TAYLOR ET AL. v. GALLOWAY ET AL.

JUDGES PEASE AND BURNET.

1822.

A power given by will to executors to sell real estate, may be executed by one executor, if one only accept the office under the will.

A power to sell does not authorise a barter or exchange, but a sale for cash only.

This was a bill in chancery, prosecuted in the Common Pleas of Greene county, and carried into the Supreme Court by appeal, where it was decided, at May term, 1822, by judges PEASE and BURNET. The case, so far as it involved the points decided, is stated fully in the opinion of the court by judge Burnet, and need not be repeated.

Opinion of the court by Judge BURNet.

The decree that ought to be rendered in this case, may be determined by the solution of two questions.

1st. Was the acting executor, James Williams, authorised to sell the land, without the concurrence of William Edmonds, who was named in the will as a co-executor?

2d. If he was, has he made such a sale to the complainant, Taylor, as is authorised by the will?

The authority given by the will, is in the following words: "All the rest of my estate I leave to be sold, as my executors, hereafter named, shall think best; and the moneys arising from such sale, I give unto my infant daughter, Susanna Eliza Green, to her and her heirs forever."

William Edmonds and James Williams were constituted executors. Wil. liams obtained probat, and undertook the duties of executor alone. Edmonds, who did not join in the probat, was afterwards appointed guardian to the infant children.

The contract entered into by Williams, the acting executor, with the complainant, Taylor, authorised the latter to change the locations, to redeem such parts of the land as had been sold for taxes, and to do whatever might be necessary to secure the property and perfect the title; in consideration of which, Taylor was to have an equal moiety of the land.

The first question that arises, is, was Williams alone authorised to sell the land?

It is manifest that the will gives to the executors a naked power, not coupled with an interest. If land be devised to executors to be sold, or if it be devised to be sold by executors for the payment of debts, in either case the power is said to be coupled with an interest, and the survivor may execute the trust,

and ignorance of law, executes a writing which does not carry into effect the contract and the intention of the parties, parol evidence may be received to establish the fact, and the true contract and real intention of the parties enforced in equity: and this, where no fraud is alleged, nor no mistake in a matter of fact, but a mistake in point of law only--the legal effect and operation of the writing not being such as the parties intended.

because the act of God shall not prejudice; but if one of the executors refuse to act, (the devise being to them by name,) the other, it would seem, at common law, cannot sell, because it is a joint confidence and must be jointly exercised. This principle has been changed by 21 H. 8, which authorises a sale by those who consent to act. (Swinb. Wills, 406, 7, 8.)

If land be devised to be sold by executors, this is a naked authority, not coupled with an interest, and cannot be executed by a survivor. (Swinb. on Wills, 407.) If the devise be, that the land be sold by the executors, not naming them, although the power be not coupled with an interest, it seems that it shall survive; because the power being to the executors generally, those who execute the will are legally the executors, and therefore may execute all the powers given to the executors, as such. (Co. Lit. 112, 113. Cro. Eliz. 26.) But if a devise be, that A and B, who are constituted executors, sell the land, although they may legally sell without taking on themselves the duty of executing the will, yet if one should die, the survivor cannot act, because the power must be pursued strictly, and it being given to two jointly, it is determined by the death of one of them. The case of Bonefant, (Cro. Eliz. 80.) contains a different principle, but that case does not seem to be supported by the authorities.

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In the case before us, the devise is, that the executors may sell. Williams, therefore, having proved the will, and taken on himself, the office of executor, was thereby vested with all the power given to the executors as such, and consequently had a right to make the sale.

But the most important question is, whether the contract made with the complainant, Taylor, be such a sale as was contemplated or authorised by the will.

The manifest design of the testator, was to convert the whole of his estate into money, for the benefit of his infant daughter. The trustees are not author. ised to exchange or incumber the land or to dispose of any part of it, to per. fect a title to the residue. The power is to sell, and the sale must be for

money.

It may be said, that the contract with Taylor was a sale, and that he is a purchaser for a valuable consideration. This is technically true, as it would have been if the executor had conveyed to him a moiety of the land as a reward for effecting the sale of the other moiety. But it is presumed, that such a sale would not be valid, as it would defeat the object of the testator.

The power must be strictly pursued: and must be executed according to the manifest intent of the testator.

If the trustee could incumber the estate, by granting an equitable claim to an undivided moiety, for the purpose of procuring a removal of the entries and a completion of the title to the residue, he might, on the same principle, exchange it for land in Virginia, and give a moiety of it to the agent who should negotiate the exchange. ̧

The trust delegated by the will is personal, and cannot be transferred. As Williams voluntarily took on himself the office of trustee, it was his duty to execute the trust in person, and to do every thing that might enable him to do so. He certainly had no right to give away any part of the land, to procure a third

person to perform services that he was bound to perform himself. If such a discretion exists it is impossible to say how far it extends or by what rule it shall be limited. It would vest in the trustee the same power, and the same control over the property, that the testator had in his life. This difficulty can be obviated only by holding the executor to a strict execution of the power, which was in the present case, to sell the land for money, and at a fair price. As the contract on which the bill is founded, was not such a sale, we feel bound to say, that it was not authorised by the will, and that it vested no right in the complainant. The circumstance, that the guardian joined in the contract, cannot alter the case, as he certainly had no power to sell the real estate of his ward.

It being ascertained that the complainant acquired no title, either legal or equitable, to the land in question, by the contract, under which he claims, it is unnecessary to look into the title of the defendants.

Bill dismissed.

ANONYMOUS.

BEFORE ALL THE JUDGES.

A bill in equity to foreclose will be sustained notwithstanding the statuary remedy by scirie facias.

Upon such bill the mortgaged premises must be valued and the court will direct a sale, and not a forclosure, if two thirds of the valuation amounts to more than the debt, and such sale will be directed on the same principles as upon executions at law.

A writ of error was allowed by Judge M'Lean to remove the record of a final decree, rendered by the court of Common Pleas in Huron county, on a bill to forclose an equity of redemption. The principal errors assigned were: 1st. That such a bill could not be sustained, because there was an adequate remedy at law, under the act providing for the recovery of money secured by mortgage.-2d. That the court below had directed the mortgaged premises to be sold without valuation.

The cause having been argued by the counsel, in Huron county, was taken under advisement, and submitted to the court in Trumbull, county, at the term in 1821, all the judges being present.

After mature consideration, the following points were unanimously decided: 1st. That the court may sustain bills of this description, notwithstanding the statute allowing proceedings by scirie facias. 2d. That in every such case the laws of the state require that the mortgaged premises be appraised, and that they be not sold at less than two-thirds of the appraised value.

For the regulation of the practice in similar cases, the court established the following rule, that no final decree be entered on a bill to foreclose an equity of redemption or to effect a sale of mortgaged premises, until the court shall have caused an appraisment to be made agreeably to the provision of the act rugula. ting judgments and executions; and that if, on the return, of the appraisement it shall appear that the premises, at two-thirds of the valuation, do not exceed the sum due on the mortgage, the court may decree a foreclosure; but if the mort. gaged premises, estimated at two-thirds of the appraisement, shall exceed the

amount due on the mortgage, and a decree be rendered for the complainant, a sale shali be directed on the principles of the act regulating judgments and executions.

SMITH v. PARSONS.

JUDGES PEASE, HITCHCOCK, AND BURNET.

1822.

The insolvent laws of a sister state discharging debtors from the debt, upon surrendering up all their property, are valid as to contracts made between citizens of the same state and within its jurisdiction after the law was enacted and while in force.

This cause was decided by Judge Pease, Hitchcock, and Burnet, in Ross county, Nov. 1822. The whole case is fully stated in the opinion of the court,

by Judge Burnet.

Opinion of the Court by Judge BURNET.

This cause is presented for the opinion of the court on the following agreed

case.

"The suit is brought on promissory notes, executed by defendant when a resident and citizen of the state of Maryland. The defendant pleads his discharge under the bankrupt law of that state. At the time the notes were exe. cuted, both plaintiff and defendant were citizens of Maryland. The bankrupt laws were enacted prior to the execution of the notes. The defendant is a regular certificated bankrupt, or insolvent, under the laws of Maryland, which are a full discharge of all debts returned. This debt was returned. All defendant's property was duly assigned to trustees in Maryland."

Before an attempt is made to investigate the principles presented by this case, it is necessary to state, that this court recognizes the constitutional right of the Supreme Court of the United States, to expound the Constitution, and to settle its import, wherever a doubt arises; and that it is our duty, implicitly to receive their construction as a rule of decision, in all cases in which it applies. That tribunal having decided, that a state has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts within the meaning of the Constitution; and provided there be no act of Congress in force to establish a uniform system of bankruptcy, conflicting with such law; our enquiry may be limited to the single question-Whether the law of Maryland did or did not, in the sense of the constitution, impair the obligation of the contract on which the present suit is founded.

This case is clearly distinguishable from that of Sturges v. Crowninshield, and cannot be considered as determined by it. In that case, the notes were given prior to the passage of the law. In this case, the law was in force at the time the notes were executed. By that case it was decided, that a legislative act cannot affect a contract made before its execution, so as to discharge a party from its obligation, which would have been the consequence had the plea been sustained. In this case it is to be decided whether a law in force at the time of

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the execution of a contract, can operate on that contract, so as to relieve a party from the performance of its stipulations. The case of McMillan v. McNeil, is confidently relied on as settling this question; but that case appears to be as clearly distinguishable from this, as the case of Sturges v. Crowninshield, as will appear by a comparison of facts. In that case the parties were both residents of the State of South Carolina, where the cause of action arose. There was no bankrupt law in force in that state. The defendant, Mr. McMillan, removed to Louisiana, where he obtained the benefit of the cessio bonorum.He had also obtained a certificate under the bankrupt law of England; and, being sued in the District Court for the District of Louisiana, pleaded those certificates in bar of the action. The contract was made under the laws of one state; the discharge was obtained under the laws of a different state. The law of South Carolina governed the contract-the laws of Great Britain and of Louisiana were relied on to discharge it. In the present case, the parties were residents of Maryland; the contract was made, and the certificate was obtained, under a law of that state, in force before and at the date of the contract. this comparison, it appears that the cases are distinguishable in several important facts. Yet if it were clearly discernable, that the Supreme Court intended to to embrace within the scope of their opinion, a case situate precisely like the present, this court would receive it as their guide; they would not feel them. selves at liberty to investigate its correctness, or to question its authority, but would at once render judgment in favor of the plaintiff. But such does not appear, from the opinion delivered by the Chief Justice, to have been their intention. He decides "that the case was not distinguishable in principle from the preceding case of Sturges v. Crowninshield; that the circumstance of the state law, under which the debt was attempted to be discharged, having been passed before the debt was contracted, made no difference in the application of the principle." The reason is not stated, but we can be at no loss to discover it. A law of Louisiana, or a statute of Great Britain, could have no influence on a contract made in Charleston, under the laws of South Carolina. The parties cannot be presumed to have had a knowledge of their existence; much less to have agreed, that they should form a rule for the construction and gov. ernment of their contract. They could not, therefore, under any circumstances, affect it, or the rights of the parties under it: and consequently, it made no difference whether they were passed before or after the contract, for in neither case would they influence it. Well then might it be said, that the circumstance of the law having been passed before the debt was contracted, made no difference. This is understood as applying strictly to the case then before the court; and being so applied, who can question its correctness? If the law, under no circumstances could bear on the contract, the fact of its prior existence could give it no other or greater force than would be ascribed to it, had it been enacted after the date of the contracts; and consequently, the distinguishing fact relied on in this case, could not in that case make a difference in the application of the principle.

From this view of the subject, the question presented in the case before us seems to be open, and the court at liberty to examine and decide what effect the bankrupt law of Maryland has on the notes on which the present suit is brought.