
    
      Ferris Pell and wife et al. vs. executors of H. S. Ball et al.
    
    The distinction between judicial and administrative orders considered.
    A decree of the circuit court declaring that the court had no power to sell a party’s land, against his consent, for partition, held to be an administrative order, and subject to the control of the circuit court.
    The circuit court has the power to modify or rescind an administrative order, and it makes no difference by what judge the court is represented— whether the judge who made the former order or another.
    The jurisdiction of the Court of Chancery to sell lands for the purpose of partition, against the consent of a party, is not confined to the case of intestates’ estates.
    An appeal, it seems, does not suspend a decree.
    In pursuance of the decree of Chancellor Dunkin, made in this cause on the 17th July, 1843, (see Speers Eq. 520,) a writ of partition was issued by the complainants on the 24th January, 1844, to divide the land and negroes of Hugh Swinton Ball, deceased. On the 26th January, 1844, three of the commissioners made a return to the said writ of partition as follows :
    “We, William A. Carson, Robert W. Roper and John Harles-ton, three of the commissioners named in the annexed writ, do certify, that in obedience to the directions therein contained, we did this day go upon the land therein described, having been duly sworn faithfully to discharge our duty, (and notice having been given to Mrs. Amelia Ball, as administratrix of Elias O. Ball; deceased, and as guardian ad litem of Elias Nonus Ball, to Ferris Pell, to Albert Sumner, and to Augustus Taveau, to attend, if they would be present,) and in the presence of Olney Harleston, who appeared in ■ behalf of Mrs. Amelia Ball, of Thomas Waring, who appeared as guardian and on behalf of Elias Nonus Ball, of Ferris Pell, who appeared on behalf of Albert Sumner and Catharine Sumner his wife, and of Mary Ann Pell the wife of said Ferris Pell, and of Augustus Taveau, who appeared on behalf of his wife Martha Caroline Taveau, — ■ we did examine the same, and are of opinion that the said plantations, Mepshew, Pimlico and Kecklico, cannot be fairly and equally divided, and that an actual partition thereof would be injurious to one or more of the parties interested: whereupon we appraised the said property, and found the true-value thereof to be forty-five thousand eight hundred and ninety dollars. And we further certify, that we are of opinion that it will be most for the benefit of all parties interested, that the said plantations be sold together as a whole, at public auction, in pursuance of the Act of Assembly, for partition between the heirs.”
    “And inasmuch as it is not the desire of the parties to keep the negroes without the land, we recommend that the negroes belonging to said plantations be sold, for the purpose of distribution.”
    On the 29th January, 1844, the appeal, from a part of Chancellor Dunkin’s decree, was heard, and dismissed, and the cause refered back to the circuit court. (See appeal decree, Speers Eq. 532.)
    On the 7th February, 1844, the cause was heard in the circuit court, before Chancellor Johnson, when his honor pronounced the following decree :
    This case coming on to be heard upon the return of the commissioners in partition, and under the decree made by the Court of Appeals at the late sitting of the court, referring the case back ,to this court to make such order as may be necessary for a partition of the estate of the testator, Hugh Swinton Ball, by sale, ox otherwise, and to make such further order as may be necessary for the settlement of the estate : after hearing Mr. Petigru on the part of complainants, and Mr. DeSaussure and Mr. Memrninger on the part of Mr. and Mrs. Taveau, in favor of a sale, and Mr. Mazyck on the part of Mrs. Amelia Ball, as administratrix of Elias O. Ball, and as guardian ad litem of Elias Nonus Ball, against it: and it appearing that in case of a sale of the real estate, all parties concur in desiring that the negroes and personal estate be also-sold : upon considering the certificate of the commissioners in partition, that a division cannot be made of the plantations without materially impairing their value ; and that the testator himself is shewn to have been of the same opinion, by his will, whereby, in case of having one child, he has devised the whole estate to that child, but in case of his leaving more than one child, he has directed the whole of the said plantations, as well as his negroes, to be sold when the eldest child should come of age, or sooner, in the discretion of his executors, and the' money divided among his children : it is ordered and decreed, that the testator’s plantations, Pimlico, Mepshew, and Kecklico, be sold by Mr. Gray, one of the Masters of this court, in one lot, and that the negro slaves belonging to the said plantations, or employed thereon, be also sold by the said Master, in lots according to families. That in case of necessity, the whole, or a sufficient part of the entire proceeds, of said plantations and negroes, be invested for the purpose of raising, by the interest or dividends thereof, a sufficient sum for the payment of the testator’s debts,- if any, and subject thereto; that one-half of the purchase money of the real estate and of the negroes be invested, under the trusts of the testator’s will, to the use of Amelia Ball, administratrix of Elias O. Ball, until Elias Nonus Ball shall come of age; and afterwards to the use of the said Elias Nonus Ball, subject to the limitations contained in the testator’s will. That the other moiety of the proceeds of the negro slaves, and all the rest and residue of the personal estate, be applied to pay the legacy of Emma Elizabeth Ball, and provide for the annuity of Martha Caroline Taveau, in proportion to their several amounts: and that the other moiety of the proceeds of the real estate be divided into two equal shares, and one share paid and allotted to Mrs. Taveau, and the other share allotted to Mrs. Pell and Mrs. Sumner, to be equally divided between them.
    
      That the terms of sale be, for the land, one-fourth cash, one-fourth in one and two years, the residue in seven years, on bond and mortgage of the property, the interest payable annually. For the negroes, one-third cash, one-sixth in one year, and the residue in five years, secured by bond and mortgage of the property and personal security, the interest payable annually, — Mr. Taveau agreeing to take the bonds for the lands,.payable in one and two years, and Mr. Waring the bonds payable in seven and five years. And it is further ordered, that Thomas Waring, surviving executor of the said Hugh'Swinton Ball, do sell and convert into money the residue of the personal estate of the testator, and apply the same to the payment of the legacies, as above mentioned; and that Mr. Gray, one of the Masters of this court, do take an account of the debts of the testator, if any remain unpaid, and of the sums which have come to the hands of the executors, or either of them, or which may come to the hands of the surviving executor, in the execution of this order ; and of the sum to be invested for the annuity of Mrs. Taveau ; and of the amounts to be paid to the complainants ; and the mode in which the share of Mrs. Pell should be secured; and make his report to this court, and have leave to state any special matter.
    From this decree Mrs. Amelia Ball and her son Elias Nonus Ball appealed, on the following grounds :
    1st. That the court ought not to dispose of lands and negroes, the natural capital of the State, unless with the consent of the owner.
    2nd. That there is no great difficulty in dividing planting lands, and especially none in dividing negroes — and this appellant is ready to receive her share ; and it a future sale is desirable, she can have it done without any connection with the other parties to the suit.
    3d. Because there is nothing in the law, either in the return of the writ of partition, or otherwise, to render it necessary or proper that the property of herself or her child should be converted into bonds, instead of remaining in lands and negroes.
    4th. Because the former decree secures the specific property to appellant and her son, directing the same to be set off to them.
    On the 22d February, 1844, the following notice was served on the Master in Equity:
    “The Master in Equity, James W. Gray, Esquire, will please take notice, that as the decree in this case has been duly appealed from on behalf of Mrs. Amelia Ball and her son, Elias Nonus Ball, as regards the sale of their share of the real and personal esthte directed to be sold by the decree, he will suspend all operations under it until the decision of the Appeal Court.
    Benj. F. Hunt,
    
      Solicitor of Mrs. Amelia Ball and Elias N. Ball, her son.”
    
    Subsequently the following additional grounds of appeal from Chancellor Johnson’s decree were filed:
    Because the writ of partition issued and returned, was not in conformity with the former decrees in this case.
    Because the right of appeal is secured by the Constitution, and cannot be curtailed or impaired.
    Because the sale of an Infant’s real estate against his consent and that of his guardian, is a violation of the 2nd and 6th sections of the 9th article of the Constitution of this State.
    Because the decree of Chancellor Dunkin, of 17th of July, 1843, not having been appealed from, was the law of the case, and the Appeal Court could not set it aside .
    On the 1st March, 1844, the solicitor of Mrs. Ball and her son, moved the court, Chancellor Johnston presiding, for leave to enter the following order :
    “ On motion of B. F. Hunt, ordered, that a writ of partition issue, pursuant to the decree of the 17th July, 1843, to divide between the heirs at law of Hugh Swinton Ball, deceased, and Elias Nonus Ball, the plantation on Cooper river, described in the pleadings, so as to set off one moiety thereof to the said Elias Nonus Ball, to be held subject to the limitations and provisions of the will of the testator, and to divide the other moiety, so as to set off one half thereof to Mrs Taveau, and the other half, in equal proportions, to Mrs. Pell and Mrs. Sumner; and if the commissioners in partition shall be of opinion that the moiety cannot be fairly divided among the heirs at law of the said H. S. Ball, without manifest injury to the parties therein interested, then the said commissioners shall make a special return in relation to the said moiety, according to the form and terms prescribed by the provisions of the Act of the Assembly of 1791; and that James Ferguson and Dr. W. Moultrie be appointed commissioners on the part of E. N. Ball, and that-be appointed commissioners on the part of the heirs of H. S. Ball. It is further ordered, that the executor, under the direction of the commissioners, deliver to the administratrix of E. O. Ball, for herself aud Elias Nonus Ball, one moiety of the negroes, according to the decrees heretofore made.”
    The court refused the motion, and Mrs. Ball and her son appealed, on the ground that the order moved for was the proper order, according to the decree of Chancellor Dunkin, and the appeal decree, and shouldhave been granted accordingly.
    On the 2 March, 1844, on the report of one of the masters, and the petition of some of the parties interested, Chancellor Johnston filed the following decree :
    Mr. Gray, one of the Masters of this court, reports, that in obedience to the decree pronounced by Chancellor Johnson, in this cause, on 7th of February of the present year, he had advertised the sale of the land and negroes, directed to be sold by the said decree — but that he had been served with notice signed by Mr. Hunt, as solicitor for Mrs. Amelia Ball and Elias Nonus Ball, informing him that the said decree had been duly appealed from by these parties, “ as regards the sale of their share of the real and personal estate directed to be sold by the decree,” and requiring him “ to suspend all operations under it, until the decision of the Appeal Court.”
    Accompanying this report, is a petition of Mr. and Mrs. Pell, and Mr. and Mrs. Sumner, alleging that the master “ had advertised the property for sale, and all arrangements for a sale wére made, in consequence of which the property is so situated, that a great loss would accrue from postponing the salethat they are advised that the appeal taken does not suspend the execution of the order, and praying “ that Mr. Gray may be ordered to proceed with the sale.” Upon the authority of Riggs vs. Murray, (3 Johns. Oh. 160,) and 'the cases therein quoted, I take it to be pretty clear that an appeal does not suspend the execution of a decree — that until reversed, it operates as a full authority to the officers acting under it; and that, in fact, a special order is necessary to suspend it, which will only be granted by the court in the exercise of a sound discretion, with reference to circumstances. No application for a suspension having been made in this case, unless the notice to the master be regarded in that light, I have no ground for interfering, and must leave the decree to its full operation. I cannot consider the notice* to the officer, in the light of an application to the court. It is simply the veto of the parties, carrying no authority; for it cannot be admitted for a moment, that the administrative officers are to be directed in the course of their proceedings by any other rule than the judgments under which they act; and much less, that the will of a discontented party is to usurp, or to be substituted- in the place of, a solemn adjudication. If. I could regard the notice served in this case as an application to the court to suspend the decree, it furnishes me with no circumstances upon which my discretion is to be exercised. It is a mere annunciation of the ground that an appeal supersedes the decree ; and upon that I am compelled to differ with the counsel.
    At the same time, I must decline to give the order prayed for in the petition. The master has already all the authority I could give him — and if an appeal forms his obstacle to proceeding under it, an appeal from my order would be an equal obstacle.
    Although an appeal has not the effect to supersede the decree appealed from, the opposite parties do, generally, from considerations of prudence, suspend the proceedings under the judgment drawn in question. For although it be settled that an appeal has not the effect of a supersedeas, per se, yet as the right of appeal is an unquestionable right, they who proceed after one is taken, proceed under the risk of having their acts undone and set aside. But whether they will, or will not, desist, must depend on their discretion alone. They have an unquestionable right to act under the authority they have; the other party has as undoubted a right to proceed to set that authority aside. This is the view taken by Chancellor Kent; and it appears to be the only one which can reconcile his assertion of the right to execute a decree, while it remains unreversed, with the position taken by him, that this is no disparagement of the right of appeal.
    It has been argued in this case, that the decree appealed from is not the subject of appeal, being, as it is contended, merely a decision in execution of a previous decree of the Court of Appeals. Whether this is good ground for appeal, is a question for the Appeal Court, and not for this. It may be, that upon an application for an order to suspend proceedings, this court might more readily grant such an order, where, from a consideration of the points involved, it might be impressed with the conviction that the decision was doubtful. But in no other view that I can take, is it competent for the Circuit Court to enquire into the judgment drawn in question.
    If I could look into this matter, I should be at a loss to decide whether the decree of the 7th February is founded upon a correct construction of the decree of the Court of Appeals. I was confined to nay bed by severe indisposition, when the latter decree was made. The other members of that court, if this application had been made to any one of them, as I wished it should have been, would have been more able, from the opportunities possessed by them, to have stated what was in the mind of the court, than I am. I can judge only by the record ; and looking to this, I must say that a repeated perusal of the appeal decree, in connexion with that of Chancellor Dunkin, upon which it was made, has very much shaken the impression I took up at first, from the general terms employed by the Appeal Court.
    From so much of the decree of Chancellor Dunkin as decided, upon general grounds of law, that one moiety of the property specially devised, could not be sold for partition ; and that the special grounds taken were not sufficient to authorize it — and awarding a writ of partition, with special directions to the same effect — there was no appeal by any one of the parties, Elias Nonus Ball did not appeal, because his view was sustained, and the opposite party confined their appeal to three special and different grounds of objection. The decree was affirmed generally. The case was sent back, to make the orders necessary to be passed under this decree, and others which had been previously pronounced. The writ of partition awarded by Chancellor Dunkin was to be returnable to the Circuit Court, to be executed under his decree, as I would suppose, that decree having-been affirmed. It is true the Court of Appeals, in remanding the cause, directs the Circuit Court “ to make such orders as may be necessary and proper for effecting partition of the real estates, conformably to the decrees of the court, heretofore made, by sale or otherwise, as may be necessary.” It had already been decided that a sale of the whole was unnecessary and improper — ■ that one-half should not be sold, but allotted by actual division ; and that as to the other half which descended, the writ should go under the Act of 1791. The question then, is, whether the court, by delegating authority to the Circuit Court to effect partition “ by sale or otherwise,” intended to modify the decree which they affirmed generally, and that upon a point not appealed from, or whether the authority to sell was not intended to be restricted to that moiety which descended, and which, by the terms of the Act of 1791, might be partitioned by sale, or otherwise, according to the return of the commissioners. I think this a very questionable point.
    I must leave this matter with a mere expression of the opinion heretofore announced, that the appeal taken does not suspend the operation of the decree of the 7th of February last.
    From this decree Mrs. Ball and her son appealed, on the following grounds:
    1. That the Chancellor’s own reasoning is conclusive that the decree directing the sale of the infant’s property was illegal, and against a positive decree of the court.
    2. Because the right of appeal is a constitutional right, and cannot be impaired, and a decree appealed from is no decree on which execution can issue, as the right of appeal being a perfect right, carries with it the means necessary to render it effectual; and the sale and delivery of property to strangers, is inconsistent with the right of appeal.
    3. Because the universal practice under the constitution sanctions the forbearance to execute any decree, until affirmed, when duly appealed from.-
    4. Because a Court of Equity cannot deprive a citizen of his freehold, without trial by jury, especially where no title is set up in any other party before the court.
    On the 5th March, 1844, on the application of Mr. and Mrs. Taveau to suspend the order of Chancellor Johnson, of the 7th Febr’y, 1844, Chancellor Harper filed the following opinion :
    “It is ordered and decreed, that the testator’s plantations, Pim-lico, Mepshew, and Kecklico, be sold by Mr. Gray, one of the masters of this court, in one lot, and that the negro slaves belonging to the said plantations, or employed thereon, be also sold by the said master, in lots, according to families ; that in case of necessity, the whole, or a sufficient part, of the entire proceeds of said plantations and negroes, be invested, for the purpose of raising, by the interest or dividends thereon, a sufficient sum for the payment of the testator’s debts, if any, and subject thereto ; that one-half of the purchase money of the real estate, and of the negroes, be invested, under the trusts of the testator’s will, to the use of Amelia Ball, administratrix of Elias 0. Ball, until Elias Nonus Ball shall come of age, and afterwards to the use of the said Elias Nonus Ball, subject to the limitations contained in the testator’s will. That the other moiety of the proceeds of the negro slaves, and all the rest and residue of the personal estate, be applied to pay the legacy of Emma E. Ball, and provide for the annuity of Martha Caroline Taveau, in proportion to their several amounts; and that the other moiety of the proceeds of the real estate be divided into two equal shares, and one share paid and allotted to Mrs. Taveau, ard the other share allotted to Mrs. Pell and Mrs. Sumner, to be equally divided between them.
    That the terms of sale be, for the land one-fourth cash, one-fourth in one and two years, the residue in seven years, on bond and mortgage of the property, the interest payable annually ) for the negroes, one-third cash, one-sixth in one year, and the residue in five years, secured by bond and mortgage of the property and personal security, the interest payable annually ; Mr.' Ta-veau agreeing to take the bonds for the land, payable in one and two years, and Mr. Waring the bonds payable in five and seven years.
    And it is further ordered, that Thomas Waring, surviving executor of the said Hugh Swinton Ball, do sell and convert into money the residue of the personal estate of the testator, and apply the same to the payment of the legacies, as above mentioned ; and that Mr. Gray, one of the masters of this court, do take an account of the debts of the testator, if any remain unpaid, and of the sums which have come to the hands of the executors, or either of them, or which may come to the hands of the surviving executor in the execution of this order; and of the sum to be invested for the annuity of Mrs. Taveau ; and of the amount to be paid to the complainants ; and the mode in which the share of Mrs. Pell should be secured ; and make his report to this court, and have leave to state any special matter.”
    Mr. Gray advertised the property for sale, but on the 21st February Mr. Hunt gave the following notice of appeal:
    “ I am authorized and instructed by Mrs. Amelia Ball, on behalf of herself and her child, Elias Nonus Ball, to appeal from the decree for the sale of the lands and negroes, to which she and her son are entitled under the will of H. S. Ball, and on the following grounds :
    1. That the court ought not to dispose of land and negroes, the natural capital of the State, unless with the consent of the owner.
    2. That there is no real difficulty in dividing planting lands, and especially none in dividing negroes; and this appellant is ready to receive her share — and if a future sale is desirable, she can have it done without any connexion with the other parties to the suit.
    3. Because there is nothing in the case, either in the return of the writ of partition, or otherwise, to render it necessary or proper that the property of herself or her child should be converted into bonds, instead of remaining in lands and negroes.
    4. Because the former decree secures the specific property to appellant and her son, directing the same to be set of: to them.”
    In consequence of this appeal, Mr. Gray submitted a report to Chancellor Johnston, and asked his directions, whether the appeal was a Supersedeas. His Honor delivered an opinion, declaring that the appeal does not suspend the order.
    The Master, in these circumstances, has proceeded to make arrangements for the sale.
    This is an application, on the part of Mr. and Mrs. Taveau, to suspend the sale, on the ground that the sale will be injured by the pending appeal.
    I am of opinion that the Master is right in going on with the order of court. The appeal is no Supersedeas, as Chancellor Johnston has already shewn.
    Neither is the order of Chancellor Johnson the subject of appeal. The Court of Appeals referred the matter to his discretion, and his order is but the execution of what the Court of Appeals has directed. There is no ground of irreparable mischief disclosed by the affidavit, and it would be of evil example to countenance the opinion that a' mere notice of appeal could suspend an order sanctioned by the Court of Appeals.
    From this order Mrs. Ball and her son appealed, on the following grounds :
    Because Chancellor Johnson’s order was not in conformity with, and. in the execution of, any decree of the Appeal Court, but a new and substantive circuit decree.
    Because the right of appeal being secured by the Constitution, cannot be impeded or rendered ineffectual by any court or officers of court.
    In pursuance of the order of Chancellor Johnson of the 7th February, the land and negroes were sold, and on the 3d July, 1844, the report of Mr. Gray on the sales came before the court on exceptions taken in behalf of Mrs. A. Ball and her son. One of the exceptions was as follows:
    They except to the sale both of the lands and negroes, stock and provisions, as being a specific legacy.
    
      This exception was overruled, and the report of the Master was confirmed.
    Mrs. Ball and her son appealed, on the grounds :
    1. Because the exception should have been sustained.
    2. Because the sale, pending an appeal on the order of sale, was illegal and unauthorized.
    The cause now came on to be heard before this court.
    Hunt, for Elias Norms Ball.
    The points made by the minor child are:
    1st. That the prior decrees having settled and adjudged that he took one moiety of the lands and one moiety of the negroes as devisee, he was entitled to have the same set off to him specifically ; and being tenant in common with the heirs at law, who take the remaining moiety, he is entitled to a partition of the land and negroes into moieties, according to the well established laws of this court.
    2nd. That as to the moiety thus to be set off to the heirs at law, they can divide the same under the Act of 1791, where a specific provision is made, not extending to estates other than those specified in the Act.
    3d. That so the decree of Chancellor Dunkin had settled, directly, on the very question being heard on report of testimony, and this decree was not appealed from, and so became the law of the case.
    4th. That no writ of partition had been issued, and no return made in conformity to the said circuit decree, at the time the case, on other points, was heard before the appeal court, and the language of the appeal court being refered to the only matters before it, is clear, and not to be tortured into any other meaning than that the case was remanded to execute the decree of Chancellor Dunkin in regard to the partition.
    5th. That the circuit decree of Chancellor Johnson was a clear and direct reversal of the decree of Chancellor Dunkin on the point decreed, to wit, that the fee simple estate of a minor cannot be sold for partition, but that sale for the purposes of partition, is a new provision, confined to cases under the Act of 1791; and more especially in this case it was decreed that no sale was necessary, even if legal.
    6th. That the decree of Judge Johnson being duly appealed from, was superseded, and the sale pending the appeal was illegal and void, there being at that time no subsisting and operative decree.
    
      On the first point, he said it was clear that when once a court arrives at a conclusion, it is out of order to look behind the judgment in order to weaken its legal effect. All judgments when obtained are of equal obligation ; he therefore assumed that Elias Nonus Ball was seized in fee by devise of one moiety of the lands to be partitioned; and that the other moiety was distributable under the Act of 1791; and hence he concluded that the land was divisible into moities; and he contended that this court has no power to decree a sale for partition of land held in fee by devise or purchase, against the consent of the owner. A man cannot be compelled to change his investment and give up his fee simple against his will. It is only when he takes as distributee under the Act of 1791, that he is bound to submit to the mode of partition therein prescribed; which Act has never been held to affect any other estates in common. It is said that the practice has been to compel a sale for partition, and that long practice is equal to law, and especially that since the Act of —91, the equity of that Act has been extended to other than estates derived under that statute. In the first place, he denied the existence of the practice, never having heard of such a decree for at least a quarter of a century, and he believed no such practice does exist, but that the general acquiescence of parties in sales has led superficial observers to mistake the general consent of owners to sell for partition, for a general rule to compel them to sell against their consent.
    It seldom happens that men will insist on a specific partition of land, as most people are glad, in the abundance of land, to get the proceeds of sale, and purchase for themselves. Certain it is that no adjudicated case can be found in which this court has ever compelled one to sell his estate held in common for the mere end of making partition, neither has any Judge ever stated that as an admitted principle. It is not sound logic to contend that the mere absence of a decision is evidence of universal acquiescence, for it is equally evidence of universal belief that there was no ground to call for an adjudication. If it is plain law that one cannot compel a man to sell his lands to make partition, then we should not expect any one to make a case and call that law in question ; and so is the fact, — there is no such case. Let us then see what is the settled law in England, and the settled practice by which this court is bound, and then what is the law of South Carolina, and, as equity is bound to follow the law, what this court has authority to decide and rule. At common law joint tenants could not be compelled to make partition. It was the stat. 31 H. 8, C. 1, that first made provision in case of joint tenants for a writ de partitione fatienda, and this was extended by 32 H. 8, to lesser estates than those of inheritance. On these statutes there was a regular judgment, first, quod partitio fiat, &c. and on the return of the inquisition a second judgment, quod partitio firma, &c. in perpetuum tenea-tur. But in equity partition goes upon the conveyance to be executed, and as a general rule, if the parties are not competent to execute conveyances, partition could not be made, 1 Madd. Rep. 214. This species of partition is matter of right, 1 Yes. and B. 554 ; Amb. 589. Where the estate consists of several parcels, each need not be divided, but if one gets a parcel of greater value, then compensation is made, either by a sum of ■money or rent for owelty of partition, to those who have parts of least value. But if there is but one house it must be divided, however inconvenient, 8 Yes. 143; so one mill, an advowson, and the like, 1 Dick. 69 ; 2 Dick. 652 ; 11 Yes. 143 ; 1 Yes. 51. In all t-hese cases, however great the inconvenience, a partition must be made. If an advowson, every other presentment; if a mill, alternate tolls; see Amb. 589, 191; 1 Yes. and B. 554 ; 1 P. W. 446, 518; Co. Lit. 169, b. note. The statutes in 2 Stat. 474, are adopted, and 8 and 9 W. 3. C. 31, and 3 and 4 Anne, C. 18, define the mode and manner of partition.
    In 1748, 3 Stat. 708, we find the first law of this State on the subject. Let us examine this Act. It provides for a partition of land held in coparcenary, joint tenancy and tenancy in common, and directs an equal partition, either in entire tracts or in parcels, as they shall be of opinion will be most beneficial to the several parties, (fee. “and the return was to remain,” of record. This was a proceeding in the common pleas, and is still the law.
    Having already shewn that the Court of Chancery had no power to make a compulsory sale, he would now shew what the law is.
    The case Crompton and Wife vs. Ulmer, 2 N. and McCord, 429, settled two points; first, that the Act of 1791, ordering a sale for partition, is confined to cases of intestacy; second, that under' the Act of 1748, that court could not order a sale as a means of making partition; and this ought to be conclusive. The Act which so inauspiciously revived the power of an Equity Court to decide finally when it chooses, without an appeal, in order to slur over the obvious irregularity and danger of such a power, expressly provides that in all questions of law, as distinguished from equity, the Court of Chancery, shall follow the decisions of the court of law. Here is the law, and how strong it is to prevail against the spirit of innovation which is incident to all chancery jurisdiction, is seen by the fact that here is a clear explicit decision of the court of law, deciding in terms that the statute of 1791 does not apply to any but cases of intestacy, and that under the Act of 1748, a sale cannot be ordered, and yet the ground is taken that this case is within the “equity of the statute.” That is, the law is to be laughed to scorn, that the court may do as it pleases and evade the law.
    The words of the decision are, ‘-‘The Act of 1791 most clearly and conclusively relates to the distribution of the estates of intestates.” The Judge recites the Act, and says, “here, then, is the strongest and most explicit language which can be used, to shew that the Act relates to the distribution of the estates of intes-tates, and this is confirmed by every subsequent clause.” “This power, so given in this Act, can have relation to no other partition or distribution of property than that which arises under the Act.” Now, in this case, until the estate be divided into moieties, the Act of ’91 does not begin to operate, for E. N. Ball takes by devise.
    It is easy to account for the Act of 1791, for it placed personal and real estates on the same footing, and distributed them as if there was no difference between them, but left other real estate to the law as it stood. But it is pretended that “distributive share,” used in the Act of —91, by an equitable construction may mean the share of “a tenant in common.” So weak and shallow a pretence needs hardly be exposed ; “distributive,” is applicable only to shares to be distributed. But it is an abuse of terms to say the title of a tenant in common is to a distributive share. He is entitled to partition, not distribution. The perversion of this clear term shews what is meant by extending, “the equity of the statute.” Now, the court of law applies the true meaning, “because the words, distributive share, apply in legal understanding to that portion of an intestate’s estate to which one would be entitled, and not a bequest or devise, and in this view of the Act my brethren unanimously concur.” Here, then, the court of law unanimously concur in the opinion that “distributive share,” is a term which, so far from extending the equity of the statute, actually restricts and confines distributive shares to the Act of 1791. What are we to come to, when the very words which the court of law unanimously decide are restrictive, and confine the proceeding to the specific case of distributive estates under the Act, are, by the licentious interpretation of a Court of Equity, to be made an excuse for “extending the equity of the statute,” beyond what the Legislature have, intended by its clear enactments!
    It amounts to bold, naked usurpation, thus to decide contrary to the rule laid down by the courts of law, and thus violate the very letter as well as spirit of the Act creating a Court of Appeals in Equity. Let us pursue this question, what is the law ? and see if equity has followed the law.
    The next case at law is found in the same book, p. 593, Spann vs. Blocker. Here, although there was a default made, and a long period had elapsed, yet the court set aside'an' order by which the return of the commissioners recommending a sale to make partition was made the judgment of the court; and this, too, on the express ground that, as there was no allegation that the joint tenancy arose under the Act of 1791 for distributing the estates of intestates, the court had no power to order a sale, but only to make actual partition.
    In this case Justices Colcock, Nott, Richardson and Huger concurred, and it was the constitutional decision and exposition of the law, that law which equity is bound to follow, and yet we are told that universal practice is the other way. He believed the assertion wholly destitute of foundation, and that no lawyer living can cite a case in which' any court has ordered a sale of lands of inheritance, other than under the Act of -91, for making partition, against the consent of the tenant in common.
    That no such order has ever, before this case, been submitted, is clear. The case of Dinckle and Timrod, in 1784, see 1 Dess. 109, is relied on, but that was a case of consent and family arrangement. But what can be said to the case of House vs. Falconer, 4 Dess. 86, decided in 1810, where “the infants had six months after coming of age to shew cause against the decree,” even under the Act of -91 ? The equity of the statute, however, is claimed, to convey to the Court of Equity power not possessed by the court of law. This is but a form of words to cover a claim on the part of that court to make that law which they think ought to be law, but which the Legislative have not yet had the wisdom to enact. Does the equity of the statute also extend to the courts of law, or are they bound by the Act as it is written ? If so, then the Court of Equity has a power unknown to the law court, by which it can dispose of a man’s estate in a different way from a court of law, and unless two of the Chancellors desire it, the law court has no power to sit in appeal on such cases. By the constitution, the right of appeal is secured, and this cutting off appeals from equity, subjects suitors in that court to rules of decision unknown to the law. This is the very evil predicted from two Supreme Courts, guided by different rules of decision, in one State. At law, a man’s inheritance is sacred, it cannot be sold against his will. In equity, the equity of the statute rides over the rules of law, and he can be made to sell his land, purely to enable another to make a more advantageous sale of his land. Who urges the sale ? — not the tenant in fee by devise, but the distributees.
    The cases in which the equity of the statute has been extended to cases not within its letter, apply as well at law as in equity. Thus a law affecting executors is construed to appply to administrators, because they are also personal representatives. But here the law court has expressly denied the application of the Act of 1791, to other than intestates’ estates, and the “equity of the statute,” contended for, consists of a new clause to be introduced by the Court of Equity, against the express enactment that the Equity Appeal Court shall follow the rule of law, otherwise the ultimate decision would not have been entrusted to them. If the court had left the parties alter the decree to seek partition at law, no one pretends that the minor’s estate could be sold. It is, then, not the equity of the statute, but the far reaching power of an unlimited jurisdiction, called the Court of Equity, that is appealed to. This is not a case of construction, a case for two opinions; the law is settled; and he relied on the allegiance of the Judges to execute the law; and if the hasty ill considered orders that have been made, create difficulty, the open violation of the law will do more, it will shake the confidence of the public in the tribunal he addressed. He did not mean, of course, any imputation. There has been an error committed, expediency has ridden over right. This he averred, but all men are liable to error; “aliquando dormitat bonus Homerus.”
    But now, on solemn argument, it is time to be awake to the danger of innovating on the rights of property for mere convenience : and least of all, under a pretence of extending the equity of a statute beyond what the law extends it — for that is the true meaning of the term — it does not mean stretching a statute by the energies of a Court of Equity. Statutes are construed strictly or liberally, according to tbe subject matter, and remedial statutes are to embrace cases within the mischief. All that is admitted, but this construction is to be given by the courts of law. There is no extended equity of construction given to the Chancellor; if so, and there is no appeal from £he equity side of the Appeal Court, then there is to be one rule at law, and another in equity. He concluded, then, on this point, that by the law of the State a man may not be deprived of his freehold by a compulsory sale for partition ; and so the decree for a sale in invitum is unconstitutional^ and against the law of the land.
    He would now proceed to consider the next point. The decree of Chancellor Dunkin is direct and conclusive on this question, which was directly in issue before him; from this decree there was no appeal, and therefore it was not competent for the court of appeals to reverse the circuit decree. Was there a decree ? If not, the school-master is wanted — language has become incapable of conveying ideas. But let us see what Chancellor Dun-kin has said, which has been mistaken for a deciee. A reference was made to the master, Mr. Gray, who, after taking testimony, reported that it was expedient to sell the real estate of H. S. Ball, to make partition among his devisee E. N. Ball, and the heirs at law ; and this report came up for confirmation, and the Chancellor said : “ Both the complainants and the heirs at law unite in the desire, that the portion of the estate not effectually disposed of, should be forthwith brought to sale.” Then the Chancellor adds,'“It would present a much more embarrassing question, if the sale of this portion necessarily required a sale of the remaining moiety, which, it is seen, is devised in fee to E. N. Balland thus the point as to his fee simple came up ; and the Judge more than hints, that if such was the fact, none of the estate would be sold, for he adds, “ strong arguments might, with justice, be urged against thus breaking the entire plan of the testator. But no such necessity has been exhibited to the court.” Here, then, is a clear decision on the point, thus followed out. “The testimony reported by the master, has been carefully considered.” The Judge then decides, that on the evidence, a sale is not necessary to a partition ; and proceeds to the legal question, whether, “for the mere purpose of partition, this court has authority, in the case presented, to direct a sale of the entire premises, against the desire of one of the parties.” Here the legal position is stated, and the Chancellor lays down, that in England no such sale has been ordered, and concludes, “ neither this court or the Court of Common Pleas have any authority to direct a sale of the entire premises for the purposes of partition, but as derived from the provisions of the Act of 1791 and he recognized the decisions at law, that sales are confined to cases of intestacy, quoting the cases of Cromp-ton and Ulmer, and Spann and Blocker. Is not this a decree, that equity cannot direct a sale for partition, except under the Act of 1791 ? If not, what does all this mean ?
    The court then adverts to the well known case, in which the court changes a minor’s estate for his own advantage, and properly remarks on the distinction. It is not in invitum, but solely for the benefit of the infant. Having thus settled the law, that the court had no power to direct a sale for partition, the Judge says “it is ordered and decreed, that a writ of partition issue, to divide between the heirs at law of Hugh Swinton Ball deceased, and Elias Nonus Ball, the plantations on Cooper river described in the pleadings, so as to set off one moiety thereof to Elias Nonus Ball.” Is this a decree, or mere reasoning 1 Is it not a decree, that the infant’s estate should not be sold against his consent, at the instance of a tenant in common ? The decree provides, as will be seen, for the subdivison of the moiety of the heirs at law, by partition or sale under the Act of 1791. No one can say he does not understand this decree, or that it is capable of two meanings. This, then, was the decree ; it was not appealed from; and by the Act of 1808, a circuit decree, not appealed from, is final. The case was heard on appeal on other points, not affecting E. N. Ball, so he was not heard before that court; and yet it seems that all this time a plan was going on to' defeat Chancellor Dunkin’s decree, and compel the minor to sell. A writ of partition was issued, and the commissioners of the heirs at law made, not a partition, but a report that the land couldnot.be divided, that “ an actual partition would be injurious to one or more of the parties interested,” carefully avoiding to say that it would be injurious to the minor. This return, it seems, was submitted to some of the Appeal Judges, when the minor was not before that court, and in remanding the cause, it was referred back to make partition, !t conformably to the decrees of the court heretofore made, by sale or otherwise, as may be found necessary.” If this was intended to reverse the decree of Chancellor Dunkin, at least the minor ought to have been heard ; but no fair man, on a careful perusal, can doubt that the words 
      “ by sale or otherwise,” had reference solety to the moiety of the heirs at law. When Chancellor Johnson was called on to sell the minor’s share, no new evidence was produced — no return, under the Act of 1791, stating the reasons — and yet he reversed Chancellor Dunkin’s order, and overruled his law, that the court had no power to sell for partition, and decreed a sale in invitum. If this can be done, no man is secure in his estate; a Court of Equity is the law, and until they speak, no man knows his own. Without a trial by Jury, against a decree not appealed from, a fee simple is taken from one man and conveyed to a purchaser, by the officer of this court. No country in Christendom, no Turkish Aga, has ever before exercised such a power. But this violation of the decree is all to' be slurred over, and when the Chancellor was, as he thought, making a decree on full consideration of the law, he was only making an administrative order, that is, a mere discretionary order, which any other Judge might at a future day reverse. He thought he had settled the right of the minor to hold his land, and it was a favor even to let the heirs at law withdraw their moiety ; thus, in fact, making a new will in part; and now the will of the testator is revoked by the Appeal Court of Equity. But if it was even an administrative order, it ought not to have been set aside without a change of circumstances. The volunteer and studiedly ambiguous return, where no return was authorized, is no excuse.
    The case came up before Chancellor Dunkin on the motion of the heirs at law, to sell the infant’s moiety together with theirs. The right of E. N. Ball to a moiety, had been already adjudged and decreed, and the only question, as to him, was whether his share could be sold against his will. This truth must not be kept out of view. The question was directly presented, and directly decreed. It affected the right to hold the fee without a sale. There was nothing administrative in the matter. The right was challenged, and it was decreed upon, and there was no appeal. The facts cannot be truly stated, and the conclusion avoided — that it was a decree on the merits, sustaining the minor’s right to have his moiety in specie, and not the mere money from a sale. He had found, he said, decrees interlocutory and 'final, but no authority for the assertion, that a decree that land is not liable to be sold against the will of the owner, is not a decree at all, but an administrative order, liable to be superseded and varied: It is an attempt, by the use of a term, to get rid of a substantive decree. What, he presumed, is meant by an administrative order, is an interlocutory decree, not affecting the rights of the parties, but only necessary to expedite or facilitate the progress of the case.
    To call a decree, founded on two solemn decisions of the law court of appeals, a mere administrative order, is to pervert the plain meaning of terms. A decree founded on the constitutional right of a freeholder to retain his real estate, is not a mere decree on the mode and manner, but on the substance. The case must be met directly, and not evaded. The decree was against the parties calling for a sale of the whole premises. It sustained the right of the devisee to his moiety in specie, and the court refused the application for an order to sell. An administrative order, is one addressed to the discretion of the court, for the better forwarding the cause. This was a motion resisted on legal objections to the power of the court. The objections were sustained. The testator devised lands and negroes. The court has no power to set aside the will and make it a legacy of so much money as the land and negroes will bring at auction. The devisee is already in possession by force of the devise. This was an effort to dispossess him and compel a sale. The decree, then, was on the very merits; whether one in, by devise, can be compelled to go out, and yield to a purchaser. The quantity of interest had been already decided. If left at law, the devisee could not have been put out. The direct issue before the Chancellor related solely to the manner of executing the former decree, and he decreed he had no power but to partition, and not to sell. Now, having proved that there is a decree on the very subject, let us look to the subsequent proceedings. Chancellor Johnson, in direct opposition to the decree of Chancellor Dunkin, decided that this court had the power to direct a sale, and did so, in invitum • from this decree there was an appeal, and then, for the first time in all his practice, he heard that the appeal did not suspend the decree, and that the sale must go on. Indeed, Chancellor Harper says that the directing the sale was not the subject of appeal, because it was discretionary to divide or sell. If so, why was not Chancellor Dunkin’s order to divide, and not sell, equally final 1 But these doctrines, that an order to sell a man’s estate against his will, is not the subject of appeal, and that an appeal does not suspend all action on the circuit decree, are startling doctrines, and if sustained, render the court indeed a fearful engine. It would seem that the constitutional right of appeal is confined to the law courts, and the court of equity is here again beyond all control or limit. To give the court of equity final jurisdiction, even when all the Chancellors concur, is at least of questionable constitutionality, it being considered necessary to secure the right of appeal by a constitutional provision, and “ the Judges,” include certainly the law Judges. But that a circuit decree can be acted on while appealed from, or that any order affecting the sale of a freehold, can be placed at the discretion of a single Chancellor without appeal, will not go forth without exciting the special wonder of the profession and the people. The Act of 1808, 7 Stat. 304, creating a circuit chancery, provided that “ the orders and decrees of the said judges, in all cases wherein appeals shall not be made to the court of appeals hereinafter established, shall have the same force and effect with decrees sanctioned by the courts of appeal.” Of course, if appealed from, they are not final. The appeal court is to hear appeals “from any order or decree of any Judge presiding at the circuit.” Who then shall say, that an order, selling a man’s freehold, is not the subject of appeal'? But the 7th sec. of the Act gives the Judges power to make rules, and the 25th rule is that “no execution or attachment for the enforcement of a decree shall issue, until thirty days after the rising of the court during which such decree was pronounced, and if there be an appeal, then such execution or attachment shall not issue until thirty days after the adjournment of the court of appeals at which the cause shall be determined.” This is conclusive, and if a payment of money cannot be enforced, much less can a sale, by which one is turned off his land and compelled to give possession to another. If negroes are sold, they may be scattered all over the West before the appeal is heard. If this clear violation, both of the law and the rule of court, must go unchecked by the magic word “ administrative order,” such mischievous orders should be suppressed. But here, again, there is no room for two opinions ; the court is only to execute the law, and he called on them to do so.
    Here is the law of South Carolina, that an appeal does suspend a circuit deere. But it is supposed the English law, and the New York, is not so; if so, that is not to suspersede our own law. But on examination it will be found, that even in England the rule has fluctuated, and depends upon the will of the house of Lords. O’Connel’s case is an instance of the effect of executing a sentence, and then deciding it was illegal. It brings the law into contempt. The case of Green and Winter, 1 Johns. Ch. 77, so far from supporting the views of either Chancellor Johnson or Harper, happens to be an authority just the other way. A decree for the payment of a large sum of money was appealed from, and a petition was made, that pending the appeal, either the money might be deposited, or security given. If the appeal did not suspend the execution, whence the necessity of such a motion 1 It was conservative, and depended on the circumstances, and was like an application for a ne exeat or bail pending suit, to secure the performance of the decree in the last resort; see also City Bank vs. Bangs, 4 Paige, 285 ; Halsey vs. Van Arminge, 4 Paige, 279 ; Gregory vs. Dodge, 3 Paige, 90; Messonier vs. Houseman, 3 Johns. Ch. 66; Barrow vs. Rhine-lander, Id. 123 ; Riggs vs. Murray, Id. 183 ; Price vs. .Nes-bit, 1 Hill Ch. 453; see the rule in England, Guainin vs. Leth-bridge, 14 Yes. 586; also 9 Yes. 316, Wardens of iSt. PauVs vs. Morris. There is no ground, then, of reason or law to authorize the refusal of the Judge to direct the master to hold his hand ; and in this case, had no sale been made, no one doubts, none would be now directed against an infant. What excuse was there for selling his negroes, but that his land was taken away, and what for taking his land but to give to strangers the advantage of selling their land better ? And shall the hot haste in which this sale was pushed, be now an excuse to bend the law and talk of danger to purchasers ? Every purchaser was warned, and bought in spite of notice. In Turkey, it would create an outbreak, thus to make the violation of one’s rights itself an excuse for denying justice to the injured party.
    It remains to be seen whether this court will vindicate the law, and restore Elias Nonus Ball to his rights, or suffer him to be the victim of influences, which operated in the hurry of the circuit to defeat a calm investigation of his claims.
    
      Petigru and Memminger, contra,
    cited 3 Johns. Ch. 160 ; 1 M. <fe K. 61 ; 1 McC. Ch. 351 ; 1 Eq. R. 109 ; 11 Yes. 157, note ; 3 Burr. 1895 ; 4 Bro. Ch. 277 ; Bacon Abr. Error, M, 3 ; 6 Peters, 8; 3 Cranch, 300; 10 Peters, 449 ; Bacon Abr. Superse-deas, G; 10 Mass. R. 105 ; 9 Yes. 316 ; 15 Yes. 182 ; 16 Yes. 214 ; 18 Yes. 452 ; 17 Yes. 380 ; 2 Molloy, 345 ; 1 J„ & W. 48 ; 2 Hill Ch. 156.
    
      Bailey, in reply.
    The first question that requires solution in the case, is whether an appeal is a supersedeas, and he was a little astonished to hear so ranch argument upon a point almost self evident. It is the first time that the question has ever been raised in our courts, the general belief of the bar inclining to the affirmative of the position. It has been asked in the course of the argument, what is the use of an appeal if it does not suspend the operation of the judgment of the court ? — and as his colleague had correctly remarked, to say that the appeal does not suspend the court’s judgment, would be to allow that judgment to be executed, which might result in the most fatal consequences. Suppose the case of a party condemned to death and the judgment appealed from, — could the execution be ordered notwithstanding the appeal 1 The case in 3 Johns. Ch. 160, decides that an appeal is a supersedeas ; if it was not, wherefore the special order ? He cited 16 Ves. 213; 7 Stat. 304, sec. 3; 1 Hill Ch. 453. The Court of Equity has no jurisdiction to order a sale of lands except in cases of descent. The Act of 1791 only gives the court jurisdiction in such cases, and there is no case, either in the English authorities or in our own, which authorizes this court to order a sale of a devised freehold in invitum. The case in 1 Des. 109, is no authority, for it does not appear whether the parties did or did not consent. He cited Bac. Abr. Statute J. But the question is concluded by the decree of Chancellor Dunkin ; Bail. Eq. 98, 279 ; Dud. Eq. 28.
   Curia, per Habper, Ch.

I believe that the grounds on which I refused to suspend the sale on the application of Ta-veau and wife, were assumed somewhat hastily and unadvisedly.

Chancellor Dunkin’s decretal order of July, 1843, certainly directs one moiety of the land and slaves to be allotted to Elias Nonus Ball, specifically, and not otherwise, the other moiety to be divided between the parties entitled, and if the commissioners find it disadvantageous to divide specifically, then as to that moiety to recommend a different method, as provided by the Act of Assembly. This I think the obvious import of the decretal order alone, unconnected with the opinion which precedes it. Though the decretal order is alone the proper decree, yet, if there be any thing doubtful in its terms, it may be well construed with reference to the opinion, and we should, as far as practicable, give it a construction in conformity to the opinion. Thus considered, there can be no doubt with respect to the order ill question. The Chancellor, upon full consideration, decides explicitly that he has no power to order a sale of the infant’s portion of the estate, and that the same must be allotted to him specifically, and by metes and bounds; and if this order be regarded as an adjudication, I am of opinion that it is conclusive upon the parties, and was not reversed or modified by the judgment of the Court of Appeals.

I do not question but that it is within the competency of the court to make such modifications of a decree as the justice and merits of the cause may require, on its own motion, though the particular matter may not have been the subject of appeal. When a decree is said to be a affirmed, this may well mean that it is affirmed with respect to the matters appealed from, and is not inconsistent with the modification of the decree in other particulars. But I do not think this has been done in the present instance. The order of the appeal court directing the cause to be remanded, for the purpose of making the necessary orders to effect partition by sale or otherwise, conformably to the decrees heretofore made, must refer to this decree, if it be a decree, and the discretion allowed must respect the moiety with regard to which the Chancellor had admitted a discretion.

I am of opinion, however, that the decretal order, so far as it respected the manner of partition, was not a judicial, but an administrative order, subject to the control of the court, and that is "was modified and controlled by the subsequent order of-Chancellor Johnson.

The distinction between these sorts of orders is too familiar to need much illustration.

To render an order judicial, it must be one which affects the merits of the cause. Nothing is more common than that during the progress of a cause, property should be sold for its preservation, or some motive of convenience, thus changing the form of the property, without deciding on the respective rights of the parties in relation to it. It is not doubted, but that in such a case, if any change of circumstances should occur between the making of such an order and its execution, to render the sale unadvisable, it might be rescinded. So in the case of orders for the sale of infants’ property, there are many such instances. It has been determined that the order confirming the master’s report of sales, or of money paid by him, is not a judicial, but a ministerial order, and you may allege against it if the report be not true.

To determine whether the party is entitled to a partition, and in what proportion, is matter for judicial enquiry. In what manner he should be put in possession of his interest, is matter for administrative discretion.

Some difficulty arises, and there may be an appearance of refining in the views taken, from the circumstance that the order directing the writ, also decides the merits. If the decr-ee of Chancellor Dunkin had simply declared and adjudged Elias Nonus Ball to be entitled to a moiety of the estate, and to have a present right of partition, and this had been affirmed on appeal, and the cause remanded for the necessary order, its administrative character might have been more readily perceived. What were the matters in issue before Chancellor Dunkin 7 Undoubtedly to what portion of the estate the infant was entitled, and whether he was entitled to immediate partition. In what manner, or in what form, his portion of the estate should be allotted to him, was not in issue ; and can that be regarded as a judicial decision which relates to a matter not in issue, though the Chancellor may have expressed a legal opinion in relation to it ? It was a direction for carrying the decree into effect. To remove and appoint trustees as exigencies may require, is a function of this court. The laws on this subject have varied in this State, and elsewhere. Suppose, on application' for the purpose, a judge to decide, on consideration of the law, that he has no power to appoint or remove a particular trustee, and to become afterwards convinced of his error, and that he has such authority, may he not then, on sufficient shewing, grant the order he has before refused 7 — yet this he could not do, if the former order on the subject were an adjudication.

If by some arrangement of the parties, and in pursuance of an order to that effect, a writ of partition were issued requiring the commissioners to make partition among all the parties, specifically, by metes and bounds, this, in effect, would mean no more than the writ in this case, and in the common case, directing them to make partition ; yet can any one doubt the power of the court to make a different order, upon the return of the commissioners that they could not make such return without injury to the parties 1

Might not the parties vary their arrangement 7 During the present sitting, an order of Chancellor DeSaussure has been before us, in a case where there were two plantations belonging to an estate, directing one plantation to be allotted to one dis-tributee and the other to the other. If the commissioners had returned that one was entirely unsuitable for the purposes of a plantation, and that the other could be conveniently divided into two, might not the former order have been modified ?

I have spoken of the power of the court to modify or rescind an administrative order. It is hardly necessary to say that it makes no difference by what Judge the court is represented, whether the Judge who made the former order, or another. There may be greater delicacy in one case, but the authority is the same: It is, as I have said, only on a change of circumstances that the court will entertain a motion to modify or rescind a former order. This is because it will not be harrassed by a perpetual reconsideration of the same matter on the same grounds, — but if a Judge should capriciously, and without any change of circumstances, so modify or rescind, the last or rescinding order must prevail and continue valid till itself reversed.

Then the question arises with respect to the power of the court to sell for the purpose of partition, in any other case than that of intestates' estates. Undoubtedly our Courts of Chancery have assumed jurisdiction in various instances, not warranted by the rules and practice of the high Court of Chancery of South Britain, to which, by the Act of Assembly of 1721, they are directed to conform. Yet, where such jurisdiction has been long exercised — where, on the faith of decisions again and again repeated, and on the authority of law regarded as being so firmly settled as not to be questioned — titles have accrued, and money has been paid or invested ; thus involving, perhaps, the titles of a large portion of the property of the country, we should be guilty of far bolder and more mischievous usurpation, to resort to what we might conceive to be the true and primative practice, than the Judges who introduced the practice which we find established. It is not questioned, that by the rules and practice of the English Court of Chancery, it has no power to direct the sale of lands for the purpose of partition; and according to many of the cases cited in argument, much hardship and injustice have been suffered, from the want of such authority. The case of Dinkle vs. Timrod, 1 Dess. 109, is an authority that the court exercised the jurisdiction to make such sales, long before our Act of 1791, authorizing them in the case of intestates’ estates ; and before the Act, the court certainly had equal jurisdiction in every other case of tenancy, or tenancy in common, as in that of intestates’ estates. It exercised, also, jurisdiction in making partition of slaves, for which, of course, it could derive no authority from the English law. It is not questioned, but that the jurisdiction has been exercised familiarly and habitually, for the greater portion of a century, and I believe there is no lawyer at the bar, or Judge on the bench, who cannot verify the prevalence of the practice, so far as his recollection extends. '

It is argued, however, that we can draw no conclusion from this established practice, as the jurisdiction appears to have been exercised by consent; at all events, we find no case in which the objection to its exercise has been made and overruled. It is one thing, that for a long time no case has arisen, or been prosecuted under a law ; and from such a negative shewing, we might not be authorized to pronounce the law obsolete or repealed. It is another thing, that the law should be regarded as so firmly settled, and familiarly known, that no one has thought of calling it in question, though cases may have again and again arisen, in which the parties must have been invited to make the objection, if they had supposed they could do so successfully. The selling of mortgaged land for the purpose of satisfying the mortgage, is utterly unknown to the practice of Westminister Hall. Yet this has obtained in our courts, time out of mind; and I believe no case can be found, in which the authority of the court to make such sales has been questioned, or an objection to its exercise suggested. I should as soon think of calling in question the court’s authority in one case as in the other. But the argument is entirely misconceived, with respect to the jurisdiction having been exercised by consent, and the practice having obtained sub silentio and without objection. When joint tenants, or tenants in common, are all of full age, they need no aid of the court to enable them to make partition, or to sell. If all consented, they might divide or convey as they pleased. It is only in the case of some of the parties refusing to consent, that they would find it necessary to resort to the court. When some of the parties are infants, it would be the duty of the court, if such sale were not authorized, to make the objection for them, if it were not otherwise taken in their behalf.

There are some other views which it is hardly necessary to take. The court may have extended the equity of the statute of 1791, in relation to intestates’ estates, to all other cases of joint tenancy, and tenancy in common, according to a well known practice of the English courts, as being within the mischief or cause of the making of the Act.” Co. Lit. 24, b. It would be entirely analagous to the construction in Eyston vs. Studd, Plowd. 467, where the stat. 9 Ed. 3, c. 3, relating to executors, was extended to administrators ; or where a feoffment to defraud the lord was declared void, this was extended to all other conveyances, grant, fine, lease and release, die.

Whether we at this day, if the question were a new one, would give such extended construction to the statute, or not, we are not at liberty to disregard the construction of our predecessors, if they have given it.

It might be further remarked, also, that the words of the Act of 1791 are not necessarily' confined to the case of intestates’ estates. The words are that it shall and may be lawful for any person who may be entitled to a distributive share of any estate, real or personal, to have the writ of partition.” Now, the words “ distributive share” are commonly understood to relate to intestates’ estates, and in an Act providing for the distribution of intestates’ estates, this meaning might seem still more appropriate. Yet they are very capable of a different construction. Every tenant in common may very well be said to be entitled tó a distributive share of the common property ; and if courts heretofore have made this construction, I should not be prepared to pronounce it an erroneous one.

The order of Chancellor Johnson is affirmed.

Johnson and Johnston, CC. concurred.  