
    Claiborne vs. Crockett.
    Chancery. Practice — Writs of error and supersedeas operate fromfiat for. Under the act of 1811, c 82, $ 72, a cause determined in the chancery court is in tlie supreme court from the date of a judge’s fiat for a writ of error and su-persedeas, although neither of them are served upon the clerk and master of the Chancery court. St. 3 James 1, c. 85 Sampson vs. Brown, 2 East, 439.
    SAME. Effect of fiat onprocecdings below. Asale of land made by the clerk and master of the chancery court, under a decree of that court, after the allowance of a writ of error to, and supersedeas of the decree, is without authority and void.
    SAMF. Mode of changing title in equity. Queer e, whether, since the act of 1801, c 6, § 48, the mere direction in a decree to the clerk and master to make a deed, and his deed made in conformity thereto, will divest the title out of the person against whom the decree is made, and vest it in the purchaser at the master’s sale'.*
    SAME. Conveyance — Deed under power of attorney. When the parties in equity in their pleadings treat a title as vested in one of them by virtue of a deed made under a power of attorney, which is not exhibited in the pleadings, the court will take-jt for granted that the power was well proved for the purpose of authorising the conveyance.
    About the 6th of July, 1819, John Brooks sold to James G. Hicks 320 acres of land in Robertson county. Hicks executed four notes to Brooks for the purchase money, two of them for 500 dollars each, payable on the 1st of January, and 1st of May, 1820, — the other two for 1000 dollars each payable on the 1st of January, 1821 and 1822. Brooks ex? ecuted to Hicks his bond, conditioned to make a title to the land when the last payment should be made, and reserving a lien for the purchase money.
    On the 7th of December, 1820, Brooks assigned to William Crocket the above mentioned note of Hicks for one thousand dollars, which was payable on the 1st of January, 1821, and when it became due, Crocket sued Hicks upon it in Kentucky, where he had removed, and recovered adjudgment for the balance, about five hundred dollars, which Hicks had failed to pay.
    In the mean time, probably in the year 1820, Hicks had assigned Brooks’ title bond to Thomas Claiborne; and Brooks having become incapable of transacting his own business, made a power of attorney to his son, John S. Brooks, dated the 10th of February, 1821, giving him a general authority, it seems, to transact his business, including a power to sell and convey his real estate. Under this power, John S. Brooks on the 20th of August, 1821, made a deed of conveyance of the land to Claiborne, who took possession and held it till evicted in the manner hereinafter stated.
    Crockett having failed to collect the judgment which he had obtained against Hicks in Kentucky, filed his bill at the October Term, 1821, of the circuit court at Charlotte, against John Brooks, John S. Brooks, James G. Hicks, and Thomas Claiborne, to enforce the lien upon the land which he supposed himself to have as assignee of one of the notes given by Hicks for the purchase money.
    This cause was heard by Chancellor Anderson, on the 13th of June, 1828, in the chancery court at Charlotte, whither it had been transferred, and his Honor pronounced a decree to subject the land to the satisfaction of the complainant’s demand.
    The defendants presented a copy of the record to Judge Whyte, and on the 8th of December,' 1818, obtained his fiat for a writ of error and supersedeas, to the supreme court. There, at March Term, 1832, the chancellor’s decree was reversed. In the mean time, however, the chancery court proceeded to execute its decree, and on the 13th of December, 1828, the clerk and master sold the land to Samuel Crockett for 500 dollars, made report of' his sale, and it was confirmed at December Term, 1828; and on the 4th of February, 1829, conveyed the land to the purchaser by his official deed, under which Crocket immediately took possession, which he continued till the 6th of October, 1832, when Claiborne filed his bill in the chancery court at Charlotte, to remove the cloud brought upon his title by these proceedings in the chancery court, wherein he charged that he had had possession of the land more than seven'years under his deed from Brooks before it was sold by virtue of the decree of the chancery court; that the land was bought by Samuel Crockett at the master’s sale for William Crockett, who had since sold it to Wilson Crockett, all of whom he prayed might be made defendants to said bill; and praying further., that the proceedings of the chancery court after the granting of the writ of error, might be declared void, and that the title of the defendants might be divested out of them and vested in him, &e.
    February 1.
    February 7
    The bill was answered by the defendants, and from the pleadings, and documentary proofs, the case appeared as it is above stated. It was brought to hearing at September Term, 1837, of the chancery court at Charlotte, when the chancellor pronounced a decree annulling the master’s deed to the defendant Samuel Crockett, divesting the title out of the defendant and vesting it in complainant, and ordering the defendants to account for the rents from the date of the master’s deed in 1829.
    The defendants appealed in error.
    James Campbell & F. B. Fogg, for the complainant,
    said that the only question was, whether the proceedings in the chancery court were of any force or validity after the cause had been transferred to the supreme court? To show that they were not, they cited 2 Mad. Ch. 189; Herbert’s case, 3 P. Wms. 116; Act of 1794, c 1, § 69; 1 East, 661; 2 East, 444; Act of 1811, c 72, § 12.
    Cook, for the defendants.
    
      
       See the case, 6 Yer. 27; and see ante, Graham vs. McCampbell.
      
    
   Green, J.

delivered the opinion of the court.

A bill was filed by William Crockett, against Thomas Claiborne and others, in the circuit court of Robertson county, at the October Term, 1821, alledging that John Brooks had sold the tract of land in controversy to James G. Hicks, and had given his bond for the title, and that Hicks had executed his notes for the purchase money.

The bill alledged further, that Hicks had transferred the title bond to Claiborne, who had obtained a deed for the land, but that he knew at the time he received said deed,' that the purchase money had not been paid by Hicks.

The bill further alledged, that Brooks had assigned one of the notes executed by Hicks for the purchase money of the land to Crockett the complainant; that it remained unpaid; that "Hicks was insolvent, and that by virtue of said assignment the vendor’s lien was transferred to h.m; and he therefore prayed a decree, subjecting the land to sale in satisfaction of the said note, due from Hicks.

The cause was transferred from the circuit court of Robertson county, to the chancery court at Charlotte; and at the June Term, 1828, of that court, a decree was pronounced in favor of the complainant, ordering said land to be sold.

On the 8th day of December, 1828, a copy of the record was made out and presented to Judge Whyte, one of the Judges of the supreme court, with a petition for writs of error and supersedeas; and on the same day, the said writs were ordered by the Judge, the record filed with the clerk, and bond and security given as required by law. No writ of supersedeas was actually issued and served on the clerk and master of the chancery court, and he proceeded in execution of the decree, and sold the land on 13th December, 1828, to the defendant Samuel Crockett.

At the December Term, 1828, of the chancery court, the report of the sale by the clerk and master was confirmed by the court, and he was ordered to make a deed to the purchaser, which deed was executed on the 4th day of February, 1829. The cause was continued in the supreme court until 1832, when it was heard, and the decree of the chancery court was reversed and the bill dismissed.

The present bill is brought by Claiborne, to remove the cloud which, the proceedings of the chancery court create upon his title, and to divest out of defendants, all the title and interest acquired by them, by virtue of said proceedings.

We think that the cause was in this court on the 8th of December, 1828, and that the writ of error operated, by virtue of the fiat of the judge, as a supersedeas although no writ of supersedeas was served upon the clerk of the chancery court.

The act of 1811, c 72, § 12, provides that a writ of error prosecuted in the supreme court, “shall not operate as a supersedeas, unless the party suing out the same, shall first obtain from one of the judges of said court, an order for a supersedeas,” &c.

This is substantially the phraseology of the statute 3 Jac. 1, c 8, which Lord Ellenborough, in Sampson vs. Brown, 2 East, 439, says, rendered it unnecessary to sue out the su- persedeas; for that statute, said his lordship, says that “no execution shall be stayed upon or by any writ of error or supersedeas thereupon to be sued,” &c, unless, &c., which shows that a writ of error allowed, or a lorit of supersedeas, would have had the effect of staying execution.” See also Miller vs. Newbald, 1 East, 661.

If this be so, the sale of the land made by the clerk of the chancery court, on the 13th of December, five days after the writs of error and supersedeas had been allowed, was without authority and is void.

But if the clerk had possessed authority to make the sale on the 13th of December, no title was vested in the purchaser until the sale was confirmed by the court, and the deed was made. But the deed was not made until the 4th of February, 1829, after the session of this court, in which the case was pending, had commenced. Indeed it may be doubted whether the deed of the clerk and master could vest the legal title to the land in the bargainee. By the act of 1801, c 6, § 48, the court is authorised, by its decree, to divest the title out of the person against whom the decree may be made, without a conveyance from the party.

The practice before that act had been, to decree that the party having the legal title should make a deed as directed in the decree; but since that act, the practice is, to divest the right by the decree; and a copy of such decree must be registered, as the title of the party in favor of whom it is made. In this case, the decree does not purport to divest the title, but simply confirms the sale, and orders the clerk to make a deed. We do not say that a decree might not be expressed in such terms as to divest the title, and by virtue of the deed of the clerk, vest it in the purchaser; but it is extremely questionable whether the mere direction to the clerk to make a deed, would have that effect.

We think that upon any, or ail of these grounds, the defendants acquired no interest in the land in controversy, by reason of the sale and conveyance before mentioned.

2. But it is insisted that Claiborne has not the legal title to this land, and that before the court will decree, that in shall be rested in him, it ought to require, that he pay the purchase money which is yet unpaid.

If the fact were as the counsel in argument assumed it to be, and the proper parties were before the courtj the consequence for which he contended would certainly follow. But the defendant, William Crockett, in his bill in the original case, alledged that Claiborne bad the legal title vested in him, and as we have not the power of attorney before us, and cannot therefore tell whether it is well proved or not, we must take that admission and statement, for the purposes of this decree to be true.

In the view which we have taken of the case, we take from the defendants no title they may have; nor do we vest any in the complainant. So far, therefore, as the decree of the chancellor vests title in the complainant, it must be reversed; and a decree will be entered declaring the proceedings under the decree in the chancery court, after the 8th of December, 1828, to be void; and divesting out of defendant all right and title acquired by said proceedings, and directing an account for the profits, &c.  