
    *Pullen v. Mullen & Wife.
    December, 1841,
    Richmond.
    (Absent Brooke, J.)
    Conveyance of Land — Mistake in Quantity — Suit to Correct-Confession of Bill, — A bouse and lot conveyed to Mrs. M. and to ber offsprings; Mrs. M. and ber husband convey the same to a trustee and bis heirs, to secure a debt; the trustee advertises the land to be sold in pursuance of the deed, but thinking that Mrs. M. bad only a life estate, be proclaims that only an estate for ber life will be sold, and that interest is sold to 3?. but the trustee conveys the whole fee simple; eight years after, M. and wife file a bill against P. to correct the mistake; and this bill is taken pro confesso: Held, 1. as the bill was taken for confessed, immaterial to enquire whether parol evidence is admissible to prove the mistake of the trustee in selling only an estate for Mrs. M.’s life, and then conveying the whole fee; and 2. the mistake is to be corrected, by decreeing that P. shall reconvey to Mrs. M. the remainder in fee expectant on her own life.
    Iu February .1826, David Coyle conveyed, by a deed of gift, a house and lot in Fred-ericksburg “to Ann Curtis for the use and benefit of her the said Ann and her off-springs forever;” habendum “to the said Ann and her offsprings forever;” Ann Curtis married Ryland Mullen. And then, by deed dated the 4th May 1829, Mullen and wife conveyed the house and lot to John Chew and his heirs, upon trust to secure a debt of SO dollars to James Wilkins; providing that if Mullen should make default in paying 17 dollars and ten cents with interest &c. at the expiration of three months, and the sum of 32 dollars 70 cents with interest &c. at the expiration of five months, from the date of the deed, then Chew the trustee should, “after giving public notice of the same, sell at public sale for cash” the house and lot, and pay, first the expenses of the execution of the trust, then the debt and interest due to Wilkins, and the balance, if any, to Mullen and wife. Default having been *made, the trustee caused public notice to be given of the sale, in the manner usual in Fredericksburg, by sending round the town a- written advertisement of the sale on the auctioneer’s flag, with a bell; which advertisement referred to the deed of trust, and stated that the sale would be made of the house and lot on the premises, by Chew the trustee, in pursuance thereof. The sale was made on the 9th October 1829; and John Pullen became the purchaser at 105 dollars cash, which he immediately paid; whereupon the trustee, on the same day, convej-ed the house and lot to him in fee simple, referring- to the deed of Mullen and wife to him, which, as before stated, was a conveyance of the fee.
    In November 1837, Mullen .and wife exhibited a bill in chancery against Pullen and Chew, in the circuit superior court of Spotsylvania, stating that after, the execution of the deed of trust of May 1829, one Clarke offered them 350 dollars for the house and lot, if a good title to the same could be conveyed; upon which they consulted counsel, who, upon examining the deed from Coyle to the plaintiff Ann, advised that, as the property was thereby conveyed to her and her offsprings, instead of her heirs, a good title could not be made without a decree of a court of chancery. That, on the 9th October 1829, the debt secured by the deed of trust being unpaid, the trustee Chew sold the lot at public auction for cash; but .acting under the impression that the plaintiff Ann was only entitled, by the deed from Coyle, to a life estate in the lot, he sold the property for her life only; and being thus sold, it produced only 105 dollars. That sum was indeed less than the value of the property for the life of the plaintiff: the lot was sold without any previous advertisement in- the newspapers; and if any notice of the sale was given, it must have been very short, since the debt became due on the 4th October, and the sale was made on the 9th of the same month. That Pullen was the purchaser at the trustee’s sale; and the ^plaintiffs had recently heard with surprise, that though he had bought the lot for the life of the female plaintiff only, he claimed the absolute fee simple, and contended, that it had been so conveyed to him by the trustee; upon which, having caused an examination to be made of the trustee’s deed, they found that that deed did in fact convey to Pullen the absolute fee, without any restriction of the estate to the life of the female plaintiff according to the declared aid known conditions and terms of the sale actually made. That this difference between the subject sold, and the subject conveyed, by the trustee, arose from his mistake or oversight; the trustee, being of opinion that the female plaintiff was entitled only to a life estate, inferred that her deed to him and his deed to Pullen would convey no more than she had a right to convey. That it was, however, certain, that only an estate for the life of the female plaintiff was sold to Pullen; the trustee Chew, and the auctioneer Buck, both so declared; and the plaintiffs were now advised, that the deed of Cole gave the female plaintiff clear estate in fee simple, and that such a particular estate having been sold by the trustee for more than enough to satisfy her husband’s debt, the reversionary inter-, est, in equity at least, remained in her, and she was entitled to have the sale set aside, or the reversion reconveyed to her. And that the plaintiffs, acting under the advice of their counsel, caused a deed, to be prepared, whereby Pullen might convey the reversion back to them, which they presented to him for execution, but he refused to execute the same; he persisted in his claim of the absolute fee simple. Therefore, Mullen and wife prayed that the sale might be set aside and annulled, and an account taken of rents and profits since the sale; or, that Pullen might be decreed to convey to the female plaintiff and her heirs, the remainder in fee expectant on her life; and general relief.
    *No answer was filed in the cause, and the bill was taken pro confesso. The depositions of Buck the auctioneer, of Chew the trustee, and of a Mr. Caldwell, proved all the allegations of the bill (except only, that counsel .had advised that Mrs. Mullen had not the fee simple) . and especially, that only an estate for the life of Mrs. Mullen was sold. Caldwell was of opinion, that the fee simple would have sold for double the price for which the life estate was sold to Pullen.
    The court decreed, that the sale made by the trustee to Pullen should be set aside; and directed an account of rents and profits received by Pullen, and of the permanent improvements put by him on the lot since his purchase. And upon the coming in of the report, whereby it appeared, that the rents and profits exceeded the value of the permanent improvements by the sum of 110 dollars 95 cents, the court decreed, that upon Mullen and wife paying Pullen 53 dollars 95 cents (being the balance due of the purchase money he had paid in October 1829 with interest thereon, after deducting the net money he had received for rents and profits), Pullen should reconvey the house and lot to Mullen and wife; and, in case Mullen and wife should be unable or should fail to make or tender such payment, liberty was reserved to them, or to Pullen, to apply to the court for a sale of the property, in order that Pullen might receive the balance due to him, and Mullen and w.ife might receive their property..
    Pullen asked of this court an appeal from the decree; which was allowed.
    Patton, for the appellant.
    1. The suit was prematurely brought. The sale of the property for the life of Mrs. Mullen was confessedly made; and, as she is still alive, no injury is done to any body by Pullen’s holding the estate; nor will it be until after her death, that Pullen’s claim to the fee simple will intercept the just rights *of her heirs. Suppose (as the court below seems to have supposed) that Coyle’s deed to Mrs. Mullen and her off-springs, gave her and them an estate in common, still she cannot complain of this sale of Pullen, and her offsprings do not complain: they are not parties to the suit, and the court can give no decree touching their right or title. In truth, the only bill which she could have filed, was a bill to perpetuate testimony. But 2. if Mrs. Mullen had a right to come into equity, her relief should be limited to the correction of the mistake she complains of — the conveyance of the fee simple to Pullen, instead of an estate for her life, which was sold to him. Even in case of an executory cofltract, where a party sells more than he had a right to sell, if the purchaser insists on specific performance of the contract so far as the vendor is able to execute it, equity decrees it; Lord Eldon’s opinion in Mortlock v, Buller, 10 Ves. 314. Here, Mullen and wife conveyed a fee to Chew; Chew sold only an estate for Mrs. Mullen’s life to Pullen; but he conveyed him the fee simple, and surely the conveyance passes the estate for the life of Mrs. Mullen. Complete justice would have been done, by decreeing that Pullen should release the remainder in fee expectant on Mrs. Mullen’s life. 3. When Mullen and wife conveyed do Chew, they thought they had the fee, and therefore they conveyed the estate, to Chew and his heirs. The trustee did not sell the whole estate; he thought he had only an estate for Mrs. Mullen’s life, and he directed the auctioneer to make proclamation that an estate for life only was to be sold. But he had previously written or printed an advertisement, that the “house and lot” would be sold “in pursuance of a deed of trust.” Now, the advertisement is the proper evidence of the terms of the contract. I understand the rule of law to be well established, that written particulars of a sale will not be affected by parol declarations of the auctioneer made at the sale. The lord chancellor said so, in terms, in Buckmaster *v. Harrop, 13 Vess. 471, 473. In Higginson v. Clowes, IS Vess. S16, and Jenkinson v. Pepys (cited there, and in Townshend v. Stangroom, 6 Vess. 330), declarations of the auctioneer, merely explaining an ambiguity in the printed particulars, were rejected. Rich v. Jackson, 4 Bro. C. C. 514; Gunnis v. Erhart, 1 H. Blacks. 289. But suppose the mistake proved in this case; yet it is clear, that the trustee Chew intended to sell and convey the whole estate which was conveyed to him by the deed of •trust, though he thought it conveyed only Mrs. Mullen’s life estate. His deed, therefore, was written exactly as he intended to write it. The contract is completely executed. Our question is, whether such a mistake can be corrected by bill in equity? An executed contract cannot be varied by parol, any more than an executory one: the rule is a fortiori, in the case of the contract executed. In the case of a sale of land, if the' contract is executed, it cannot be rescinded in equity, except on the ground of fraud distinctly charged and proved. Thompson v. Jackson, 3 Rand. 504. The mistake committed by the trustee was an ignorance of law and not of fact, as to the extent of his rights; and this is certainly remediless in equity as well as at law; Brown v. Armistead, 6 Rand. 594; Mayor &c. v. Judah, 5 Leigh 305. I suppose, with the counsel for the appellees, that Mrs. Mullen had a fee simple, or that she took under the deed of Coyle a fee tail, which the statute for abolishing entails converted into a fee simple. But perhaps this is not so clear; Co. Litt. 20 a. b.
    Moncure, for the appellees.
    The deed from Coyle to Ann Curtis passed a fee simple to her. The deed gives the subject to her “for the use of herself and her off-springs forever;” habendum “to her and her offsprings forever.” The word “off-springs” is clearly a word of limitation, not a word of purchase; it is equivalent to the word “issue,” or the words “heirs of her body forever.” Then, the appel-lees are entitled to relief in this *case on the ground of mistake; which is a well settled, if not a well defined, head of equitable relief. The whole fee was conveyed by Mullen and wife to Chew the trustee; he sold only an estate for her life; but by some mistake, either of law or of fact, he conveyed not the life estate he had sold, but the whole fee, to Pullen. Of the' true state of facts, there is no doubt. Parol evidence is admissible -to prove mistakes in written instruments; and “if strong and irrefragable” (to use lord Thurlow’s word in Shelburne v. Inchiquin, 1 Bro. C. C. 341,)-it is sufficient of itself to justify the court in correcting the mis- . take or setting aside the contract. In Baker v. Pain, 1 Vess. 456, Lord Hardwicke said, “How can a mistake in an agreement be proved but by parol evidence? It is not used to contradict the face of the instrument, but to prove a mistake therein.” The following authorities not only establish the general proposition that parol evidence is admissible and may be sufficient in such cases, but are also peculiarly applicable to the present case; Gillespie v. Moon, 2 Johns. Ch. Rep. 585; De Reimer v. Cantillion, 4 Id. 85; Thomas v. Davis, 1 Dick. 301. The cases on this question exhibit some conflict and contrariety, owing to various causes: many of those in which parol evidence has been excluded, are cases under the statute of frauds, or for specific performance, or where the effect of admitting the evidence would be to contradict or vary a written agreement, not to establish an equity dehors the instrument. It is said, that the mistake in this case, if any, was a mistake of law and not of fact. It was a mistake about title, which was compounded of law and fact. If the mistake had been in the agreement, it might be necessary to enquire whether it was a mistake of law or of fact; but here, the mistake was not in the agreement, but in the deed which was made to carry the agreement into execution. The distinction is established by the best authority. In Hunt v. Rousmaniere’s *adm’r, 1 Peters 13, it is laid down as incontrovertible, that “where an instrument is drawn and executed which professes or is intended to carry into execution an agreement, whether by writing or by parol, previously entered into, but which by mistake of the draftsman, either as to fact or law, does not fulfil, or which violates, the manifest intention of the parties to the agreement, equity will correct the mistake, so as to produce a conformity of the instrument to the agreement.” See also Brown & ux. v. Bonner, 8 Leigh 1. If the deed of Chew to Pullen was a valid conveyance to the extent of the life estate of Mrs. Mullen which was sold, still the suit was not prematurely brought. Mullen and wife were entitled to have the remainder in fee released to them. The mistake is the ground of the suit; and so soon as that was committed, a right accrued to them to have it corrected. The equitable title is in Mrs. Mullen; the naked legal title in Pullen, to whom it was conveyed by mistake. The holder of the equity may at once pursue the legal title. Though not an estate in possession, it is a vested and valuable right, of which the owner may make present use, and of which therefore she should not be deprived. But here, the sale was made by a trustee, and under the circumstances was absolutely void. The doctrine of caveat emptor applies in full force to a purchaser under a deed of trust: he must take care, that the provisions of the deed have been strictly pursued, and the sale fairly made. Quarles v. Lacy, 4 Munf. 251; Lane v. Tidball, Gilm. 130; Gay v. Hancock, 1 Rand. 72; Chowning v. Cox, Id. 306; Gibson’s heirs v. Jones, 5 Leigh 370. Now, 1. this sale was made on insufficient notice. The deed required public notice. The notice was not advertised in a newspaper of Fredericksburg, but only by sending a notice through the town on the day of sale; and the sale was made within four or five days after the default of payment. Yet the sale was of real estate *and for cash. The sale was of the property of a wife to pay the debt of her husband; a circumstance, which required longer and more public notice to prevent the sacrifice, which, as might have been expected, resulted from the sale. 2. The deed conveyed the whole fee simple, but the trustee sold only an estate for the life of Mrs. Mullen. If the trustee had a right to sell less than the fee simple, there might have been some semblance of propriety in selling the estate for the life of the husband who owed the debt; or he might have rented out the property for three years, which would have discharged the debt. Indeed, the sale of the estate for the wife’s life was so obviously improper and unjust, that it would never have been made but for the mistake of the trustee as to the quantity of estate conveyed to him, 3. If the trustee sold the estate as a life estate of Mrs. Mullen, and yet conveyed, and intended to convey, the whole estate vested in him, whether the absolute fee or the life estate, this was plainly a breach of trust; for if there was a doubt, it was the duty of the trustee to resort to a court of equity to clear it away. The effect of the breaches of trust, is to avoid the sale; Taylor v. King, 6 Munf. 358; Denning v. Smith, 3 Johns. Ch. Rep. 332; Gibson’s heirs v. Jones & ux., 5 Leigh 370. It is true, that Mullen and wife offered to take a release of the remainder in fee; which, however, Pullen, who had purchased only an estate for Mrs. Mullen’s life, refused to accede to. They would have preferred that to a long and expensive litigation ; and Pullen by refusing to release the remainder, when he knew he had purchased only the life estate, was guilty of a fraud, whereby he deprived himself of all claim to favour, which might otherwise have been extended to him by a court of equity, as an innocent purchaser. The prayer of the bill is in the alternative — for a cancellation of the sale — or for a release of the remainder — or for general relief; and, even if there had been no prayer for a cancellation *of the sale, the court might have decreed it under the prayer for general relief. Bailey v. Burton, 8 Wend. 339. By the cancellation of the sale, Pullen loses nothing but a speculation ; for in the account which has been taken, all his payments, and all his expenditures, have been allowed.
    Patton, in reply.
    There was no breach of trust. If the trustee sold the absolute fee, he acted in strict conformity with the deed of trust which conveyed the fee; and this is what I say he did. If he sold, and intended to sell, an estate for Mrs. Mullen’s life, he did so under a belief that her deed conveyed no more to him. How can a breach of trust be imputed to him? If he mistook the extent of the estate vested in him, and sold less than he might have sold, and paid the debt, what right have Mullen and wife to complain, that this misapprehension, resulting to their benefit, was a breach of trust? The appellees’ counsel complains, that it was a breach of trust not to have sold the whole fee simple; and then, that it was a breach of trust, to sell more than there was any necessity to sell to pay the debt. The life estate is not alleged or proved to have been worth more than Pullen gave for it: and it paid the debt, and left a surplus of 30 dollars, which Mullen and wife received without objection to the sale, and kept for eight years without any complaint. There is, then, no ground to impute breach of trust, or abuse of trust, to the trustee. The utmost relief to which Mullen and wife can be entitled, is to a conveyance of the remainder in fee expectant on Mrs. Mullen’s life; so as to give Pullen that which he really bought, and no more. I contend, however, that the mistake is one which equity cannot relieve.
   PER CURIAM.

It is expressly charged in the bill, that at the sale made by the trustee, he sold, and the appellant purchased, the life estate only of the female appellee; *and the appellant, by failing to answer and permitting the bill to be taken for confessed, has admitted the truth of these allegations: such admission dispenses with the enquiry, whether it would have been competent to introduce parol evidence to prove a mistake made in the deed of the trustee, conveying the whole estate, instead of an estate for the life of Mrs. Mullen. It was not premature in the appellees to apply to a court of equity to correct this mistake, and to procure a recon-veyance from the appellant of all interest vested in him by the deed from the trustee beyond the life estate. But after the lapse of time which has intervened between the sale and the institution of this suit, during which period the appellant has held possession, and made valuable improvements, without any objection or complaint on the part of the appellees that the trustee had proceeded irregularly or transcended his authority, it is now too late to disturb the sale, on account of any such supposed irregularity or want of authority; and the court should have done no more than correct the mistake b3' directing a reconveyance from the appellant to Mrs. Mullen, of all interest vested in him by the deed from the trustee beyond her life estate. Therefore, the decree is erroneous, and is reversed with costs.

And this court proceeding- to pronounce such decree as the circuit superior court ought to have pronounced, it. is decreed and ordered, that the appellant do, by a proper conveyance duly executed and acknowledged, release and convey to Mrs. Mullen all interest in the house and lot in the pro.c.eedings mentioned, vested in him by the deed of the trustee, beyond the life estate of Mrs. Mullen, and also that the.said appellant do pay unto the appellees their costs by them about their suit in the circuit superior court expended.  