the eyes of such a court, is appropriated for the payment of the 15. DEN V. M'KNIGHT, May T. 1830, Halst. N. J. Rep. 385. DEN tor who has to by will to sell real es sell the A deed made by executors, who were empowered by the will An execu to make sale of the real estate, if made with the intent and for authority the purpose of enabling a third person to reconvey the estate such executors, is voidable by the cestui que trusts, or their heirs; tate cannot but such a deed is not absolutely void, and, therefore, no party same with to the deed, or others claiming under them, may be allowed the intent to repudiate it; neither can strangers avail themselves of such an purpose of objection. and for the having the same recon their heirs. The executors of the testator, to wit, John Taylor and Lydia veyed to himself; but Moore, while the widow of the testator, sold the premises speci- it is voida fically directed to be sold, for eleven hundred dollars, and made ble by the cestui que conveyance thereof pursuant to said will; and John Taylor and trusts and Charles Burton and Lydia his wife, executors of Thomas Moore, deceased, by deed dated December 22, 1812, conveyed the premises in question, with other lands belonging to the testator, to John C. Abbott, for the nominal consideration of $1,333 33; and on the day following, the said John C. Abbott, for the same nominal consideration, conveyed the said premises to Charles Burton, and Lydia his wife. The said deed was made to the said John C. Abbot, at the request of the executors named in the deed, not because he had purchased the premises, but because they, the said executors, could not make a deed for the said lots to themselves, and it was necessary that the deed should be made by them to some other person, in order that a title might be made to some of the executors named in the deed; that he paid nothing to the said executors for the said lots or deeds, and when he conveyed the same to Burton and wife, he did not receive any consideration money for the said lots; that he acted merely as a friend of the parties, and not as a purchaser; that he never viewed or saw the premises, nor knew where they were situated in any other way than from the deed and as the grantors informed him; that it was Charles Burton that called on him to transact the business. No public auction was made, nor was there any contract of sale between him and the executors; that he never took possession or exercised any act of ownership over them, or put his foot on them; that he never paid any consideration money for the said premises, to the executors or any other person, or any expenses for the conveyances; that the deed which he made to. Charles Burton and wife, was made in consequence of the original understanding and agreement at the time the deed was made to him, and in order to carry into effect the said understanding and agreement; and that no money passed at the execution thereof, nor did he receive any, but acted therein altogether at the request of Charles Burton, and to answer the law, as we said; that Charles Burton could not make a deed to himself and therefore it was necessary that the deed should be made to some other person, and the deeds were delivered agreeably to their dates. The law has wisely forbidden executors and trustees from acting in the double capacity of sellers and purchasers, and more especially under circumstances like the present, where no public sale was made, but the executors, consulting only themselves, fixed the time, the place and the price of sale. The cases of Arrowsmith v. Van Harlingen, Coxe 26; Winans v. Brookfield, 2 South. 847; and especially Den v. Wright, 9 Halst. 175, decided in this court, are to be taken to have settled the doctrine here, and render superfluous a labored examination. When I say the transaction is a legal fraud, I use the term in its technical sense; forbidden and destroyed by the law, but not necessarily involving moral turpitude. The term when brought into use was perhaps unhappily selected; and although now well understood by jurists, often strikes with almost withering force, the ear of a man who may have supposed, as for ought that appears in the facts before us, Burton may have done, that in what is thus condemned, he was doing an honest and judicious act. I make this explanation in justice to the memory of Charles Burton. The defendant, although a purchaser from the executors, of Burton, for a valuable consideration, is chargeable with notice of the legal fraud, and stands, therefore, on no more firm ground than Burton would have done. The title of the premi ses in his hands is as liable to be impugned, as if in the hands of Burton. A purchaser with notice is in no better situation than the person from whom he derives his title, and is bound by the same equity; Hughes v. Edwards, 9 Wheat. 499. The safety of one who purchases without notice and in good faith from a fraudulent purchaser, does not extend in this case, to the defendant. He is presumed conusant of the deeds under which he claims; Sugden Vend. and Purch. 544; Lessee of Willis v. Bucher, 2 Binn. 466. The deeds from Burton and wife and Taylor to Abbott, and from Abbott to Burton and wife, bore date on successive days, and were for the same amount of consideration money. A sale and conveyance on the very next day after the purchase, is in the country, out of the ordinary sphere of hasty speculation, an unusual occurrence; still more so, if for the same price, and yet more, if to the very same person from whom the purchase was made. Would not such facts awaken suspicion in the most unthinking confidence? Now if these facts are not in themselves presumptive evidence of legal fraud, yet they are such as should have excited attention and have put the defendant upon enquiry. Information sufficient to put a party ou enquiry, is constructive notice, or notice in law; Sterry v. Arden, 1 John. C. R. 267; Green v. Slater, 4 John. C. R. 46; Hiern v. Mill, 13 ver. 120. In Livingston v. Maryland Ins. Co. 7 Cranch, 547, it was said, "A party shall be taken to have notice of all facts of which he has the means of knowledge in his own possession or is put directly upon inquiry by reference to documents submitted to his inspection. In Dexter v. Harris, 2 Mason, 536, Story, justice, said, The doctrine upon this sub ject as to purchasers is, that they are affected with constructive notice of all that is apparent upon the face of the title deeds under which they claim, and of such other facts as those already known, necessarily put them upon inquiry for, and as such enquiry pursued with ordinary diligence and prudence, would bring to their knowledge." The question of notice is cognizable here. This follows as a corollary from the jurisdiction of this court over the matter. of fraud; 1 Burr. 474; 10 Johns. 462. In conclusion, upon the facts contained in the state of the case, the plaintiff is entitled to recover one moiety of the premises in question. Judgment accordingly. 16. BANK OF HAMILTON V. DUDLEY'S LESSEE, Jan. T. 1829, 2 Pe ter's U. S. Rep. 492. tor or admi er in respect to the lands Marshall, C.J. The mode of subjecting the property of a The execu debtor to the demands of a creditor must always depend on the mistrator will of the legislature. In respect to lands of an intestate they has no pow descend to the heir; and the administrator has no interest in them, but only a power to sell for the payment of the creditors. This power is conferred by the court in a state of things pre- cept by the scribed by the law. The order of the court is a pre-requisite, court in a indispensable to the very existence of the power; and if the state of of the de ceased ex order of the things pre scribed by law which authorised the court to make the order be repealed, Therefore the power to sell can never come into existence. the law. The repeal of in case of a such a law divests no vested estate, but is the exercise of a repeal of the law under legislative power which every Legislature possesses. which the order was obtained, trator can not act. In this case, the court perceive no sufficient reason for dethe adminis claring, that the legislature of Ohio might not repeal the law by which the C. P. was authorised to direct in a summary way, the sale of the lands of an intestate. Jurisdiction of all probate and testamentary matters, may be completely exercised, without possessing the power to order the sale of the lands of an intesSuch jurisdiction is not identical with that power, nor does it comprehend it. And had the constitution established the jurisdiction of the court in the case, still the legislature might prescribe the rule by which the jurisdiction should be exercised. It is a per strictly; and the au thority pear in the that the act be seen to Therefore, where proceedings for the sale of lands of the intestate for the payment of debts were commenced before the repeal of the law of Ohio, under which the order was obtained; and the administrator notwithstanding the repeal proceeded to sell : Held, that the sale was void; the power to sell terminated with the repeal of the law. 17. LOCKWOOD V. STURDEVANT, June T. 1827, 6 Conn. Rep. 373; BERGER, ET AL. EXR. V. DUFF, 4 Johns. N. J. Ch. Rep. p. 368. sonal trust, An anthority to an administrator to sell the estate of his inand must testate is a personal trust, and must be pursued strictly. Thus, be pursued where the order of sale merely authorized the administrator to sell the real estate to raise $ 175, and he sold and granted the should ap estate to the value of $188, it was held to be beyond his au deed of con thority, and void. It is an established principle, says Hosmer, veyance, so C. J., that the authority, by virtue of which an administrator, done may is empowered to sell and convey estate, must appear on the deed of conveyance, and with such certainty that the act done, ed by the shall be visibly warranted by the power conferred. The court of probate, ordered the estate to be sold; but in what manner? In the deed, the grantor describes himself, as administrator, and refers to an order of the court of probate as the source of his authority, and then grants the estate and covenants that he is seized as administrator, &c., held, that such a deed conveyed no estate; and the defect could not be supplied, by recurrence to the probate records. be warrant power con ferred. 18. representa can only The case of Drinkwater v. Drinkwater, ante 7, shows that The legal though the lands are not liable at common law; yet, as they are lives of a made liable by statute for the payment of the debts of the de- deceased ceased, a creditor in that commonwealth may after judgment sell real es tate by li against the legal representative, extend his execution on the es- cese of tate, when it is not insolvent. But such legal representative court to pay cannot administer on the lands, but by selling them according to the order of the proper tribunal. 19. HAYS ET AL. EX'RS. V. JACKSON, 6 Mass. Rep. 149. DRINKWA TER, V. DRINKWATER, 4 ib. 354. debts. And in gran the court and the In granting leave to sell real estate, the court will marshal ting leave the assets upon the following principles: 1. The personal es- willmarshal tate with the exception of specific bequest and such as is ex- the assets; empted from the payment of debts. 2. The real estate which is principles made a fund for that purpose in the will. 3. The descended es- upon which tate, without distinction, whether the testator was seised when are here sta the will was made, or whether it was acquired afterwards. 4. The lands specifically devised, although generally charged with the debts, but not specially appropriated to that purpose. And it is not necessary that the lands should be in possession. of the heir or devisee for this purpose; for they may be lawfully sold notwithstanding the death, alienation or disseisin of a devisee. it is dore ted. 20. AUSTIN V. GAGE, ET AL. 9 Mass. Rep. 395. Lands situ But the lands situate in another state are not assets within this atc in anoth commonwealth. er statc are not assets 21. Knox, ET AL. v. JENKS, 7 Mass. Rep. 488. GRAY V. GARDNER, 3 ib. 399; COLEMAN, ET AL. V. ANDERSON, 10 ib. 105; PERKINS v. FAIRFIELD, 11 ib. 227. The execu The executor or administrator in making the sale must comtor or ad ply with the requirements of the statutes strictly; as in giving ministrator the proper bond, taking the oath, and in advertising and making the sale of in making the sale. Unless every essential direction of the law is complied real estate with, all whose interests are effected by the authority to sell, ply with the are not concluded by the sale. But strangers to the title, who require have no estate or privity of estate or interest; and who claim to law in eve must com ments of the |