
    William Black, vs. William Erwin.
    
      An executor, authorized by ivill to st ll lands, cannot make an attorney to convey; if one have a bare authority,. coupled with a trust, he cannot act by attorney.
    
    Trespass to try titles to land. The land in dispute waá granted to Thomas Black, now deceased. To shew title in the plaintiff, the will of Thomas Black was produced, by which his executors, John and James Black, were authorised to sell the land for die purpose of partition amongst his children. The plaintiff then produced a deed signed by John Black, one of the executors, and by Joseph Steel as attorney for James Black, the other executor. The authority under which Steel acted in the execution of the deed,- was a letter of attorney from James Black, and the clause from which it was supposed he derived this power, was to the following effect: “ And I, the said James Black, do hereby authorise and empower the said Joseph Steel to do, act and perform all tilings in my business in the State of South-Carolina, as fully and in as ample a manner, and to do all things in the premises, as fully as I myself might or could do, were 1 personally present.”
    The court being of opinion that the land did not pass by this deed, non-suited the plaintiff; and this was a motion to set aside the non-suit on the ground, that the letter of attorney being general, Steel was fully authorised to join John Black in the execution of the deed, and that the deed so executed vested the title in plaintiff.
   The opinion of the court was delivered by

Mr. Justice Johnson.

Admitting that an executor may legally constitute an attorney to sell the }ands of his testator, it .may well be doubted Whether a general authority to his agent, in his individual character, without reference to his representative character as executor, would confer such a power. But that an executor cannot act in such a case by attorney, is too clear to admit of doubt.

Clendinen and Hill, for motion.

Williams, contra.

The general rule is, that if a man have a bare authority, coupled with a trust, he cannot act by attorney; for this being a trust and confidence reposed in him, he cannot transfer it to another; 9 Rep. 75; 6 Roll. Abr. 330, cited in 1 Livermore on Agency, 29; and the very case under consideration is put by way of, illustration.

Under the act of the legislature,, a majority of the executors are authorized to convey lands, directed to be sold by the will of the testator. But in this case, there were bat two, and it follows that to convey the title both must^ join in ike deed. The motion refused.

Colcock, Gantt, and Richardson, Justices, concurred.  