the collections of over a quarter of a century, I have not been able to find a scintilla of it. I see in it irregularities, a total want of guarding against any accusation of fraud, but upon every question touching the real merits of the transaction I see nothing but the evidence of the most scrupulous good faith; and if the declining years of the complainant are now harassed by this litigation at the instigation of these heirs, it is probably owing to the fact, that in his early manhood he guarded with more care than the law enjoined upon him the interest of their ancestors.

Second. Has the complainant been guilty of fraud in law ?

It is insisted by the defendants, and so found by the Chancellor, that the sale by the administrators to Cooper and Emmons was only colorable; that Cooper and Emmons bid off the property for the complainant, and after-wards made the deeds to him in pursuance of that arrangement. If this be so, it would be a legal fraud, rendering them voidable in equity, however honest the thing might be in fact.

Let us first see, before considering the evidence, what this doctrine, as applied to the case before us, really is. My understanding of it is this — that if an administrator, at public or private sale, sells land to another, upon an agreement made before or at the sale, that such person shall buy or bid off not for himself or for others, but for the administrator, that the purchase money is to come from him, and the deeds made from him to the bidder, and by the bidder back again to the administrator, in pursuance of said agreement, then equity will set aside the proceedings as fraudulent in law. But if the purchaser bids not for the administrator, but for himself or for the heirs of the deceased, or for anybody else, then the principle does not apply. The rule was made from considerations of public policy, to prevent the land from being sold under value by the secret machinations of the administrator ; and therefore such agreement and arrangement must be made and exist before and at the very instant of the sale. Any agreement made, however soon after it is struck off by the administrator to the purchaser, is not within the letter, the spirit, or the meaning of the rule. The rule has then had its operation upon the sale, and the land is again instantly free for all the world to purchase. The very reason for establishing the original rule requires this construction of it, otherwise it Would produce the very evil it was intended to guard against, by restricting to that extent the power of the purchaser to alienate. Applying these principles to the ease before us, if Cooper and Emmons, on the 2d July, 1825, bid off this property for the complainant, which was carried out by the subsequent execution of the deeds to the complainant, then the complainant was at that time, and has been ever since, but a trustee for the defendants, and his title is voidable in equity. But if such was not the fact — if the purchase was made on the 2d July, 1825, not for the complainant or for his benefit, but for the benefit of Cooper and Emmons or of the heirs of N. Skinner, and the deeds from Cooper and Emmons to the complainant was by virtue of an arrangement made after the 2d July, 1825, then there was no legal fraud in the transaction. Immediately after the property was struck off on the 2d July, 1825, the complainant had as good a right to buy from those to whom the property had been struck off as anybody else, and it would then be in him fraud, neither actual nor legal. Equity only looks to getting the highest price for the property; everything else is in its eye mere formality.

It will be recollected that the complainant was no heir of the intestate. His mother was, hut not he.

How stands the fact, then, upon the pleadings and proofs ? Did Cooper and Emmons, on 2d July, 1825, hid off this property for the benefit of the complainant or for the benefit of the heirs of H. Skinner ? If for the former, it was fraud in law — if for the latter, it was not.

The hill avers that the sale of said land was made by said Cooper and Emmons for the largest price they could get for the same at public sale, and deeds subsequently made to them; therefore that such sale was made on the 2d July, 1825, in pursuance of the order of the Orphans Court and of advertisements made according to law, and that the lands were sold to them at public sale in a fair and open manner to the highest bidder, and for a fair and full consideration, and for as much as could be obtained for the same, and in good faith and for the best interest of the estate and for the benefit of the heirs of H. Skinner ; that the complainant, after waiting two years in hopes of receiving the purchase money, and neither the heirs nor their agents, Cooper and Emmons, paying it, and the property being in a very low condition, and bringing little to the estate, and the heirs being unable to get any advance upon the bid, he voluntarily, two years after the sale, about the 5th of April, 1827, stepped forward and bought the property of Cooper and Emmons, and actually gave to them §615.27 more than they had agreed to pay, and thus not only enabled them to perform their contract, but also appropriated the advance, as well as the original sum, to the benefit of the heirs, and then, in pursuance of said purchase, went into possession, which he has ever since retained.

If this be true, the property, on the 2d July, 1825, was not sold for the benefit of the administrator, but for the benefit of the heirs. The complainant was no trustee of the defendants, nor within the letter or spirit of the rule.

The answer is very voluminous, but only an infinitesimal part is upon personal knowledge. It piles up a vast mass of allegations of fraud in fact; but I have been unable to find in it any allegation, even upon belief or information, that the sale of the 2d July, 1825, was for the benefit of the complainant, or any denial of the allegation, that the sale of the 2d July, 1825, was for the benefit of the heirs. The auswer alleges that there was no sale at all to anybody at any time, and that when the deeds were made to Cooper and Emmons they were made under an agreement that the property was to be immediately deeded back to the complainant. But this was some two years after the sale of the 2d July, 1825, and after the complainant himself alleged he had made his contract with Cooper and Emmons to purchase it of them.

It is a matter of no concern what took place in that regard then — the vital question is what took place on the 2d July, 1825, before and when the property was struck off to Cooper and Emmons. All I have discovered in the answer upon this point is, that they have no knowledge of their own about the pretended sale, in said bill alleged to have been made on the 2d July, 1825; and that, from all the information they have been able to gather in relation thereto, they are led to and verily believe that there was no public sale of said lots, or either of them, on the 2d July, 1825, or at any other time. I find no allegation in the answer, even upon information or belief, that these lots were 'struck off on the 2d July, 1825, for the benefit of the complainant, so that the question is not even raised by the answer, that this property, on the 2d July, 1825, was struck off for the benefit of the complainant. But even if there had been such an allegation in the answer, we should want some proof before we would deem it to be so. Where the deeds from the administrators back again are made very soon after the sale, it might create suspicion, but here the deeds were not made for a long time afterwards; and we can imagine many other reasons for the retransfer besides an original agreement to that effect. But if there was any doubt upon the pleadings, the question is entirely cleared up by the evidence. There is but one unvarying current of testimony by all the witnesses who were present, or who knew anything of the transaction, that the sale of the 2d July, 1825, was for the benefit of the heirs, and not of the administrator, and that the interest of the administrator arose about two years afterwards, and upon an entirely new and distinct consideration. It appears to me, therefore, that the sale by the complainant to Cooper and Emmons was not fraudulent in law, and that the complainant is not, and never was in that regard the trustee for the defendants, and that, consequently, the decree must be reversed.

The next question is, shall we decree specific relief, dismiss the bill, or remit to Chancery.

Convinced, as I am, that the proceedings of the complainant, however technically irregular, have been entirely upright and honest, and that the last ten years of his life have been unjustly annoyed with this litigation, I think we should decree specific relief, and dispose of this cause at once and for ever, if we can do so consistently with the law and the evidence.

First. Can we grant specific relief? This involves the following considerations.

1st. Was there a sale at all on the 2d July, 1825.

2d. If there was, was it made by both administrators.

3d. If it was, is it fraudulent in law.

4th. Or was it fraudulent in fact.

5th. If it was a bona fide sale by the two administrators, does the fact that the deeds were signed by one only of the administrators afford ground for equitable relief.

First. Was there, on the 2d July, 1825, any sale at all ?

The bill avers, under oath, that there was. The defend- . ants, in their answer, say they know nothing about it, but do not believe there was. A sale was demanded by the condition of the estate — the sole object of all these proceedings was to effect that very object; the estate was indebted to the administrators, and it was only through •a sale he could expect to get his money. He applied to the court for power to sell, and they so ordered. The premises were repeatedly advertised for sale in the usual way. At these sales, all the other lands of the deceased were sold, and are still held by the purchasers. The deeds aver the sale. In 1832, the complainant charges himself with the purchase money, and disposes of it in the course of administration.

The report of sales to the Orphans Court, in 1834, avers that the premises were advertised, and exposed for sale on the 21st May, 1825, and adjourned at a less bid to 2d July, 1825, when they were struck off and sold to Cooper and Emmons, as the highest bidders. The Orphans Court, in their order, after reciting that it appeared to them that the sales had been advertised according to law, decree that they approve and confirm the same. The complainant himself made the deed, and took the title .under the faith of a sale on the 2d July, 1825. All parties, ten needy heirs, living on and near the premises, and present at the vendue, acquiesced, all of them, in it as a sale from July 2d, 1825, until 1848, and then this suit is brought by their descendants. The account given by the complainant of the sale is entirely rational and probable under the circumstances. Hut more than this, both Smith and Van Vliet testify, with entire clearness, that they were present on the 2d July, 1825, and that these lands were then publicly struck off and sold by the adminis-trator to Cooper and Emmons, who were the highest bidders for the same, for the benefit of the heirs, and no one contradicts them. It is true that Cooper and Emmons did not bid for themselves, and that was understood all round. This was a question entirely between Cooper and Emmons and the heirs. It did not make it less a sale between the administrator and Cooper and Emmons. The agreement of the administrator, that if Cooper and Emmons were the highest bidders, it should be struck off to them for the benefit of the heirs, did not take away from it the character of a sale. It was struck off' to bar that very conclusion, and for the very purpose of making it a sale. The administrator could not help, if he sold at all, to strike it off to the highest bidder, nor could he hinder them from bidding it off for whose benefit they pleased; and whether he agreed to such an arrangement, was a matter of entire indifference. After all this, it is too much to call upon us to doubt the fact, that on the 2d July, 1825, these lots were publicly struck off and sold by the complainant to Cooper and Emmons: that fact bound the complainant to the creditors, and Emmons and Cooper and their principals, the heirs, to the administrators for the purchase money. It was not the less a sale by the administrator because Cooper and Emmons bought it for the heirs; nor is it less a sale by the administrators because they saw fit to indulge Cooper and Emmons, or their principals, the heirs, by -waiting for the purchase money, or because they agreed to wait for it for some time, to enable the heirs to make more out of the property. Cooper and Emmons or the heirs might never comply, or might be long in making payment; but it was, as between the administrators and the creditors, and the heirs and Cooper and Emmons, a regular, valid, and bona fide sale, and which the parties had a right to carry out and consummate at any time afterwards, no one having a right to complain of delay except the creditors.

It is objected that Mrs. Skinner was not party to this arrangement of the sale on 2d July, 1825. It makes no difference if she was or not. Her rights, whatever they were, were subject to the rights of the creditors, and liable to be divested by proceedings for their benefit. If she or her husband was no party to the understanding between the heirs and Cooper and Isaac Emmons, it only goes to show that she was not entitled to any share of the advance paid by the complainant, but it does not affect the validity of the sale.

Second. Was it a sale by both administrators?

Isaac Emmons, the other administrator, had moved into the state of New York. It does not appear whether he was or was not present at the sale. I am not aware that it is necessary that both administrators should be continually present on the ground at a public sale, to make it, in the contemplation of law, the sale of both. There is no evidence that Isaac Emmons has ever dissented. We must therefore assume, at this distance of time, that he acquiesced.

All the other real estate was sold in the same way; and if the objection is valid as to this, it is valid as to all the other property. All the proceedings up to the deed are in the joint name of the administrators — the inventory, the rule to show cause, the order for sale, the report of sales., the advertisements for sale, the final account, the citation —are all in their joint names, and the sales were confirmed by the court as the sale of both. The order to sell was upon both. Isaac Emmons was one of the administrators, and we are to presume that he knew the condition of the estate, and that a sale was necessary. All the presumptions are that he acquiesced in the sale of 2d July, 1825, and that the said sale was the joint sale of both administrators.

Third. Was the sale fraudulent in law? This has been already fully considered.

Fourth. Was the sale fraudulent in fact? With the decree of the Orphans Court standing unreversed; after all the original parties of full age living near partaking in these proceedings, themselves receiving a large proportion of the proceeds of this dishonesty, if any there were ; after acquiescing for a quarter of a century; after they have gone to their graves, to permit the bona fides of this transaction to be brought in question in this collateral way by a succeeding generation is in discord with every principle of law or equity.

Mr. Vliet, one of the heirs, says — in 1832, he went, after the settlement in the Orphans Court in 1832, at the request of some of the heirs, to examine the accounts. He was then familiar with all the items: he says they were all correct, and he was perfectly satisfied. It is idle to particularize further. The evidence of the bona fides of the transaction is multitudinous — it is stamped upon almost every page of this voluminous testimony.

The only remaining question is — is the fact, that these deeds are signed by one only of two administrators, such a defect as to entitle the complainant to equitable relief.

The Orphans Court controls the proceedings up to and including the report and confirmation of the sales, and then the statute steps in, and commands the administrator to make a deed to the purchaser. The statute (Rev. Laws 435) says, that any administrator may apply for order to sell. The court may order any administrator to sell. The court ordered here the two administrators to sell — they did sell. The statute says the said administrator shall make a deed — the said administrator here did make the deed. Now admitting this to be, as is claimed by the defendants, a fatal defect at law against the complainant’s title (but which I very much doubt), it appears to me, within the plainest limits of equity powers, to be the duty of Chancery to relieve against if.

It has been taken for granted in the pleadings and in the argument. The Chancellor says — “If Cooper and Emmons were the real purchasers at the administrators’ sale, purchasing in their own right, and subsequently the administrator purchased of them, there being no positive fraud proved, this court would protect the complainant’s title against the legal consequences of any mere irregularity in the proceedings of the Orphans Court relative to the sale of the land.” And I see no reason why it should not be done. In considering this question, I shall treat the complainant as I think he has a right to be treated, as a bona fide purchaser holding by mesne conveyance under the administrator.

The question gives rise to three considerations.

1st. Is it a case where equity has the power to interfere.

2d. If it has, ought it, under the facts, to interfere.

3d. Can relief be given in the present position of the pleadings.

First. Is it a case where equity has the power to interfere ? Chancellor Kent, in his Commentaries, vol. 4, p. 344, says —“ though it is an immutable rule that the non-execution of a naked power will never be aided, yet if the power be one which it is the duty of the party to execute, he is a trustee for the exercise of the power, and has no discretion whether he will or will not exercise it. Chancery adopts the principle as to trusts, and will not permit his negligence, accident, or other circumstances, to disappoint the interest of those persons for whose benefit he is called upon to execute it. This principle, according to Lord Eldon, pervaded all the cases. The equity jurisdiction, in relieving against the defective execution of powers, is exerted in the case of a meritorious consideration in the person applying for aid. The assistance is granted in favor of creditors and bona fide purchasers who rest their claim upon a valuable consideration.” These principles are fully borne out by the authorities referred to.

It appears to me that the case before us is most clearly within these principles. Here the administrator is expressly commanded by the statute to make the deed. It is not only the duty of the administrators to make the deed, but they are expressly commanded by the statute to do it. They have no discretion whether they will or not. Suppose there had been no deed at all executed by the administrators, but they, having received the purchase money, set the purchaser at defiance, would not Chancery have compelled them to execute deeds, and considered the heirs and administrators as trustees for the purchaser ? Suppose the administrators had both died after receiving the purchase money, would not Chancery have ordered their successors in office to have executed it, or if no successors, would it not have enjoined the heirs from proceedings at law ?

If an executor is ordered by the will to pay debts, will not equity compel the executors to sell and make deeds ? if they die, will it not appoint new trustees to carry the will into execution ? If it will do that when a private person orders his executors to sell, will it do less when the same thing is the command of a statute ? I take it, that as long as executors or administrators are proceeding within the powers of the Orphans Court, that court will compel them, at each step, to proceed according to the provisions of the statute: when it passes without their jurisdiction, equity will take it up, and compel the execution of the trusts.

If relief in this ease is within the power of equity, is this a case -where it ought to be exercised ? I cannot conceive a more meritorious case. The sale was bona fide— the purchase money has been paid — it has been received by these defendants in contemplation of law. The defect is one of pure formality.

Third. Can specific relief be given in the present position of the pleadings ?

Story, in his Equity Jurisprudence, § 177, says — “ Equity will not interfere in regard to powers which are in their own nature statutable, where equity must follow the law, be the consideration ever so meritorious. And indeed it may be stated as generally, though not universally true, that the remedial power of a court of equity does not apply to the supplying any circumstance, for the want of which the legislature have declared the instrument void; for otherwise the court would in effect repeal the very policy of the legislature.” And again, in § 96, he says —“ But in case of defective execution of powers, we are to carefully distinguish between powers which are created by private parties and those which are specially created by statute, as for instance, powers of tenants in tail to make leases. The latter are construed with more strictness, and whatever formalities are required by statute must be punctually complied with, otherwise the defect cannot be helped, or at least may not perhaps be helped in equity; for courts of equity cannot dispense with the regulations prescribed by statute, at least where they constitute the apparent object and policy of the statute.”

How if Isaac Emmons, the other administrator, had been a party to these proceedings, the court could have enforced a new deed by both administrators, and then there could have been no argument that this doctrine of Story would apply. But would specific relief upon the pleadings, as they stand, come at all in collision with the doctrine of the text? I do not see how it can. The text, as well as the authorities upon which it is founded, goes no further than to say that the Court of Chancery will not assist to violate a statute. As for instance, if this case had been like the one of--decided by Chancellor Vroom in-there is no doubt but that the doctrine of the text would apply, and Chancery would not interfere. That was a case where the administrator sold at private sale, whereas the statute orders it to be done at a public sale. The Orphans Court in that case might interfere, and order a resale, and compel the administrator to sell at public auction, but clearly Chancery could not repeal the statute by declaring such sale to be valid. And of the same nature are all the cases upon which the text of Story is founded.

. So here, if this statute had said no deed shall be valid unless signed by all the administrators, Chancery could order and compel all of them to join in a new conveyance, but could not declare a deed good signed by only one. But is the one before us any such case ? Does the statute say, that unless both administrators sign the deed, it shall not be valid ? It does no such thing. And in declaring a deed executed by one administrator good, Chancery violates neither the letter, the policy, or the spirit of the statute; on the contrary, it is acting in aid of them all, and it comes fnlly within the principle we have before stated, that Chancery will compel the execution of such a trust. It is at most but a mere defective execution of a power which equity will relieve against in the case of a meritorious consideration in the person applying for aid. Not only is the Court of Chancery here not asked to do anything in violation of the statute, but the statute looks to the land as assets for the payment of debts, and which one administrator may sell, and to the sale by the administrators mriuce officii, and not by virtue of any personal coe fidenec, and which one administrator may well execute.

If after the report of sales, even before the purchase money had been paid, the administrador or purchaser had come into Chancery alleging that the co-administrator had moved out of the state, -would that court, upon the principle that they would carry out trusts, have hesitated to order the administrator to make a deed to the purchaser ? If so, have they not now the same power in this suit to declare one already made valid to pass the title.

Again, where a testator orders his executors to sell to pay debts, and for any reason they cannot convey without leaving a cloud upon the title, it is common for equity to decree that the heirs shall join in the conveyance, and to restrain them from proceeding at law. I do not see why the principles of these decisions do not apply to the present ease with even more force than they do to a will. In the case of a will, it is to be presumed that some personal confidence is reposed by the testator in the exeeutors. But here the proceeding by the administrator is purely viriute officii. If Chancery will enforce the order of the testator, will it less enforce the command of the statute ? This question came directly, under a statute like ours, before the Supreme Court of Illinois in the case of Thorp v. McCollum, 6 Gil. 629.

The court there say — “ Ho trust will fail in equity for want of a trustee. The general rule ought to depend on the nature of the power and its objects. Executors and administrators have a power, connected with a trust, in collecting, selling, paying debts, and distributing the surplus. If there are no limitations in the will restricting the persons or manner of executing these powers, the court will aid to give effect to a fair sale, which cannot take effect otherwise oil account of a defective execution of the powers conferred by law. In attempting to perform these duties, the administrators make a sale, and only one of them executes the conveyance. Here is a defective execution of the power by one, which the law has conferred on both. But it partakes so much of the nature and qualities of a trust that the court will, to a certain extent, discharge the duty in his room and place, by compelling the other administrator, in a proper case, to join in the conveyance. Rev. Laws of Illinois 1833, p. 644, § 98; 2 Mun. 129; 1 Russ. & M. 418; 8 Ves. 570; Fonbl. Eq. 54; 2 Will. Ex’rs 689; Harris v.Ingleson, 3 P. Will. 92; Parsons v. Parsons, 9 N. Hamp. R. 309; 2 P. Will. 222; Bryth v. Boyd, 1 Story’s R. 487; Hill on Trustees 86, § 192; 2 Sugd. on Powers 100, note; 2 Ves. jun. 357; 2 Met. R. 243; 5 Ves. 856; Kemp v. Kemp, 4 Kent 326; 5 Ves. 722; Buchanan v. Hamilton, 8 Barr 417; Zebart v. Smith, 3 Binney 73; Brown v. Higgs, 5 Ves. 498.

It appears to me that the relief prayed for is clearly within the jurisdiction of the Court of Chancery, and ought to be granted under the pleadings and proofs as they stand, and that the decree should be reversed, and a perpetual injunction be awarded.