
    Richmond.
    Heth & als. v. The Richmond, Fredericksburg and Potomac R. R. Company.
    1848. January Term.
    
    1. Property to which a trust has attached, will be subjected to the trust in the hands of a purchaser for value, who has constructive notice of the trust; and this though it was irregular in the trustee to invest the trust fund in the property.
    2. Though the deed creating the trust only conveys personal property, yet if this property is converted into land by the trustee, and this land is afterwards sold by the trustee to a Iona fide purchaser for value, and the title papers shew the fact that the land is the substitute of the trust fund, the purchaser will be held to have constructive notice of the trust.
    3. A trustee has no power to change the trust fund, except as authorized by the instrument creating the trust.
    4. Under the circumstances, the relief given to the cestuis que trust against the purchasers of the trust property, was the purchase money and interest from the time the cestuis que trust were entitled to the enjoyment of the profits of the trust fund.
    5. QniEitE : If wife joining with her husband in a conveyance of land as his land, thereby divests herself of her own equitable interest in said land.
    
      George Pickett sen’r died in 1821. His will was admitted to record in the Hustings Court of Richmond, and George C. Pickett and Robert Pickett, two of the executors therein named, qualified as such in that Court. Beside other provisions and bequests in favour of his widow, he gave to her for life, his mansion house and an adjoining lot; and directed his executors to pay to her annually, for her life, the sum of 2000 dollars ; and charged his whole estate for the payment of that annuity. After making provision for his three sons, and giving to each of his three unmarried daughters 12,000 dollars, he, for the purpose of paying his debts and legacies, raising the annuity given to his widow and the portions of his three unmarried daughters, as also their maintenance and education, devised and bequeathed to his executors all the residue of his estate real and personal, with power to sell, at their discretion, any part thereof for the purposes aforesaid: and so much of his estate as should remain after the accomplishment of these objects, he directed to be divided into eight equal shares, six of which he gave to six of his children, and the other two he gave to trustees for his two married daughters and their children.
    In 1822, Margaret L. one of the daughters of George Pickett sen’r, being about to be married to John Heth, a deed of marriage settlement bearing date the 14th of May 1822, was executed, by which, after reciting the intended marriage, and that the said Margaret L. was possessed of and entitled to personal property, consisting of slaves, debts, legacies and money, and that it had been agreed between them, that the said property of every description should be vested in a trustee to be held for the purposes thereinafter declared, the said Margaret L. conveyed to George C. Pickett all the property, debts, money and legacies of which she was possessed, or to which she was entitled in law or equity, upon trust that John Heth should, during the joint lives of himself and his intended wife, receive and take all the profits of said property for the joint use of the said John and Margaret L. and for the benefit and support of the issue of the marriage ; and after the death of one of them, that the survivor should take and receive the said profits for the benefit and support of the survivor, and of the said issue during the life of the survivor; and on the death of the survivor, that the said George C. Pickett, his executors, &c. should convey, assign, set over and pay to the issue of said intended marriage the whole of the said property, debts, legacies and money, or such part thereof as should then remain. And the deed provided that the trustee should have full authority to demand, receive, recover and collect by all lawful means all the property and effects, debts, legacies or moneys belonging or owing to the said Margaret L., to be held by him for the purposes therein before set forth. This deed was executed by Margaret L. Pickett, John Heth and George C. Pickett, and was duly admitted to record in the clerk’s office of the Hustings Court of Richmond, as to all the parties: and the marriage took place.
    In 1833 a bill was filed in the Circuit Court of Henrico county, in the name of John Heth and Margaret L. his wife, against George G. Pickett, which after stating the execution of the deed aforesaid, alleged that the execution of the trust had become very inconvenient as well to the trustee as to themselves; and for this and other causes it was desirable that the trustee should be changed. And they pray that Beverly Heth may be substituted as trustee in the place of George C. Pickett; and that Pickett may be decreed to pay over and transfer to Beverly Heth whatever money or property he may have received for the said Heth and wife by virtue of the trust confided to him.
    
      George C. Pickett answered the bill, concurring in the prayer that another trustee might be appointed in his place, and professing his willingness to pay over the trust funds in his hands to any trustee the Court should appoint. The cause was heard by consent on the 20th February 1833, on the bill, answer and an exhibit, which was the deed of marriage settlement; and the Court made a decree directing George C. Pickett to convey and transfer to Beverly Heth all the property, both real and personal, then in his possession, or to which he had title under the deed aforesaid; and substituting Beverly Heth as trustee in the place of Pickett; and vesting him with the same powers and authority which the deed gave to Pickett.
    
    Great delays having occurred in the administration of the estate of George Pickett sen'r, and in the payment of the legacies by the executors, a deed bearing date the 4th day of March 1833, was executed by Margaret Pickett the widow, George C. Pickett and Robert Pickett in their own right, and as executors, and as trustees under the will for two of their married sisters and their children, John Heth and wife, and Beverly Heth 1 3 their trustee, and the other parties interested in the estate of George Pickett sen’r, in which it is recited, that it had been found impracticable to dispose of the estate of George Pickett sen’r, while encumbered with the annuity in favour of his widow, so as to enable the acting executor George C. Pickett, in any convenient time, to discharge the three legacies of 12,000 dollars each, or even to refund the balance due to himself for expenditures beyond his receipts in the course of his administration ; and therefore it had become expedient for the parties interested in the estate to make an arrangement with the widow touching her said annuity, whereby the estate should be discharged therefrom, and might be disposed of by sale or otherwise so as to refund to the executor George C. Pickett the amount advanced by him, and satisfy the said legacies: that the executor’s account having been settled, he was found in advance on the 9th of August 1832, after charging himself with his mother’s annuity up to that time in the sum of 13,154 dollars, and that the principal of the aforesaid three legacies, and much of the interest thereon remained unpaid; therefore it had been agreed by the parties on the 11th day of August 1832, that the said Margaret Pickett should discharge the estate of George Pickett sen’r from being further chargeable with the payment of the said annuity for life of 2000 dollars; and in lieu thereof and of the arrearages due thereon, she should take certain specified property and debts estimated at 16,379 dollars, in full of one moiety of said annuity and the arrearages thereof, and of her interest in all the other property of the estate ; and should moreover take from Robert Pickett, on account of a debt he owed the estate, an annuity of 500 dollars during her life, and should take a further annuity of 500 dollars during her life, which should be exclusively placed as a charge on the mansion house property : that George C. Pickett should take certain specified real estate and debts, among which was seven undivided twenty-fourth parts of the mansion house property, subject to its just proportion of the said annuity of 500 dollars chargeable thereon, for three thousand five hundred dollars : that John Heth and his wife, in part of her specific legacy, should have and take the residue of the mansion house property, that is to say, seventeen undivided twenty-fourths thereof, subject to its just proportion of the said annuity of 500 dollars, at the agreed price of 8500 dollars; it being understood that John Heth may acquire the other seven twenty-fourths of said property by paying to George C. Pickett the sum of 3500 dollars. And each of the other two legatees was to take certain specified property at fixed prices.
    The deed then proceeds to recite that for the purpose of carrying into full effect the agreement of the 11th of August 1832, and to wind up and close as soon as practicable the affairs of the testator’s estate, it was agreed by the parties of the first part to convey to Thomas Green as their agent to accomplish these purposes, all the estates, interests and powers of them the said parties of the first part to and in and over the estate real and personal of the said George Pickett sen'r; “ but so that he shall not be answerable over or accountable for any thing in the performance and execution of, or touching his said undertaking beyond the moneys of, or proceeding from the said testator’s estate which shall actually have come into his hands and possession.” And they then convey to Green all their and each of their title, estate, interest, power and authority, legal or equitable, to, in, or over the real and personal estate, debts and effects which were of the said George Pickett at the time of his death, and which had not been disposed of in pursuance of his will, free from all liens and charges of all or either of the said parties of the first part, and especially of the annuity of 2000 dollars to Mrs. Pickett. The deed then proceeds to set out the provisions and conditions on which the property is conveyed to Green ; of which, however, it is only necessary to state the following : “That the said Thomas Green shall forthwith proceed to carry the said agreement of the 11th of August 1832, above recited and in part set out, into perfect and complete execution and effect ;” — “and in pursuance thereof to convey and transfer the real and personal property and debts therein mentioned as thereby intended and prescribed. It being well understood that the mansion house property shall be conveyed in such manner and to such person or persons as the said George C. Pickett and the said Beverly Hath as trustees aforesaid may require and direct.” He is directed to carry out the agreement in relation to Mrs. Pickett; and out of the proceeds of the property conveyed to him to pay the debts of George Pickett sen’r, the balance due to the executor George C. Pickett upon his administration as executor, and the balances due upon the specific legacies to the three daughters of George Pickett sen’r, with the interest thereon, “after allowing credit for the aggregate sum stipulated as a part satisfaction in and by the said agreement of the 11th of August 1832.” This deed was regularly admitted to record in the clerk’s office of the Hustings Court of the City of Richmond, as to all the grantors.
    On the 5th of March 1833, the day after the execution of the preceding deed, Thomas Green, George C. Pickett and Beverly Heth executed a deed to John Heth, in which the deed of the day before was referred to, and it was recited that said deed provided, among other things, that the mansion house and adjoining lots of the estate of the late George Pickett, should be estimated at 12,000 dollars, subject to an annuity of 500 dollars payable to Mrs. Pickett for her life, and that George C. Pickett should have an interest therein of 3500 dollars, and that the residue thereof should be received in part °f the legacy given by her father to Mrs. Margaret L. Heth the wife of said John Heth: That John Heth had accounted with George C. Pickett and paid him for his interest in said mansion house and adjoining lots; and had “'transferred to Beverly Heth, trustee of Margaret L. the wife of said John Heth, property to the full value of 8500 dollars,” and had assumed to pay the annuity of 500 dollars to Mrs. Pickett: And that George C. Pickett and Beverly Heth had directed the said Green to convey to John Heth the said lots, as was contemplated at the time of the execution of the deed aforesaid of the 4th instant, to Thomas Green. By this deed Green, George C. Pickett and Beverly Heth conveyed to John Heth the mansion house and adjoining lots subject to Mrs. Pickett’s annuity: and this deed was duly recorded. Subsequently, by deed bearing date the 23d of June 1834, John Heth and his wife, in consideration of the sum of 15,000 dollars, conveyed to the Richmond, Fredericksburg and Potomac Railroad Company “all the property conveyed to the said John Heth by an indenture from Thomas Green, George C. Pickett and Beverly Heth, bearing date the 5th of March 1833, and admitted to record in the office of the Court of Hustings of the City of Richmond on the 25th of April following; that is to say,” &c., setting out the property; and Mrs. Margaret Pickett, who joined in the deed, on a consideration moving from John Heth, released her claim on said property as a security for her annuity, to the said Railroad Company. And John Heth covenanted that he was seized in fee of the premises free of incumbrances, and that he, with his wife, had good right to convey: and he gave a general warranty of the title. The certificate of the privy examination of Mrs. Heth was endorsed on the deed, and it was duly recorded. The last payment for the property, amounting to 12,401 dollars 64 cents, was made by the Railroad Company to John Heth on the 27th of June 1838; and they proceeded to build their depot and workshops thereon.
    
      John Heth having died insolvent previous to April 1845, Mrs. Heth and her ten children, nine of whom were infants, then filed their bill in the Superior Court of Chancery for the Richmond circuit, against the Richmond, Fredericksburg and Potomac Railroad Company and Anderson Edwards, late sheriff of Chesterfield, and as such administrator of John Heth. In their bill they set out the will of George Pickett sen'r, the deeds before mentioned, and the agreement of the 11th of August 1832. They state that they know nothing of the appointment of Beverly Heth as their trustee; that if John Heth ever did transfer to Beverly Heth as trustee as mentioned in the deed of the 5th of March 1833, property of the value of 8500 dollars, or any property whatsoever, they know nothing of it, and after diligent enquiry they can discover no trace of it; and they believe that he intended to do it, but that it was never done: That John Heth, Beverly Heth and George C. Pickett are dead, the two first insolvent, and that there has been no administration on Beverly Heth’s estate. They charge that by the agreement of the 11th August 1832, and the deed of March the 4th, 1833, the seventeen twenty-fourths of the mansion house property became part and parcel of the trust subjects under the marriage settlement aforesaid; and that the said Railroad Company could not take the said property otherwise than subject to the trusts declared in the deed of marriage settlement. And they pray that the Railroad Company may be compelled to surrender to them, or to a proper trustee for them, the aforesaid portion of said property, and account for the rents and profits; and make partition of said property, or otherwise render complete and full justice to the plaintiffs in the premises.
    The Railroad Company answered the bill. They say that at the time when the deed of the 23d of June 1834, was executed, or when the purchase money was paid, or at any time before, they had no notice that John Heth had not transferred to Beverly Heth, trustee of Mrs. Margaret L. Heth, property to the value of 8500 dollars. That the defendants had the statement in Beverly Heth's deed, that the transfer had been made, of the truth of which they had no reason to doubt; and that they had no notice whatever of any matter shewing, or tending to shew, that there would, after the execution of the deed of the 23d of June 1834, and the payment of the said 15,000 dollars, be any equitable claim or charge whatever upon the said property; and they therefore relied upon the defence of purchasers for valuable consideration without notice.
    The defendants exhibited a copy of the record of the suit in which Beverly Heth was appointed trustee, and insisted that John Heth and his wife had recognized the validity of that appointment, and had authorized persons to deal with him as trustee; and that John Heth and wife and both the trustees having united in the deed of March the 4th, 1833, to Green; both George C. Pickett and Beverly Heth having united with Green in the deed of the 5th of March to John Heth, the defendants, being fair purchasers for value without notice, could not be affected by a breach of trust by Beverly Heth, if there was such, which they did not admit. The defendants proceeded to state various grounds of defence arising out of the deeds before mentioned and the will of George Pickett sen’r. They insisted that Mrs. Heth had certainly parted with all her title to the property in question, as well by the deed to Green, as by uniting with her husband in the deed to the Railroad Company. And she being united with the other plaintiffs as coplaintiff, even if they had an interest in the property, this was a good defence to the suit, of which they claimed the benefit. But they insisted that none of the plaintiffs had any title, legal or equitable, in the Pr°Perty-
    . It was insisted further, that if the plaintiffs had any well founded claim to the seventeen twenty-fourths of the property at the time of the conveyance to the Railroad Company, that a fraud had been practised upon the Company, by suffering them to go on and improve the property without apprising the Company of such claim ; as the building on these lots was known to George C. Pickett and Beverly Heth at the time.
    The cause came on to be heard in March 1846, when the Court dismissed the bill with costs as against the adult plaintiffs and thereupon the plaintiffs applied to this Court for an appeal, which was allowed.
    
      Macfarland & Rhodes, for the appellants.
    There
    are some facts in this case about which there is no doubt. It is certainly true that an ample provision was made for Mrs. Heth by the will of her father. It is certain that the legacy has never been paid. It is certain that the land charged with that legacy has not been sold by the executors. It is certain that there was an antenuptial marriage settlement between John Heth and his wife, the purpose and object of which was to secure her property to herself and her children. And it is certain that the appellees are in possession of property which was charged with Mrs. Heth's legacy, and which at one time at least seemed to have been applied to the payment pro tanto of that legacy.
    We shall consider the case first under the deed of March 4th, 1833. Under that deed Thomas Green was certainly a trustee. He took nothing for himself; but took the naked, barren title, and held the whole property in trust for others. What then is the true import and effect of that deed as to Mrs. Heth and her children ? The intent of that deed as to them is express. By it the parties undertook to set apart the property in controversy in this case in trust for Mr. and Mrs. Heth and her children.
    It is true that, according to the terms of the deed, Green was to convey the property according to the dii'ecti°ns of George C. Pickett and Beverly Heth; but he was not to convey it for their purposes. This provision is not to be interpreted as a power of appointment over the appointer’s own property would be interpreted. If the property had been theirs, they might direct as they pleased to whom it should go. But it was not theirs; and the power vested in them was to be exercised over the property of others; and the language must be construed in reference to the subject matter.
    
    The power vested in George C. Pickett and Beverly Heth was connected with a duty; and they were bound to take care that the direction they gave was consistent with their duty and the rights of the cestuis que trust. It was a power too, not to transmute the subject, but to direct the conveyance of it so as to secure the unimpaired enjoyment of it to the cestuis que trust. Whoever these were, it was to be secured to them; and Green as trustee was bound to see that the property was not diverted from the trust; and certainly he could do nothing which would impair or endanger the trust subject.
    If the effect of the deed of the 4th of March 1833, is to vest in Mrs. Heth and her children the equitable interest in the property, then it could not be divested but by the act of all the cestuis que trust. The interest of Heth and wife and their children in the property settled on the marriage, was an indivisible interest, which could not be separated during the lives of Heth and wife, or the survivor of them, by any act of either. Roanes v. Archer, 4 Leigh 550; Perkins v. Dickinson, 
      3 Gratt. 335; Mundy v. Vawter, Id. 518. If the bequest to Mrs. Heth had been land, then there could be no doubt that it could not be divested. But let it be conceded that the legacy was to be paid in money. If the executor pays it in land, is he at liberty to reclaim the land? The rule is, that whilst generally the trustee is not at liberty to change the subject, and cannot do it without some danger to himself, yet if he does it, the cestuis que trust may elect to take either. Forbes v. Ross, 2 Bro. Ch. R. 430; Adye v. Feuilleteau, 1 Cox’s R. 25; Ex parte Watson, 2 Ves. & Beame 414; Heathcote v. Hulme, 1 Jac. & Walk. 122; Oliver v. Piatt, 3 Howard’s R. 333; Lewin on Trusts, 24 Law Library 686. And the rights of the cestuis que trust in this property are the same whether it was regular or irregular to apply the property to the satisfaction of the legacy.
    But was the application of the property to the satisfaction of the legacy irregular? It must be admitted that it was the duty of the trustee to make the trust fund profitable. He might put it into stocks, or let it out on mortgages, and in some cases may invest it in land, especially with the consent of the adult cestuis que trust. If this was not a good investment, and that can affect its validity, it is for the other side to shew it.
    It will be contended on the other side, that it was not intended by the parties the land should be taken in part discharge of the legacy; but that it was merely a step to hasten the collection of it. The deed, however, affords no warrant for such a construction. The idea is inconsistent with the provision that John Heth and wife took in part payment of the legacy ; and also with the provision that Green should convey as George C. Pickett and Beverly Heth should direct. The case is in fact one, of an executed agreement. The deed conveys the property in execution of an agreement previously made; and the land by the consent of the parties is set apart by the one and accepted by the other. Suppose the property had been conveyed to Beverly Heth instead of Green. He must have held it upon the trusts of the marriage settlement. And the same result must ensue in this Court, where substance and not form is regarded, on the conveyance to Green by a deed recognizing the rights of Mrs. Heth and her children.
    We assume for the present, that the marriage settlement secures the rights of Mrs. Heth and her children. This being so, the equitable interest in the property must be in them. It did not pass to Green ; he was a mere naked trustee. It passed out of the executors, George C. and Robert Pickett; and it must have been passed therefore to Mrs. Heth and her children. If then this deed makes this property the property of the Heth family, the question is at an end. For the marriage settlement recorded is a notice to all the world of the rights of the children in the property.
    The power reserved to Pickett and Beverly Heth to direct Green how and to whom to convey the property was not intended, and was not to be used to the detriment of John Heth and his wife ; and therefore did not diminish their title and estate. It is impossible to hold that the power was intended for the benefit of Pickett and Beverly Heth. It must therefore have been intended for the benefit of John Heth and wife. Their authority was not an equity but a mere power : and in the exercise of a mere power over the property of another, the interest of the person entitled is to be secured.
    We have already argued to shew, that the idea that the property in question was not conveyed to vest in Heth and wife any permanent estate, but only as a means to collect the legacy, is unfounded in fact and wholly inconsistent with the tenor and effect of the deed. But suppose this was true. It follows, that any disposition of the property in which this object is wholly disregarded, is a nullity. The power on this hypothesis is to raise money; but it was not used to raise money; for, by the terms of the deed to John Heth, it was ail exchange of property, and not a sale for money; which in fact and in law are distinct, and in cases like the present, are not substitutional of each other. Gibson v. Jones, 5 Leigh 370; Tate’s Dig. 175, note s; Earl Winchelsea v. Norcliffe, 1 Vern. R. 435; Awdley v. Awdley, 2 Id. 192.
    The argument will be urged on the other side, that the marriage settlement between John Heth and his wife cannot aifect the appellees, because of its uncertainty in description, whereby it was not notice to a purchaser for value. But it is obvious that the parties to the deed of March 4th, 1833, had the marriage settlement in their minds; and that they thought the property must be conveyed according to that settlement. Here, then, is a case in which land is not mentioned, and therefore not described so as to affect a purchaser with notice. But the legacy is mentioned ; the deed is therefore notice of that and will protect it from John Heth's creditors. This legacy is paid not in money, but in land, and the deed of March 4th, 1833, shews this on its face ; and thus connects it with the marriage settlement, so that the marriage settlement protects the land as fully as it protected the legacy.
    We have thus far considered the case on the deed of March the 4th, 1833. We will now consider the effect of the agreement of the 11th of August 1832. There can be no doubt that there was such a contract; and there is as little doubt that the whole of that contract, so far as it referred to John Heth and wife, is set out in the deed of the 4th of March 1833.
    If the agreement of August 1832 is sufficiently ascertained, and the deed of March 4th, 1833, is not according to the agreement, the deed will be corrected by it. The whole agreement is, that Mrs. Heth was to have seventeen twenty-fourths of the mansion house property for 8500 dollars of her legacy. There could be nothing more. The case of Cordwell v. Mackrill, 2 Eden’s R. 344, shews that the Court will interpret the deed by the agreement. If the parties to the agreement were engaged in an honest purpose, they intended to give to Mrs. Heth her full interest in her legacy, under the marriage settlement; and they intended the appropriation of the seventeen twenty-fourths of the mansion house property to her full and undisturbed enjoyment. If they did not intend this, they were engaged in a fraudulent combination to injure her; and this Court will not aid their purpose. But, in fact, no fraud was intended, and the Court will not give a construction to the act which will produce the fraudulent effect.
    That there was a trust estate in this property, for the benefit of Mrs. Heth and her children, there can be no doubt. And the only question is, whether the legal title has been so disposed of as to relieve it of the trust. The act, Sup. Rev. Code, ch. 150, p. 208, directs how a sale of a trust estate shall be made. It was improper for a trustee to sell in any other mode, and all persons dealing with him must be subject to the consequences of his misconduct.
    Various grounds of defence have been taken by the appellees. First, it is said that Mrs. Heth having joined in the deed to the Railroad Company, any title which she had to the property passed by that deed. This defence assumes that Mrs. Heth had a title to the property. The deed purports to convey the property of John Heth alone. Mrs. Heth united in it to pass her interest in his property; and her privy examination must have referred to his property and not to hers. Deeds operate according to their ostensible object. Hovenden on Frauds 107. The purchasers did not understand this deed as conveying any property but that of John Heth's, or as passing any interest of Mrs. Heth, except her interest in his property.
    
      Another ground of defence is, that Mrs. Heth has been guilty of some neglect or default, or omission which forbids the interposition of a Court of Equity in her behalf. And the special ground of complaint is, that she stood by and saw the Railroad Company expending their money in improving the property without giving them . . . n 0 . notice. A married woman is to interfere to arrest the improvement of property sold by her husband, in which she has an interest! If she signs a deed without privy examination it is void as to her. Must she, nevertheless, lose her right because she has not given notice to the purchasers ? But it cannot be objected to the infant appellants that they did not stop these improvements: and we refer to the cases before cited on the subject of indivisible trusts, to shew that where property is given to husband, wife and children, one cannot dissever his interest from the others.
    As to the defence of purchasers for value without notice, we have already attempted to shew that these appellees are affected with notice. The deeds shew the equity. Heth’s deed to the Company refers to the deed of Green to him: That refers to the deed of the 4th of March 1833: That shews that the property was taken as payment pro tanto, of Mrs. Heth’s legacy: And the marriage settlement, of which being recorded they are bound to have notice, informed them that the legacy was a trust subject for the benefit of the appellants.
    The last ground of defence is, that the Railroad Company is protected by its charter. The charter says the proprietor shall be regarded as owner of the whole foe simple estate. But who is the proprietor ? The act was not intended to legislate out of existence trust estates and equities. But in this case the Company did not proceed under its charter to condemn the land. They acquired their title by private contract. It must therefore be governed by the general rules of law, and cannot be affected by the charter.
    
      
      Robinson and Taylor, for the appellees.
    The deed
    of'the 4th of March 1833 having been executed by the executors of George Pickett and his widow, to whom the mansion house property had been devised for life, Passe(^ fh® whole legal title to that property to Thomas Green; and by its terms passed it free from the charge created by the will of George Pickett in favour of the w^ow an(l ^e legatees; indeed free from any pre-existing charge, lien, incumbrance, claim or demand of John Heth and his wife, or the trustee in their deed of marriage settlement. That estate was by this deed vested in Green upon the conditions and provisions expressed therein, and no others.
    What then is the position of the plaintiffs ? They argue that by the agreement recited in the deed of the 4th of March 1833, the legacy of Mrs. Heth ceased to be a legacy at large, and that it was paid pro tanto by the seventeen twenty-fourths of the mansion house property, which they say the trustee had no power to alienate. And yet the deed, under which alone they can claim this property, distinctly recognizes the power of alienation by the trustee, declaring in express terms that the mansion house property shall be conveyed in such manner and to such persons as George C. Pickett and Beverly Heth may require and direct. Now the rule is well established that a person shall not claim under an instrument without giving effect to it as far as he can. Thelusson v. Woodford, 13 Ves. R. 209; Birmingham v. Kerwan, 2 Sch. & Lef. 449.
    To avoid the influence of this rule, the counsel on the other side have to maintain that they do not claim under the deed of the 4th of March 1833, but that they resort to it merely for the proof of the agreement .of the 11th of August 1832 recited in it; and that they claim under the agreement.
    Suppose, for the sake of the argument, that they could take such a position consistently with the rule which forbids one to accept and reject the same instrument ,• still such a position will not serve them, unless the deed contains sufficient proof of the agreement on which they rely.
    There is no proof that the agreement of August 1832 was reduced to writing, or that it was partly executed. George C. Pickett being the executor, and also trustee in the marriage settlement, Mrs. Heth being a feme covert, and the children infants, there were no parties who could contract. And the agreement is not recited in full in the deed of the 4th of March 1833. For each and all of these reasons that agreement can afford no foundation for the claim of the appellants. Cordwell v. Mackrill, 2 Eden’s R. 344.
    In what way then did the seventeen twenty-fourths of the mansion house property become a part of the trust subject under the antenuptial deed ? It certainly was not conveyed by that deed ; for it conveyed no real estate ; the subject was altogether personal. How then has this personal subject become real ? The other side say that the deed contains no power to vary or transfer the trust; and they insist, that in the absence of such a power in the deed, the trustee cannot possess it. If this be so, by what process is it that they become entitled to the real estate in our possession ? They cannot consistently with their own doctrines acquire it under the agreement of August 1832; for that was to change the subject, and the cestuis que trust were not in a condition to consentj and we have already shewn that the agreement was inchoate merely, and conferred no rights; and indeed it could not have been enforced even in equity. Flight v. Bolland, 3 Cond. Eng. Ch. R. 675.
    Counsel are obliged to maintain the inconsistent positions that there is no power under the marriage settlement to change the trust subject, and yet that they are entitled to the benefit of the change.
    When Beverly Heth was substituted as trustee in the marriage settlement, he thereby became authorized to collect the legacy to Mrs. Heth. To hasten the collection, John Heth and wife were willing to unite in the deed of the 4th of March 1833; but neither they nor their trustee could have intended to retain these seventeen twenty-fourths of the mansion house property; and if they did intend it they certainly adopted a most irreguiar mode of executing the trust. The subject assigned by the deed of 1822 was a personal subject; and the deed gave no power of converting the personal into real estate. The power to the trustee was to collect the legacy by all lawful means. Under this power, if he could not in the first instance get money from the executors, he might take land. But this power to take land was merely incidental to the power to collect, and was to be exercised so as to promote the collection ; not so as to change the subject from personal into real estate: which it was not competent for the trustee to do. Earl of Winchelsea v. Norcliffe, 1 Vern. R. 435; Awdley v. Awdley, 2 Vern. R. 192; Taylor v. Philips, 2 Ves. sen. R. 23; Ex parte Philips, 19 Ves. R. 118.
    Whilst, therefore, it was competent to the trustee in this case to take land in part payment, and afterwards to sell it and invest the proceeds in other property producing an income, it would not have been regular to retain the land as a fixed subject stamped with the trust. And in this case it would have been as inexpedient to retain it as it would have been irregular. As it was but an undivided share in the property, and was subject to Mrs. Pickett's annuity of 500 dollars for her life, it could not, whilst she lived, have produced to the cestuis que trust a dollar of income.
    It was therefore proper for the trustee, at the time that he agreed to take the seventeen twenty-fourths of the mansion house property, as a part payment of Mrs. Heth's legacy, to look to a sale of it as speedily as a sale could be effected at a fair price. George C. Pickett was looking to a sale of his seven twenty-fourths. The trustee had no means of purchasing his interest, so as to vest the whole property in the trust fund; and John Heth, then a wealthy man, was willing to become the purchaser of both parcels : and therefore it was that the deed of the 4th of March 1833, provided that Green should convey as George C. Pickett and Beverly Heth should direct.
    Such being the provisions of the deed of the 4th of March 1833, the deed of the 5th of March was executed in strict conformity thereto; and the legal title in the mansion house property, which was before in Green, was fully vested in John Heth.
    
    About a year after John Heth had become the proprietor of the property, the act incorporating the Railroad Company was passed. That act authorized the company to enter upon the lands through which they might desire to conduct their road, and to lay out the same according to their pleasure; and if they could not agree with the owner of the land on the terms of purchase, then application was to be made to the Court of the county. The act provides that the proprietor of the land shall be considered as having the whole fee; and it directs that no injunction shall be awarded by any Judge to stay the proceedings of the company. Very similar powers were given to the James River and Kanawha Company, which were the subject of judicial interpretation in the case of the James River and Kanawha Co. v. Anderson, 12 Leigh 278: And it was there adjudged that the power existed to take property in the City of Richmond, which was not expressly exempted.
    Here the land in controversy lies contiguous to the road of the company, and has been entered on and laid out as a site for a depot and warehouse; and it does not exceed the proper quantity of ground. The company agreed for it with John Heth as the proprietor, and took from him, on the 23d of June 1834, a deed conveying to the company the whole fee simple interest for 15,000 dollars, which they paid to him: the last payment of 10,000 dollars, with interest, being made as late as June 1828. And they have entered on the land and applied ^ to the uses of the company. The company have ^uih expensive improvements upon it; and have held the exclusive use and enjoyment of the property from the year 1834 to the present time.
    Under the decision of this Court, in the James River and Kanawha Co. v. Anderson, no injunction could have been granted to these parties, if they had applied for it in 1834, to stay the proceedings of the Railroad Company. This is certainly so as to the garden lot ; and as to the dwelling-house, it was certainly John Heth’s during the life of Mrs. Pickett; and his consent had been obtained: and at that time the purchase money yet due from the company, would have given these plaintiffs their fund of 8500 dollars, or whatever the seventeen twenty-fourths of the property was worth; and the interposition of a Court of Equity to stop the proceedings of the company was therefore unnecessary. If, then, the plaintiffs would not have been heard in 1834, to prevent the company from entering on the land in question and prosecuting their works, is the proposition to be gravely maintained that the delay of the plaintiffs to assert their claim, operates to increase their rights ? And now, that the purchase money has been paid, so that the plaintiffs cannot have their 8500 dollars refunded from that source, are they to be entitled to take the property with all the improvements that the company have put upon it ? This cannot be so. And if in 1834, the plaintiffs could have had at most but a claim to be compensated in damages, they can have no higher claim now. If, according to the James River and Kanawha Co. v. Anderson, a Court of Equity could not then have interfered in their behalf, neither can it so interfere now. If, then, their claim to be compensated in damages, could only have been asserted before the tribunal and in the manner pointed out by the statute, it can be asserted in no other way now. And we submit, that the land in question having been taken and used by the Railroad Company for a purpose recognized by the statute to be a public purpose, the plaintiffs can in no aspect sustain the claim asserted by the bill, to be let into the possession and enjoyment of the property in question.
    The deed of the 5th of March 1833, states that George C. Pickett and Beverly Heth directed the mansion house property to be conveyed to John Heth, he agreeing to pay the annuity of 500 dollars to the widow. One of these was certainly the trustee of the plaintiffs, and they having given the directions, and Green having according to their directions conveyed the property to John Heth, the title before vested in Green by the deed of the 4th of March ’33, was completely passed to John Heth by the deed of the 5th of March ’33. The title thus passed was a complete legal title, without any charge except the annuity of 500 dollars to the widow. And John Heth and his wife, and the widow having conveyed to the Railroad Company, the Company has now a perfect legal title. On what ground is a Court of Equity asked to take from them the legal title ?
    If Beverly Heth, the trustee under the deed of the 14th of May 1822, had conveyed the trust subject to John Heth without any valuable consideration, then indeed both of them might have been held responsible for the breach of trust. But it is one thing to give relief against a grantee who was privy to the breach of trust and participated in it, and another and a very different thing to make a decree for this cause against a subsequent purchaser for valuable consideration without notice. And the right of a purchaser from John Heth to be protected is in no wise impaired by the fact that Heth may have had notice of the equity on which the claim is founded. We refer to Story’s Equ. Jur. p. 75, § 64, p. 184, § 165, p. 384, § 381, 409, 410, 434, 436; 2 Sugden on Vend. ch. 16, § 10, p. 259 to 263; Taylor v. Stone, 2 Munf. 314; Southall v. M’Keand, 1 Wash. 336; Donnell, &c. v. King’s heirs, &c., 7 Leigh 393; Wilcox v. Calloway, 1 Wash. 38.
    ¶¶¶ . _ * Here, then, are purchasers for valuable consideration, having paid the purchase money, and received the legal title, anq tjiey must therefore be entitled to the protection of a Court of Equity, unless it appears that before receiving their conveyance and paying the purchase money, they had notice of the fact on which the equity of the plaintiffs rests. Did they have such notice ?
    It is not pretended on the other side that the Railroad Company had actual notice of the fact that no valuable consideration had been given by John Heth for the trust subject. Their good faith is not questioned. But it is said they had constructive notice. We concede they had notice of the deed of the 5th of March 1833; but that does not prove that they had notice that no valuable consideration passed from John Heth to Beverly Heth the trustee. There was nothing in the deed to excite suspicion, but the reverse ; for it stated that property to the value of 8500 dollars had been transferred by John to Beverly Heth: and taking this statement to be true, every thing was honest and fair and legal and proper. It was proper for Beverly Heth to sell this unproductive real property; and it was equally proper for him to take for it and retain State stock, or bank stock, or other property deemed by him of equal value.
    It is said on the other side, that the trustee could not turn the land into money, so as to deprive the cestuis que trust of the right to elect between the land and the money for which it sold. An executor or assignee in bankruptcy, or any other fiduciary, has authority to collect a debt; and although the rule of law is, that generally an executor or trustee compounding a debt must answer for the amount of it, yet if the act of compounding appears to have been for the benefit of the trust estate, it is an excuse. 2 Wms. on Ex’ors 1109; Blue v. Marshall, 3 P. Wms. 381. If upon this principle the trustee is justified in taking land or other property in satisfaction of a debt pro tanto, it results, necessarily, that he may take it in such a way as will enable him to do as near as may be that which he would do with the debt if collected. If the trustee had received from the executors 8500 dollars in money, he would, looking to the objects of the trust, have sought to invest it in stocks or productive property of some kind from which an income would be derived. And this he certainly would have been authorized to do. Dover ex parte, 7 Cond. Eng. Ch. R. 512; Norbury v. Norbury, 4 Madd. R. 191.
    If the trustee, had he received the money from the executors, was not to keep it unproductive, but was to invest it in some productive property, it was proper for him, on taking land, to look to such an investment by a sale of the land; and if by a sale of the land, it cannot be a circumstance of the least importance that the investment was by an exchange of property.
    As there was nothing on the face of the deed, so there was nothing in the circumstances or character of the parties to induce a suspicion that the recital in the deed of the transfer of the property from John Heth to Beverly Heth was not true. They were both of them then men of wealth and high character. And it is not suspicion, not even a strong suspicion, which will authorize the Court to interfere with the legal rights of a purchaser. Flagg v. Mann, 2 Sumner’s R. 551; Hine v. Dodd, 2 Atk. R. 275. Nor will a want of the utmost circumspection have the same effect in fixing constructive notice upon a purchaser, as fraud or wilful neglect. Plumb v. Fluitt, 2 Anstr. R. 432; French v. The Loyall Company, 5 Leigh 627.
    It is not questioned by the counsel on the other side, that if the deed had recited that money had been received, the falsity of that recital could not affect a subsequent purchaser; yet it seems to be insisted that a recital of the receipt of property should not have satisfied him ; on the ground that property passes by deed. But tbe kind of property "which this trustee ought to have received, is not usually transferred by deed. Stocks, whether of the State or the banks, is transferred on the books of the department, or the bank. And even this is frequently not done fora length of time; the purchaser being satisfied with a power of attorney to transfer and the delivery of the scrip; and the transfer on the books is made when it is convenient. We submit that it is not proper upon such a ground as this to make a new head of constructive notice, especially when the Courts see that they have already gone too far in charging purchasers on the ground of such notice. We refer to Miles v. Langley, 4 Cond. Eng. Ch. R. 314; S. C. 13 Id. 198; White v. Wakefield, 10 Id. 116; 3 Sugden on Vend. p. 157, ch. 17, § 1, clause 15; Pierce v. Trigg, 10 Leigh 407, 430; Jones v. Powles, 3 Mylne & Keene 581; 10 Cond. Eng. Ch. R. 310. This last case illustrates very strongly the extent to which Courts of Equity will go for the protection of a purchaser who has the legal title. And the principle of that case fully sustains the. conclusion to be drawn from all the facts of this, facts shewing themselves on the face of the deeds, that there were no reasonable grounds of suspicion that the consideration had not passed from John Heth to Beverly.
    
    The cases in which constructive notice has been established resolve themselves into two classes; which are stated 1 Story’s Equ. Jur. p. 427, § 399 in the note. It is not pretended that the Railroad Company had actual notice that the plaintiffs had a claim upon the property ; and the facts of the case abundantly prove that the Company has not abstained from enquiry for the purpose of .avoiding notice. They held in their own hands the means of satisfying the plaintiffs for four years after the purchase from John Heth; and it was wholly immateterial to the company to whom they paid the purchase money. Both their interest and their duty would prompt them to pay it to the party really entitled to receive it.
    The conduct of the plaintiffs certainly does not entitle them to any extraordinary favour at the hands of the Court. They were silent for four years whilst the Company had the means of protecting themselves in their own hands. They have permitted them to proceed to erect their improvements upon the property without one word of warning; and Mrs. Heth herself united in the deed conveying the property to the Railroad Company. There is no principle on which Mrs. Heth, coming forward under such circumstances, can have her claim sustained by a Court of Equity. Having been privily examined as to her execution of the deed of the 23d of June 1834, that deed was as effectual to pass all her right, title and interest in the property in question as if she had been a feme sole. 1 Rev. Code, ch. 99, § 15, p. 366.
    It is no valid objection that the Railroad Company assumed to purchase the fee simple title of John Heth. They assumed to purchase particular lots in fee simple. The deed of Mr. and Mrs. Heth purports to convey these lots. That deed was explained to her by the justices; and knowing the purport of the deed, she, no more than he, or his heirs, can sustain a claim to any interest in the property.
    But here, besides the widow of John Heth, there are children who are plaintiffs; and they ask the estate to be conveyed for their benefit. Mrs. Heth being joined as plaintiff, and having no interest, the bill must be dismissed. 1 Dan. Ch. Pr. 348 to 350; Jacob v. Lucas, 17 Con. Eng. Ch. R. 436. In Dickenson v. Davis, 2 Leigh 401, and Hobbs v. Malone, 1 Rob. R. 346, the objection was only taken in the appellate Court; but here it was taken in the answer of the defendants.
    
      
      Patton, on the same side.
    I shall assume that the Railroad Company have a clear legal title to the property in controversy: and the question is with what equities is that title affected either by the marriage settlement of 1822, or by the agreement of August 1832, or the deed of March 4th, 1833.
    As to the deed of 1822, the Railroad Company is not to be affected by it; because they had no notice of it, either actual or constructive. The agreement of 1832, and the deed of the 4th of March 1833, were executed by both of the executors of George Pickett. The deed is not executed by George C. Pickett as trustee; nor is there in either of them any allusion to the marriage settlement. This agreement and deed were executed for the purpose of carrying into effect the trusts of George Pickett's will, not those of the marriage settlement. There is no notice in either of them, of Beverly Heth's appointment as trustee in the marriage settlement; but he is only spoken of as trustee of John Heth and wife. As such he executed the deeds of the 4th and 5th of March 1833. These deeds were also executed by Heth and wife; and they being his only cestuis que trust, he was authorized to convey as they directed. 10 Law Libr. 58.
    These being the facts, the Railroad Company had no reason to suspect from the agreement and subsequent deeds, that there was a marriage settlement; or that Beverly Heth was trustee of any body but John Heth and his wife: and they can only be held to have constructive notice of what their title papers shew.
    It is said the marriage settlement was recorded ; and therefore the Railroad Company was bound to have notice of it. But a purchaser of land is not bound to look to every deed that his vendor may have made conveying slaves and legacies. The purchasers from the executors are not affected by the trusts of Pickett's will: and then can the recording of a deed conveying slaves, debts and legacies be constructive notice to a purchaser of another subject. 1 Story’s Equ. Jur. § 401, shews that a purchaser is only held to have constructive notice where the subsequent deed conveys the same legal or equitable estate.
    The doctrine of notice by the operation of the registry acts was very much discussed in Doswell v. Buchanan's ex'ors, 3 Leigh 365. This decision has been very much doubted; but none of the Judges say any thing which impugns the doctrine as stated by Judge Story. The case, however, only decides that a party is to be affected with notice by the registry acts, where he takes a conveyance of the same subject conveyed by the recorded deed, from the same party. Suppose Gorge C. Pickett had, under the deed of 1822, received the money for the legacy, and had invested it in property, and then had sold the property, would the recorded deed be constructive notice to the purchaser? Murray v. Ballou, 1 John. Ch. R. 577.
    But suppose we had actual notice of the deed of 1822. In it there is no conveyance of any specific property. Then unless we had knowledge that it was intended the legacy from Mrs. Beth's father should pass by that deed, we might, acting in good faith, have taken a valid assignment of the legacy from John Heth. Mundy v. Vawter, 3 Gratt. 518. But we did not buy the legacy; we bought land conveyed by the parties having the title, for the purpose of paying the legacy, with the approbation of the only cestuis que trust known to us. If indeed we had not only had actual notice of the deed of 1822, but had known that the particular legacy was intended to pass by it, how would that notice have affected us in the purchase of the mansion house property ? That was the legal and proper means for paying the legacy. The other side have produced authorities to shew it was a breach of trust not to sell for the purpose of paying the legacy. If this be so, the deeds shew that the parties were doing what they were bound to do.
    We will next consider the effect and operation of the agreement of August 1832, and the deed of March 4th, 1833.' The agreement is only known from the deed. It does not appear that the agreement was executed in August 1832, so as to be binding on the parties, nor does it appear, but the contrary, that the whole agreement is set out in the deed. Arid if both these facts appeared, the appellants could only claim under the agreement, by shewing a variance between that and the deed. Each of these objections is fatal to the claim under the agreement. Cordwell v. Mackrill, 2 Eden’s R. 344.
    ■ The agreement of August 1832 was in its nature ineffectual to pass the title to the property. That was in the executors in trust under George Pickett’s will; and a deed was necessary to pass the title. The deed of the 4th of March 1833, was obviously intended to carry out the previous agreement, and must be taken, as that agreement is not fully set out, to be in conformity to it. We agree that if the agreement was in conformity with the deed, it was an executed agreement; and that the Railroad Company, having had notice of that deed, are bound by the trusts declared in it. We agree too, that Green was a trustee for all the purposes of that deed, and of the agreement of August 1832, so far as they are recited in the deed. That deed declares that John Heth and his wife shall have seventeen twenty-fourths of the mansion house for 8500 dollars of her legacy, and that this interest shall be conveyed by Green, as George C. Pickett and Beverly Heth shall direct. This is the trust declared in the deed; and the deed of the 5th of March 1833 shews upon its face that it was executed in pursuance and in direct compliance with the trust, by the direction of the trustee and the only beneficiaries of whom the Railroad Company had either actual or constructive notice.
    
      We have no objection to the general proposition that the cestui que trust may elect to take the original or substituted property. But where the trustee, under a misapprehension of his powers, has taken property, and afterwards finds that to carry out the scheme will be a breach of trust, and then he sells the land in pursuance of the trust, can it be maintained that in such a case the cestui que trust may claim the land in the hands of a bona fide purchaser ? An executor buys land under an execution to save a debt, and then sells it again; may the distributees claim the land? We refer to Field v. Schieffelin, 7 John. Ch. R. 150.
    It has been assumed on the other side, that a trustee has no power to change the securities. It is true as a general rule, that a trustee cannot change realty into personalty, or personalty into realty; but this rule must be taken with exceptions. The power depends upon the nature and character of the trust. The same books cited for the proposition tell us he will be liable unless he makes profits. Then if he receives money, what is he to do with it ? If he does not invest it he is liable j and if he invests it he is liable. But where it is for the' interest of the trust, the fund may be changed: and of that the trustee and not a purchaser from him is the judge. Saunders on Uses 246; Willis on Trusts, 10 Law Lib. 128.
    The kind of notice which will affect a bona fide purchaser for value is stated in Hardy v. Reeves, 5 Ves. R. 448, and Lewin on Trusts 11, 106, 182, 24 Law Libr. And unless a notice of a trust in a deed in one person is a notice of a trust in others not mentioned or referred to in it, it is impossible that the deed of March 4th, 1833, which only contains a trust in favour of John Heth and his wife, can be notice of a trust in favour of their children. And even if all the parties to this deed were informed of the deed of 1822, and intended to commit a fraud upon the children of Mrs. Heth, how does that affect a purchaser who has no notice either of the deed of 1822 or of the fraudulent intent.
    All the parties to the agreement of August 1832, say that the deed of the 4th of March 1833, is intended to cariT into effect the true intent of the agreement. This deed does not direct for what the house and lot shall be conveyed; but it is to be conveyed as George C. picket and Beverly Heth shall direct: And the deed of the 5th of March is according to their directions. If, then, the trustee Green has executed the trust according to the provisions of the deed, a bona fide purchaser cannot be responsible for the subsequent misconduct of the trustee. Graff v. Castleman, 5 Rand. 195. The argument on the other side is, that the trust was for the Heth family; but there is no such trust stated in the deed. And Mrs. Heth is bound by the deed of the 4th of March, if she is not bound by that of the 5th of March. That deed of the 4th of March conveys all her interest; and the deed of the 5th, recites that it was made by the direction of the trustee, and in pursuance of the previous understanding.
    The deed of the 4th of March is valid, or it is not. The cestuis que trust must claim the land by virtue of that deed, or they have none. The deed being out of the way, and the agreement along with it, as only known from it, the Heths have no specific lien upon the property. If the deed is valid, it extinguishes Mrs. Heth’s claim for 8500 dollars. It was given on terms and conditions which have been complied with; and she must take it as it was given. She cannot claim what the deed gives, except upon its terms. And her children can only claim as she does. ' If the deed is invalid, it is invalid for every purpose ; and then the claim to subject the specific property must be abandoned.
    
      Morson, for the appellants.
    1st. The provisions of the charter of the Railroad Company does not apply to the case. First, because the charter applies to injunctions, and this was not an injunction. Second, because the property in controversy was a mansion house, and was therefore especially excepted in the charter. Third, John Heth was neither in law or in fact the proprietor; but the equitable estate was in the whole Heth family, and could not be severed; and therefore the charter of the Company did not and could not constitutionally authorize the proceeding against him alone, and a payment to him alone, for the property.
    2d. The Court had jurisdiction of the case, because although the Railroad Company held the legal title, and a Court of Equity would not try the legal title to land, the appellants do not insist upon an adverse legal title; but they claim to have the whole equitable interest, and that the Railroad Company holds the legal title subject to the trust; and the whole question is trust aut non; which is the peculiar subject of equitable jurisdiction. 1 Story’s Equ. Jur. § 533, 651-59.
    3d. There was no misjoinder of parties. Mrs. Heth has not and could not part with her interest; this being an indivisible trust which could not be severed either by the act of the party or operation of law. Roanes v. Archer, 4 Leigh 550; Scott v. Gibbon, 5 Munf. 86; Hughes v. Pledge, 1 Leigh 443; Markham v. Guerrant, 4 Id. 279; Perkins v. Dickinson, 3 Gratt. 335; Mundy v. Vawter, Id. 518.
    4th. Green was a mere naked trustee, and certainly at the date of the deed of March the 4th, 1833, the equitable title to the property was in the Heth family; and the question is, whether this equitable title has been extinguished. Trustees are fiduciaries with limited powers ; and these are defined, limited and explained by the instrument which creates the trust. If the trust estate has been extinguished, it must have been within the granted powers, and the trustee must have exercised the power properly and formally. The deed of the 4th of March 1833 gave to Green no power to extinguish the trust. That deed recites that the property in dispute was agreed to be given for Mrs. Heth's legacy in part; and repeats again and again that Green was to carry into e®3Ct the agreement. At that time the deed of 1822 which vested all Mrs. Heth’s property in the Heth ... . family was on record.
    The deed of March the 4th, '33, is to be construed reddendo singulas singulis. Attending to this rule it will be seen that Green had no power to destroy the trust estate; and it is only by evading the rule that the other side have found this power. By that deed Green was made executor de facto of George Pickett, trustee in other respects, and was to proceed to sell the other estate and distribute it to the devisees. The provision that the purchasers from Green were not to see to the application of the purchase money, relates to that part of the estate which as executor de facto he was to sell ; and did not apply to the property which was to pass specifically to the parties, and which he had no power to sell: and a sale of that was a breach of trust, so stamped upon the face of the deed itself.
    ' But it is said that if Green had no power to divest the trust estate, George C. Pickett and Beverly Heth had. After George C. Pickett had as executor conveyed to Green, he had no power to direct how the seventeen twenty-fourths of the mansion house property should be conveyed. He was the owner of seven twenty-fourths; and the provision of the deed was intended to authorize him to direct the conveyance of that part of the property. This deed was made after the decree by which he was displaced, and Beverly Heth was substituted as trustee in his place, and when he certainly did not consider himself as trustee. Beverly Heth was to direct Green how to convey the seventeen twenty-fourths belonging to the Heth family: and however irregular his appointment, the appellees who claim under him cannot question it.
    
      It is asked what object there could be in conveying the property if it was not intended to be changed. The answer is obvious. John Heth was to take the profits for his life; then Mrs. Heth for her life; and at her death the property was to be divided among the children : and it was for the purpose of division that tho power to direct the mode of conveyance was given to Beverly Heth. This was a power to preserve and not to destroy the trust estate : and it is the only power to be found in the deed of the 4th of March 1833.
    Seeing then that there was no authority to destroy but only to preserve the trust estate, the case of Gibson v. Jones, 5 Leigh 370, is in point. That case shews that the trustee must pursue his authority strictly ; and a failure in a mere matter of form will prevent the passage of the trust estate. And this is the doctrine of all the cases down to the last case of Mundy v. Vawter, 3 Gratt. 518.
    If it was ever doubtful whether a trustee could destroy the trust, there can be none since the act on the subject of trusts. Sup. Rev. Code, ch. 250, p. 208. That act is declaratory of the law as it formerly stood, and is enactatory, prohibiting any exercise of doubtful powers by trustees, and providing for the mode of conveying trust property in such cases. The act declares all deeds in such cases made otherwise than according to its directions, void.
    The learned counsel meet the objection that the deed of the 4th of March 1833 did not give power to destroy the trusts in different modes. The two first went back to the marriage settlement; the last contended that the Railroad Company had no notice of the marriage settlement, and that the deed of the 4th of March made new cestuis que trust; and that these cestuis que trust John Heth and his wife conveyed to the Railroad Company. The first say that the legacy to Mrs. Heth was a personal subject; and whether it was proper or improper in the trustee to vest it in land it was proper to sell out.
    It is agreed on all sides that a trustee has no power to convert the subject unless it is given by the power. But there is another principle, and that is, that where there is a wrongful investment of the trust subject by the trustee, the cestui que trust may elect which he will take. If, then, there was an implied power to invest the legacy in land there was no power to reinvest; and if there was no power to invest, still the cestuis que trust may elect which they will take; and the trustee could not divest the trust except to a purchaser for value without notice. Oliver v. Piatt, 3 Howard’s R. 333; Willis on Trustees 67, note w, 10 Law Libr. ; M’Reth v. Symmons, 15 Ves. R. 329; 2 Story’s Equ. Jur. § 1257-59. This doctrine does not depend upon the bona fides of the trustee, but upon principles of policy, to prevent the danger of loss to the trust fund.
    But the last counsel insists that under the deed of March 4th, 1833, we have new cestuis que trust, Heth and wife. If this were so, still the estate is one which cannot be changed without the assent of both. 1 Lo-max’s Dig. 479, referring to various authorities; Thornton v. Thornton, 3 Rand. 179. Here, then, is an estate which has survived to Mrs. Heth, unless she has destroyed it. It is said she has done this by joining in the deed of 1834 to the Railroad Company. Hovenden on Frauds, p. 107, shews that no person, though sui juris, is affected by his deed further than it purports to affect him. The deed of 1834 purports to convey John Heth’s estate, not the estate of Mrs. Heth, and no interest of hers except her right of dower in his property. Such is the English law, and a fortiori, in Virginia she can only pass what the deed purports to convey. Here the justices are to explain the deed to her, and this is essential to make her deed valid. It is therefore impossible that as to a feme covert her deed can pass what it does not purport to convey, and which it could not therefore be explained to her as conveying.
    The only further ground on which the Railroad Company can rest its defence is that they are bona fide purchasers without notice. We say the Railroad Company took with notice of the marriage settlement of 1822, first, by virtue of our registry acts, and second, by virtue of the rules of law independent of the Virginia registry acts. The English rule is stated, 2 Sugd. on Vend, p. 473-4 in margin, § 57. This passage cannot be tortured to mean any thing which will not demonstrate that the Railroad Company had notice. The deed to the Company refers expressly to the deed to John Heth, and that refers to the deed to Green; and each and both shews that Beverly Heth was a trustee. If he was a trustee, how and for what purposes was he appointed, were enquiries which lay directly in their path ; and the knowledge of the mode and purposes of his appointment would have resulted from them ; and they would have known both the existence and provisions of the antenuptial deed. Lomax’s Dig. 394, and the cases there cited; 1 Story’s Equ. Jur. § 400; 2 Danl. Ch. Pr. 779, and note.
    2. The antenuptial deed of 1822 having been recorded, was constructive notice. The rules in England and America are somewhat different on this point; and the distinction is stated, 1 Story’s Equ. Jur. § 403, note 2. He refers to Parkhurst v. Magruder, 1 John. Ch. R. 398. On this point the Court is referred to 2 Lomax’s Dig. 367; 1 Rev. Code, ch. 99, § 12; Beverley v. Ellis & Allan, 1 Rand. 102. It is admitted that no one could buy the legacy without notice; then when the deed of the 4th of March 1833, expressly substitutes the land for the legacy, and the Railroad Company had' notice of this, they must be bound by the first. The two are to be taken together and operate together as one deed.
   Cabell, P.

I am of opinion, that by the agreement of the 11th of August 1882, between the members of the family of George Pickett deceased, and by the deed of the 4th of March 1833, between the executors and devisees of the said George Pickett deceased, of the one c ' part, and Thomas Green of the other part, reciting and consurnmating that agreement, seventeen undivided twenty-fourth parts of what is called, in the said deed and agreement, the mansion house property, were dedicated to the satisfaction of 8500 dollars, part of a legacy of 12,000 dollars, which had been bequeathed by the said George Pickett deceased, to his daughter Margaret Pickett, and which, afterwards, but before the marriage of the said Margaret with the said John Heth, was, by an indenture made the 14th day of May in the year 1822, between the said Margaret Pickett of the first part, the said John Heth of the second part, and George C. Pickett, then of the City of Richmond, of the third part, duly conveyed to the said George C. Pickett, in trust, for certain uses and trusts in the said deed expressed and declared, as by the said deed recorded in the Court of Hustings of the City of Richmond, and made a part of the record in this case, reference being thereto had, will fully appear.

I am farther of opinion, that the said seventeen undivided twenty-fourth parts of the said mansion house property, having been dedicated as aforesaid, to the satisfaction of 8500 dollars of the legacy aforesaid, the said seventeen undivided twenty-fourth parts of the said mansion house property, became, thereby, subject to the same uses and trusts as are expressed and declared in the said indenture of the 14th day of May 1822, of and concerning the legacy aforesaid.

I am farther of opinion, that all persons purchasing the said seventeen undivided twenty-fourths of the said mansion house property, and having notice, at the time of their purchase of the same, of the uses and trusts to which they were subject, must be regarded, in a Court of Equity, as still holding the same, subject to the said uses and trusts.

I am farther of opinion, that the title deeds of the appellees, necessarily led them to the knowledge of the situation of the property. The deed to them from John Heth, under which they claim title to the property, refers to the deed from Thomas Green, conveying the property to the said Heth; and this last deed refers to the deed of the 4th of March 1833, from the executors and devisees of George Pickett dec’d, to the said Thomas Green, which clearly shews that the property aforesaid had been dedicated to the payment of Mrs. Heth’s legacy as aforesaid: and then the deed aforesaid of the 14th May 1822, (which, having been recorded according to the requisitions of our registry laws, the appellees were bound to notice, and are presumed to have noticed,) pointed, directly, to the uses and trusts to which the property aforesaid became subject, in consequence of its dedication as aforesaid. The appellees must, therefore, be regarded as purchasers with notice. They can claim no exemption therefrom, on the ground of the allegation in the said deed of the 4th March 1833, namely, that it was “ well understood that the mansion house property shall be conveyed in such manner and to such persou or persons as the said George C. Pickett, and the said Beverly Jleth, as trustee aforesaid, may require and direct.” The said Pickett was not a party to the said deed, as trustee, but only in his own right, and as acting executor, and one of the surviving devisees and legatees in trust, of and under the last will and testament of his father. He had become entitled, in his own right, under the agreement of the 11th of August 1832, and the deed of the 4th of March 1833, to seven undivided twenty-fourth parts of the mansion house property, in payment of 3500 dollars, in part of the debt due to him from his father’s estate: and, by the same deed, the said Beverly Heth, who had been substituted as trustee under the deed of the 14th day of May 1822, in the place of the said George C. Pickett, had become entitled as trustee under that deed, to the remaining seventeen undivided twenty-fourths of the said mansion house property. The clause in the said deed of the 4th of March 1883, containing the allegation aforesaid, had reference to these respective interests; and the true construction thereof is, that the seven undivided twenty-fourths of the mansion house property should be conveyed in such manner and to such person or persons as the said George C. Pickett should require and direct, and that the other seventeen undivided twenty-fourths of the said property should be conveyed in such manner and to such persons as the said Beverly Heth, as trustee, should require or direct. The legal title of all the said property had been vested in the said Thomas Green. He was not to hold it always. He was bound to convey it according to the intents and purposes of the deed of the 4th of March 1833; and the clause in question expresses only what was the manifest intent and meaning of other parts of the said deed, namely, that George C. Pickett was to have the right to control the disposition-of seven undivided twenty-fourths of the mansion house property, and that Beverly Heth, as trustee, was to control and direct the disposition of the residue. George C. Pickett had an unlimited power to dispose of his seven undivided twenty-fourths: but Beverly Heth could direct the disposition of the other seventeen twenty-fourths only as trustee, and according to and for the purposes of the trust reposed in him. If a different intention was secretly entertained by any of the parties to the deed of the 4th of March 1833, whether trustees or others, it was contrary to the rights and interests of the cestuis que trust under that deed; and the execution of such secret and improper intention ought not to be permitted to injure the said cestuis que trust. Admitting that Beverly Heth had been legally substituted as trustee, under the deed of the 14th of May 1822, in the room of George C. Pickett, and that he had the right and power to change the trust subject by substituting other property in its place, to be held by him subject to the same trusts, (points which I do not think it necessary to decide in this case,) yet he had no right to sell the said trust subject to John Heth for his own benefit, without such substitution of other property of equal value. It is true that the deed from Thomas Green to John Heth, does state that such substitution was made; but there is no proof thereof, and it is undoubted that none was in fact made. If, therefore, John Heth were the person against whom the present claim is preferred, it is clear that he would not be permitted to hold the seventeen undivided twenty-fourths of the mansion house property. The persons claiming under John Heth, with notice of the situation of the property, cannot stand, in a Court of Equity and good conscience, on more favoured ground than that which is occupied by the said Heth. Other property could not have been conveyed in trust, in substitution of the original trust subject, without some deed or assignment in writing. The appellees should have called for, such instrument, and should have satisfied themselves of its existence and of its contents. They did not do so, but trusted to a false declaration that such assignment in trust had been made. The consequences of their misplaced confidence ought to fall on them,selves, and not on innocent cestuis que trust.

Cabell, P. and Brooke and Daniel, J’s,

concurred in the following decree:

The Court is of opinion that the appellants were entitled to recover from the appellees seventeen undivided twenty-fourth parts of the mansion house property, in the proceedings mentioned, or adequate compensation therefor in money. But the Court is also of opinion that, under the particular circumstances of this case, it would be more equitable to decree to them compensation in money, if it can be procured within a reasonable time, rather than the land itself; and that the measure of that compensation should be the amount of principal money contracted to be paid by the appellees to the said John Heth for the said seventeen undivided twenty-fourths of the mansion house property, with legal interest thereon from the death of the said John Heth, till paid; which money, when paid, should be committed to a trustee to be appointed by the Chancellor, for the benefit of the appellants, according to the uses and trusts expressed and declared in the deed of the 14th of May 1822. But if the said money shall not be paid by the appellees, by the time appointed by the Chancellor for that purpose, then that a decree shall be entered up in favour of the appellants against the appellees for the land aforesaid, to be committed to a trustee for their benefit, according to the uses and trusts declared in the said deed last above mentioned.

The decree is therefore reversed with costs, and the cause is remanded to the Court of Chancery, to be proceeded in to a final decree, according to the principles above declared.

Allen and Baldwin, J’s dissented.  