
    *Mundy v. Vawter & als. Watts v. Christian & als. Vawter & als. v. Watts’ Ex’ors & als.
    January Term, 1847,
    Richmond.
    (Absent CABELL,, P., and DANIEL, J.)
    1. Deeds — General Description — What Property Passes. —A conveyance of “all the estate, both real and personal,” to which the grantor “is entitled inlaw or equity, in possession, remainder or reversion,” is valid to pass the" grantor’s whole estate.
    2. Same — Same—Registry—Notice to Purchaser. — The registry of a deed conveying land by such general description, is not notice in law, to a subsequent purchaser from the grantor, of the existence of said deed.
    3. Same — Same—Same—Same — Actual Notice — Proof of- — Actual notice of such a deed, and of its contents, would not affect such purchaser, unless he had notice that the land purchased by him was embraced by the deed. And the proof of such notice must be such as to affect the conscience of the purchaser; and is not sufficient if it merely puts him upon enquiry. It must be so strong and clear as to fix upon him the imputation of mala tides.
    
    
      4. Trusts and Trustees — Trust Property — Power of Trustees to Sell. — Land is conveyed in trust, first, that the debts of the grantor shall be paid out of the rents and profits; second, for the support of the grantor, his wife and children; and third, at his death, to be divided among his children. Held'. The trustees have no authority to make sales of the land conveyed, for the payment of the debts of the grantor, or for any other purpose; however urgent the necessity for such sales.
    5. Same — Same—Same—Purchaser—Notice of Trust.— A purchaser from the grantor of the land conveyed in trust, taking a conveyance from such grantor and the trustees, has notice of the trust; and is bound to know that the trustees have no power to sell the land.
    6. Same — Same—Same—Same—Same—Grantor’s Equitable Title. — The grantor in the trust deed appear-„ ing from the title papers to have but an interest of one fourth in the lands described therein, though he has an equitable title to the whole land, a purchaser taking a-conveyance from him and the trustees, without actual notice of the grant- or’s equitable title, will be held a purchaser with notice of tie rights of the cestuis que trust, only to the extent of the one fourth.
    *7. Chancery Practice-Decree between Co=defendants. — The cestuis que trust having obtained a decree against the purchaser, for the one fourth of the land, as to which he was bound to have notice of their rights, in a suit in which the purchaser and the grantor in the trust and the trustees are parties, although the purchaser would have a remedy at law on the joint warranty of the grantors in the deed to him, yet as the relief to which he is entitled arises out of the decree against him. and upon the pleadings and proofs between the plaintiffs and said grantors, the Court will decree over in favour of the purchaser against his grantors.
    8. Trust and Trustees — Purchase by Trustee of Trust Property — Effect—A purchase by one of the trustees from the grantor in the trust deed, and others supposed to be joint owners with him, of a part of the trust property, which the trustees had no authority to sell, and the conveyance to him, are wholly nugatory.
    9. Same — Same—Warranty of Vendors — Recovery of Purchase Money. — The conveyance to the trustee being utterly null and void, he cannot recover upon the joint warranty of his vendors. But the contract having been made under a mutual mistake as to the title, he may recover from each grantor the amount of the purchase money received by him.
    10. Chancery Practice — Pleadings — Evidence — A Court of Equity can only decree upon the case made by the pleadings; though the evidence may shew' a right to a further decree,
    ii.Trustees — When Chargeable with Interest. A trustee, accountable for rents received by him. is chargeable with interest thereon.
    In the years 1747 and 1753, James Christian, 1st, made entries ior several parcels, of land then vacant, viz: one for 390 acres, another for 365 acres, and another for upwards of 2000 acres; all of which entries were duly surveyed in his lifetime. On the 19th of January 1753, so much of those lands as then lay on ETuvanria, now called James river, on both sides thereof, including the Buffalo Islands, were compiehended by the surveyor of the county of Albemarle, in one survey, which (the vacancies' between the former entries being included), amounted to 2350 acres. Of these 2350 acres, he obtained patents for two tracts only, to wit: one for 200 acres called Buffalo Islands, and one for 240 acres called'Coleman’s Neck, which he was said to have aliened, leaving 1910 acres unpatented.
    *On the 18th of May 1752, James Christian, 1st, made his last will'. In the latter part of the year 1758, he died, and his will was duly admitted to probat on the 8th of March 1759. By this will James Christian, 1st, directed the said large survey, (under the description of the remainder of his land,) to be equally divided among his four sons Charles, James, John and George.
    In the year 1761, Charles Christian, 'who was the eldest son, died without wife, child or will. At which time no further steps had been taken in relation to said land;
    In the year 1768. 1769 or 1770, John Christian, 3d, and George Christian the fourth son of James Christian, 1st, with the assent and approbation of James Christian, 2d, took possession of about 800 acres of said land lying on one side of a branch which separated their land from his, and worked the same in partnership for several years. John and George subsequently divided this land between themselves by stated metes and bounds, but without ascertaining the quantity within either boundary. This was done in the lifetime of James Christian, 2d.
    On the 20th of October 1772, James Christian, 2d, made his last will, by which he gave to his brother John Christian, a part of the aforesaid iands, which he had reserved to himself, which part he described as his plantation on Hooker’s creek, joining Henry Bell’s line and William Duvall’s line, containing 300 acres; and to George Christian another part, by the description of the plantation whereon he lived, (which contained about the same quantity,) and his lands thereunto belonging. He had obtained patents for three tracts of 253, 250 and 400 acres, on the north side, binding upon the survey of 2350, but not included within it.
    On the 29th of May 1780, the survey aforesaid of 2350 acres, was returned to the register’s office by James Christian, 2d, for the purpose of procuring a grant; *but having paid the ancient composition money for 1910 acres only, to •which the said survey was reduced as aforesaid, the register .retained the survey in order that a proper certificate might be obtained of the said reduction. In this state of things James Christian, 2d, in the year 1781, died, and his will was duly admitted to probat.
    In the year 1784, or 1785, George Christian also died intestate, without any further steps having been taken to procure a grant for said lands. He left Martha Christian, who afterwards intermarried with Stephen Watts, his widow, and James, 3d, who was his heir at law, Elizabeth, Charles and Sally, his only children, which said Elizabeth afterwards intermarried with James Murphy, who is since dead, and Sally with William Horsley.
    In the year 1794, a treasury warrant in favour of the said James, Elizabeth, Charles and Sally Christian, procured by their then guardian, Reuben Norvell, they being then under the age of twenty-one years, was located on what was computed at 1036 acres of the land embraced in said survey, comprehending a part of said survey which had been assigned to John Christian by George Christian himself, for which they obtained in due form a patent. Of this land, John Christian, as heir at law of his father and two brothers, Charles and James, procured a patent for 365 acres, by virtue of one of the surveys of 1747; but this the said James Christian, Elizabeth Christian, Charles Christian and Sally Christian, by the said Reuben Norvell their guardian, recovered in an action of ejectment against the said John Christian, in the late District Court of Charlottesville. To this judgment John Christian obtained from the late High Court of Chancery for the Richmond district, an injunction, which being perpetuated by that Court, was dissolved by the judgment to his Court on *the 1st day of March,, 1820. The plaintiff’s bill, after said injunction was obtained, was amended twice, in which other parties were introduced, and a claim set up for all the other lands. The history and proceedings in this case, will be seen by reference to 6 Munf. Rep. 534, under the style of Christian’s devisees against Christians and others.
    James Christian having come of age in 1794, he on the 6th of January 1801, together with the said Elizabeth, who was also of full age, and Stephen Watts, on behalf of Charles Christian and Sally Christian, who were not of full age, entered into a covenant with Reuben Norvell; by which the parties stipulated as follows: “That whereas the said Reuben Norvell, guardian and next friend to the said James, Elizabeth, Charles and Sally Christian, (all children of the said George Christian deceased,) hath located, surveyed and patented in their several names, one thousand thirty-six acres valuable land in the county of Amherst, on the north side, and joining Fluvanna river, and including the plantation of their father aforesaid, and John H. Christian’s quarter plantation. And whereas the said Reuben Norvell hath been at very considerable trouble and expense in prosecuting a law suit for the same, (which is still pending,) without 'any previous stipulation for such expense and trouble; now for the full and entire compensation of such trouble and expense, we the said James Christian and Elizabeth Christian, respectively oblige ourselves, our heirs, executors or administrators, to convey to the said Norvell, good and sufficient title in fee simple to one half of our respective proportions of the lands claimed by John H. Christian aforesaid, being bounded by the road leading from Dillard’s island, through the lane which separated the plantations of the said John H. Christian and George Christian, deceased ; thence a direct line with the lane to the back line of the 1036 acres aforesaid. And the said Stephen Watts under - takes *for and on behalf of the said Charles and Sally Christian, that they and each of them shall convey a good and lawful title to one half of their respective parts to the said Norvell of the said land of John H. Christian; that is to say: the said Charles, upon his coming of age, or whenever thereafter required, shall convey his part, and that the part of the said Sally, upon her marriage or coming of age, shall be conveyed as above mentioned, and in case either of the children aforesaid shall fail to make such conveyance when thereunto required, the said Stephen Watts obliges himself, his heirs, executors or administrators, to pay unto the said Reuben Norvell the sum of two hundred and fifty pounds current money for each or either their default in making the conveyance aforesaid. And the said Reuben Norvell on his part agrees that he will not ask or demand any other compensation for the expense and trouble aforesaid than the one half of the land which may be recovered out of that part of the said land, which is claimed by John H. Christian, at the same time undertaking to obtain a good and indefeasible title to the land whereon George Christian formerly lived upon, unto the said James, Elizabeth, Charles and Sally Christian, as contained in the patent.”
    The result of this suit was that the said James, 3d, Elizabeth, Charles and Sally Christian were confirmed in their title to so much of the 1036 acres patented to them, as lay on their side of the line, established by John and George Christian, for the division of their lands, and to the 253, 250 and 400 acre tracts patented to James Christian, 2d, in his lifetime, binding upon, but not included in, said general survey, and one moiety of 400 acres on the south side of the river, and one fourth of 400 acres on Stonewall’s creek, which had been patented to said John Christian but which was a part of the survey of 2350 acres.
    ’•''The title of George Christian’s children to the 253, 250 and 400 acre tracts on the north side of the river, was acquired under the -will of James Christian, 2d, as construed by the court.
    After the decision of said suit, and recovery of said lands, the said James Christian, 3d, James Murphy, the husband of Eliza beth, Charles Christian and William Hors-ley, the husband of Sally, in compliance with said contract of the 6th of January 1801, having sold their moiety to the said Reuben Norvell, conveyed by joint deed in fee simple the whole of the said tracts of 253, 250 and 400 acres of land, lying in the county of Amherst, and the lands on the south side of the river. This deed was duly admitted to record; but is not copied into the record. One fourth of the money for the purchase of the moiety of said tracts of land, was received bj James Christian, 3d.
    After the decision of said cause by the Court of Appeals, John Christian filed a supplemental bill against Boothe and Staples, in which the heirs of George Christian united; in which, by a decree of the Richmond Chancery Court, the heirs of Joyce Christian, who was John Christian’s devisee, both being dead, and said heirs of George Christian, recovered 400 acres of land running in the survey of James Christian, 1st, which had been patented to Boothe and Staples.
    By the decree aforesaid, the heirs of Staples, who was dead, and the marshal, on behalf of Boothe, were directed to convey this tract of land with special warranty, to the heirs of Joyce Christian and the heirs of George Christian; but Norvell having sold or exchanged the moiety of said tract, with John M. Walker, the said James Christian, 3d, Elizabeth Murphy, Charles Christian and William Horsley and wife, by power, duly executed on the 29th of March 1825, under their hands and seals, acknowledged the sale of said lauds to Norvell, and authorized the deed for one moiety Thereof, which was to have been made to them, to be made to said John M. Walker, the vendee of Norvell.
    On the 17th of June 1805, James Christian, 3d, executed a deed of trust to Stephen Watts and James Murphy, which was duly recorded in the clerk’s office of the County Court of Amherst on the 16th of December 1805, and by certificate in the clerk’s office of the County Court of Nelson, on the 22d of February 1830.
    By this deed, the said James Christian conveyed in the most general terms “all his estate, both real and personal, in possession, remainder or reversion, to which he” was “entitled in any manner in law or equity;” that out of the rents, issues and profits, the trustees should pay all the just debts that the grantor owed at the time, and decently and comfortably maintain and support the grantor and his wife during his life, and provide for the education and support of his children, and at his death should divide and convey the estate thereby conveyed, together with the accruing profits, one third to the grantor’s wife for life, and the residue to his children and the descendants of such as might be dead, the child or children of a deceased child taking the parent’s share of the estate. The duties of this office were discharged by Murphy and Watts jointly during the lifetime of Murphy, and then by Watts, until near the time of his death.
    Of these lands, there went into the hands of James Dillard 336 acres, by purchase from James Christian, 3d, James Murphy and wife, Charles Christian and William Horsley and wife, at the price of 1344 dollars, which is now in the hands of his dev-isees ; one fourth of which was paid to James Christian, 3d. This deed bears date the 17th of December 1807, and was also signed by the trustees Watts and Murphy, the wife of James Christian and the wife of Stephen Watts. There went into the hands of the said Stephen Watts *365 acres by deed, in fee simple, from James Christian, James Murphy and wife, Charles Christian, William Horsley and wife, and James Murphy, as trustee of James Christian, 3d, bearing date the 8th day of November 1809, at the price of ^600., which afterwards went into the possession of his son Henry H. Watts, and is now in the possession of his widow and heirs. Of the purchase money, the said James Christian received one fourth, and the other distributees three fourths.
    There went into the hands of Henry H. Watts, by gift from Charles Mundy, who purchased from Christopher Anthony and George R. Norvell, trustees, who sold under a deed of trust from Reuben Norvell, a tract of 253 acres, and which is now in possession of the widow and heirs of Henry H. Watts. There is also in the possession of the said Charles Mundy 180 acres, derived by purchase from the said trustees. There is also in the possession of the heirs of James Eondon, sen. 125 acres, one moiety of the 250 acre tract, and the residue thereof, and the 400 acre tract lying in the county of Amherst, is in the possession of the said Norvell, or those claiming under him.
    On the 24th of June 1816, Stephen Watts sold and conveyed by deed, in fee simple, to James Christian, 3d, a tract of 265 acres, lying in the county of Nelson, at the price of ¿265.
    Stephen Watts was the father of James Christian’s wife, and the husband of his mother. James Murphy, the other trustee, was the husband of Elizabeth, his sister, at the date of the deed.
    The inducement to the execution of the deed of trust was not any natural imbecility of mind of James Christian, but an occasional incapacity to manage his property judiciously, and properly provide for his family.
    On the 15th of December 1831, Watts exhibited his bill on the equity side of the Circuit Superior Court of 'Taw and Chancery for the county of Nelson, against James Christian and Cordelia his wife, and the children of said James Christian, and Archibald Austin, executor of James Murphy deceased. The object of the bill was to procure a settlement of the accounts of the plaintiff, as trustee under the deed of trust of the 17th of June 180S.
    The defendants all answered the bill except Cordelia Christian, and Archibald Austin, executor of James Murphy, as to whom it was taken for confessed. The answer of James Christian insists upon all his rights; denies that he was embarrassed to an extent which threatened his whole estate, as charged by the bill; alleges that he was influenced by the plaintiff and his wife to execute the deed of the 17th of June 180S; that the plaintiff knew the pecuniary condition of the defendant, and could not have taken a deed conditioned to pay his debts out of the profits, if he had been indebted to the degree stated in the bill; states the defendant’s real estate consisted of the various tracts in the hands of James Dillard’s heirs or devisees, Henry H. Watts’ widow and heirs, James London's heirs, Charles Mundy and Eeuben Norvell, or his trustees in Amherst, and 200 acres in the hands' of John M. Walker, and another tract sold to B. Hardwick in Buckingham; objects to the division of the proceeds among himself, his brother and sisters; denies any agreement to allow his brother and sisters to share in his real estate, and insists, if it was made by him, he had no authority to make it; united in the deeds because he was in the power of his trustees; denies any knowledge of the land purchased and conveyed to him by the plaintiff; denies the plaintiff’s right to sell and purchase for the cestuis que trust; denies that a Court of Equity would have decreed a sale of the' property for the payment of debts.
    To ■ these answers the plaintiff filed a general replication.
    *On the 4th day of May 1832, an ' order of account was entered, directing Stephen Watts to settle his trust accounts, and the executor of James Murphy to settle said Murphy’s trust accounts before a commissioner of the Court, and Silas P. Vawter was appointed trustee of said estate, in the place of Stephen Watts.
    On- the 29th of April 1833, the said Stephen Watts having died, this cause was revived in the name of Samuel Loving, his executor. «
    By his will he directed his executors to set apart a fund out of his estate to idem-nify his son Henry H. Watts to the value of the land the Christians might recover from him, and all costs and expenses incurred in defending the suit.
    On the 18th of July 1833, Silas P. Vawter, trustee, and the children of James Christian, 3d, exhibited in the same Court their bill against Samuel Loving, executor of Stephen Watts deceased, Charles Mundy, executor of Henry H. Watts, deceased, and the widow and children of Henry H. Watts, Archibald Austin, executor of James Mur'phy deceased, Elisabeth Murphy, Charles Christian, William Horsley and Sally his wife,' Joseph S. Dillard and William Di - lard, executors of James Dillard deceased, Eeuben Norvell, Charles Mundy, Lorenzo D. Norvell, James London jr., executor of James London sen., deceased, Benjamin P. Walker, Meshac Boaz, William Moore, James P. Eogers and William Phelps, which bill charges, among other things, that George Christian, the father of James Christian, 3d, departed this life intestate on the 19th of August 1784, leaving a widow and four children, to wit: the said James, the said Elizabeth, who intermarried with James Murphy, who has since departed this life testate, and Archibald Austin is his executor, Charles Christian and Sally Christian, who has since intermarried with William Horsley. That the widow of George Christian afterwards intermarried with Stephen *Watts, who has since died testate, and Samuel Loving is his executor.
    That the said George Christian died seized of sundry tracts of land in the counties of Buckingham and Amherst. That the said James was his eldest son, and as the law then was, his eldest son took by inheritance all his lands, which consisted of the following tracts, to wit: one tract of 360 acres in Amherst, which afterwards came to the possession of James Dillard, of which he died possessed; also one other tract of 365 acres in the same county, which has since come into the possession of Henry H. Watts; also one other tract of 253 acres in the same county, which came to the hands of a certain Eeuben Norvell, and from him passed to Charles Mundy, and from him to the said Henry H. Watts; also one other tract of 250 acres in the same county, which also came to the possession of the said Norvell, one moiety whereof he conveyed to James London jr., executor of James London sen., who now holds it in that character, the other moiety the said Norvell still holds, or has conveyed it by a trust deed to secure his debts; also a moiety of 400 acres in Buckingham county, now in the possession of Benjamin P. Walker, who claims the same by a conveyance from said Norvell; also 400 acres in Amherst, adjoining the lands of Henry H. Watts, now held by the said Norvell, or some one claiming under him; also 517 acres in Buckingham county, now held by Meshac Boaz, William Moore, James P. Eogers and William Phelps, who claim it through persons who pretend to derive title to it from the said Stephen Watts. That although the title to the said lands was good in law and equity, the said Eeuben Norvell, his guardian, when he was about sixteen years old, affecting to consider his title questionable, laid a land office treasury warrant on the said lands, or a great part thereof, not in the name or for the benefit of the said James to perfect his title, but in the ‘name of the said James, his brother and two sisters aforesaid, and affecting to believe that adversary claims to the said lands would be sustained by other persons, he exacted from the said James, his ward, and from the other persons who by his instrumentality had been associated with him in the land warrant and location, a moiety of what might be secured by the said location, and contrived either before, or shortly after the said James attained the age of twenty-one years, to obtain from him a document ratifying the iniquitous arrangement, without any consideration whatever, regardless of his duty as guardian of the said James; and so far from benefiting the rights of the said James, transferring to himself a moiety of his patrimony, and transferring to his brother and two sisters three fourths of the remainder. In the arrangement^ the bill charges Stephen Watts, who had become the father-in-law of the said James Christian, and the husband of his mother, had great agency and instrumentality; that there was no necessity of resorting to the land office treasury warrant, which was empiricism, if no worse, as appears by the decision of the Court of Appeals in Christian’s devisee against Christian and others, 6 Munf. E. S34.
    The deed of the 17th of June 1805, is charged to have been executed by the said James Christian, 3d, shortly after he attained the age of twenty-one years, to the said Stephen Watts and James Murphy, conveying to them his whole estate. That the amount of debts due from James Christian, 3d, was at that time fully known to Stephen Watts, who with James Murphy, having possessed themselves of the legal title to the whole estate of the said James Christian, in combination with the said Norvell, proceeded to sell the said tract of 336 acres to James Dillard, at 4 dollars per acre, in 1806 or ’07, a moiety of the proceeds the said Watts and Murphy paid over, as they say, to William Horsley, who had intermarried with James Christian’s *sister Sally, under pretext that they had acquired right to it under Nor-vell’s location and patent, taking, as it is believed, an indemnity from the said Hors-ley against the right of the said James and the other plaintiffs. The purchaser had full knowledge of the conditions and the stipulations of said deed, and stands bound thereby. That Stephen Watts in 1809, became the purchaser from the other trustee and Charles Christian, of the tract containing 365 acres, at 5 dollars per acre, and conveyed the same to his son Henry H. Watts, and the proceeds were divided between James Murphy in right of his wife Elizabeth, and Charles Christian, in part or in whole of their share of their patrimony of the said James, under the arrangement aforesaid, and it is believed a like indemnity was given against the right of the said James and the other plaintiffs. That James Murphy, sold to the said E. Norvell the tract of 253 acres at 4 dollars per acre, the tract of 250 acres at 3 dollars per acre, the moiety of the tract of 400 acres at about 8 dollars per acre; also the tract of 180 acres at 3 dollars per acre, and the tract of 400 acres, adjoining Henry H. Watts, at 2 dollars per acre. One moiety of the proceeds was kept by the said Nor-vell as his reward in the transactions aforesaid; three fourths of the other moiety were kept by Murphy and wife, Horsley and wife, and Charles Christian, and the other fourth was paid to the said James Christian. That the said Watts and Murphy sold the tract of 517 acres in 1812 to Benjamin Hardwick, Peter North and Nicholas Turner, at the price of ; what they have done with the proceeds, the plaintiffs do not know, but they charge it was not necessary to sell any part of the lands for the payment of James Christian’s debts, and the act was inconsistent with and a violation of their duties as trustees, which was known to the respective purchasers.
    *The plaintiffs claim the lands, the sale of them having been made without authority; but, if wrong in this, they claim the purchase money with interest, and a lien on the lands as security for its payment, as the purchasers were bound to look to the title, or to the application of the purchase money.
    The plaintiffs pray for an account of the whole trust subject, real and personal; and pray the Court to set aside all contracts and conveyances by which James Murphy and wife, William Horsley and wife, and Charles Christian, have been permitted to appropriate to themselves the estate of James Christian, 3d, and to set aside all contracts, sales and conveyances of all and every' part of the trust lands made since the deed of trust, and to decree an account of the rents and profits, or the value of the lands in money with interest thereon, and to subject the lands to the payment of the same, and to be reinstated in all their rights, so far as they have been impaired by Eeuben Norvell, Stephen Watts and James Murphy. To this bill, James Christian is no party.
    The answers of Boaz, Moore, Eogers and Phelps, state that the deed of 1805, was not recorded in Buckingham, where their lands lie; and they allege they are bona fide purchasers for valuable consideration without notice.
    The other defendants filed their answers, in which they assert the integrity of Eeuben Norvell’s course, the validity of the patent of 1794, the validity of the contract between James Christian, Elizabeth Christian and Stephen Watts, on behalf of Charles and Sally Christian and Eeuben Norvell; the recognition of and acquiescence of James Christian in these proceedings and contract for more than thirty years after he became of age; the justice and propriety of these transactions, and his solemn recognition of them by deed and otherwise *by Janies Christian. They deny that the deed of trust to Watts and Murphy, by any fair construction, covered lands then in the course of litigation, or that there was any fraud, misrepresentation or imposition practised upon the said James Christian, or that in any of these transactions he acted in ignorance of his rights.
    The answer of Benjamin P. Walker, admits he holds the one moiety of the 400 acre tract of land lying in Buckingham. Claims it by descent from his’ father John M. Walker, who claimed by ' purchase from Reuben Norvell, who purchased from James Christian, Murphy and wife, Charles Christian, and Horsley and wife, or sale ratified and confirmed by said James Christian by the deed of the 29th of March 1825, appended to the answer.
    On the 2d of October 1834, these causes came on to be heard together, and by consent of the parties, an account was directed of the trusteeship of Watts and Murphy, of the rents and profits of the real estate in the bill mentioned, and of the purchase money and interest of the same, distinguishing such as was received by any of the cestuis que trust.
    On the 6th of October 1835, the causes came on to be further heard together, and the Court decreed the contract between Reuben Norvell and James Christian and others, in the year 1801, and the deed from the children of George Christian to Norvell, in the year 1820, for 250, 253 and 400 acres of land in Amherst, and a moiety of 400 acres in Buckingham; also the deeds from Norvell to Mundy, London and the other purchasers, predicated on the deed to Nor-vell in 1820; also the deed to James Dillard in 1807, and the deed from Murphy and others to Stephen Watts, and his deed to Henry H. Watts, to be set aside, vacated and annulled as to the plaintiffs, and that their bill be dismissed with costs as to Boaz, Moore, Phelps, Rogers and Walker, and that the executors of Watts and Murphy render an *account before Charles Perrow, a commissioner of the Court, of the administration of the trust fund, with special directions how to state the accounts; also an account of the rents and profits of the lands in Amherst and Nelson, from the time they were respectively sold, with special directions how to state the accounts; also an account of the proportions of the proceeds of sale of the trust property, or of the rents and profits thereof, received by Murphy and wife, Horsley and wife, and Charles Christian, in virtue of their supposed claims as coparceners and coheirs with the plaintiff James Christian, 2d; also that the said Elizabeth Murphy, Charles Christian, and William Horsley and wife, by deed of bargain and sale, release and confirmation, convey to the plaintiff Vawter, for the purposes of the trust declared by the deed of the 17th of June 1805, all such title as was vested in them by virtue of the patent of 1036 acres, so far as the said patent embraces and covers any purtion of the land devised to George Christian from James, 1st, and James, 2d, which descended upon the said James Christian, 3d, by the death of his father.
    This decree, as to Walker, was set aside at the same term, and leave given the plaintiffs in the second suit to amend their bill, which was filed in December 1835.
    On the 5th of October 1836, writs of habere facias possessionem, against the various defendants from whom the lands were recovered by the decree of the 6th of October 1835, were awarded, except as to Mundy, who had obtained an appeal from the decree of October 1835.
    Commissioner Perrow made his report, to which exceptions were fil?d by the executor of Stephen Watts, and the plaintiffs in the second suit; but it is only necessary to notice the 1st exception of Watts’ ex’or, and the 11th, 12th and 13th exceptions of the plaintiffs. The 11th and 13th were exceptions to the allowance of a credit of one third of the rents of the land, and one *third of the purchase money after the land was sold, to Stephen Watts on account of the right of dower of his wife, who had been the wife of George Christian. It appeared in proof, that this claim had not been set up during the life of Stephen Watts and his wife, but had been expressly disclaimed by them. The 13th exception related to the price at which the land sold to Hardwick was charged. The commissioner charged it at the price at which it was sold, which was two dollars and two dollars and fifty cents per acre, while the plaintiffs asked that it should be charged at its real value at the time of the sale; which, they insisted, was upon the proofs founded on the sale thereof but a few months afterwards, nearly three times the amount obtained for it. The 1st exception of Watts’ ex’or was: That the trustees were charged with interest on conjectural rents.
    This report shewed that there had been no necessity to sell the land conveyed in the deed of the 17th of June 1805, for the payment of the debts of James Christian, 3d.
    In May 1837, the Court overruled all the exceptions of Watts’ ex’or; and also the 11th, 12th and 13th exceptions of the plaintiffs in the second suit, but sustained others and recommitted the report. And the report being reformed, the Court made a decree according therewith, in favour of the plaintiffs in the second suit, and between the defendants. Whereupon Watts’ ex’or and Horsley applied to this Court for an appeal, which was allowed.
    The case of Mundy v. Vawter, was argued orally by Eeigh, for the appellant, and the Attorney General, for the appellees; and all the cases were argued on paper by Taylor, and James Garland, for the appellants, and the Attorney General, and C. & G. N. Johnson, for the appellees.
    *Eor the appellants it was argued : That neither James Christian, the 1st or 2d, or George Christian, having obtained a patent for the 1036 acre tract of land, they had only an equitable title, at most. And forty-one years having elapsed from the time os the survey, without their having taken any steps to procure a patent, the land was liable to be entered and patented under the act 1 Rev. Code, ch. 86, $ 38, p. 329. And that when Norvell procured a patent for this land in 1794, in the name of all the children of George. Christian, it vested in them the. legal title. That the evidence not only did not establish a fraud on the part of Norvell in procuring the patent in the name of the four children, but it shewed that he could have had no motive for the commission of such a fraud. That conceding James Christian was a minor when the patent was obtained, he had, after coming of age, ratified and confirmed it by repeated acts and declarations; with a full knowledge of his rights, and was thereby estopped from avoiding it. Eouch v. Parsons, 3 Burr. R. 1794; Gibbs v. Merrill, 3 Taunt. R. 307; Goode v. Harrison, 7 Eng. C. L. R. 49; Coke Litt. 3 a; Thompson v. Leach, 2 Vent. R. 198; South-erton v. Whilock, 2 Stra. R. 690; Cory v. Gertcken, 2 Madd. R. 40; Goodsell v. Myers,' 3 Wend. R. 479; Lawson v. Love-joy, 8 Greenl. R. 40S; Dubose v. Wheddon, 4 M’Cord’s R. 221; Cheshire v. Barrett, Id. 241; Delano v. Blake, 11 Wend. R. 85 ; Wamsley v. Lindenberger, 2 Rand. 478; Willand v. Stone, 7 Cow. R. 22; Wheaton v. EJast, 5 Yerg. R. 41; Holmes v. Blogg, 4 Eng. C. L. R. 10; 2 Kent’s Com. 238; Jackson v. Carpenter, 11 John. R. 539; Thompson v. Lay, 4 Pick. R. 48; Denson v. Boyd, 1 Dana’s R. 45; 1 Rolle’s Abr. title Enfants, K 731, E 45; Ketsey’s Case, Cro. Jac. 320; Evelyn v. Chichester, 3 Burr. R. 1717; Baylis v. Dineley, 3 Mau. & Selw. 481; Huguenin v. Baseley, 14 Ves. *R. 273; Fox v. M’Reth, 2 Bro. Ch. . R. 400; Lewis v. Pead, 1 Ves. jr. R. 19.
    It was further argued that the ratification of the patent in favour of his brother and sisters, by James Christian, 3d, was not a mere gratuit}'; but was founded on a legal and valuable consideration, consisting of the expenses incurred in procuring the patent, and the trouble and expense of prosecuting and defending the suits necessary to protect the title to these lands. Eorth v. Stanton, 1 Saund. R. 210, note 1, 2; Miller v. Drake, 1 Caine’s Cas. 45; Powell v. Brown, 3 John. R. 100; Eorster v. Puller, 6 Mass. R. 58; Oversteet v. Phillips, 1 Litt. R. 123; Lent v. Padelford, 10 Mass. R. 230; Train v. Gold, 5 Pick. R. 380; Story on Cont. 73-75; Corny. Dig. title Assumpsit B.
    It was argued in the second place, that the contract with Norvell in 1801, was a bona fide contract, founded on valuable consideration ; being for services and money theretofore rendered and expended, and for services and money to be rendered and expended. And as it was a contract executed, the doctrine of champerty and maintenance could have no application to it, even if it could have been applicable before the contract had been executed. This contract having been fairly made upon a valuable consideration, which had been fully and successfully rendered; and having been executed, it is not competent to James Christian, 3d, now to set it aside. Bean v. Smith, 2 Mason’s R. 252; Gore v. Brazier, 3 Mass. R. 523; Trull v. Bigelow, 16 Id. 406; Coleman v. Cocke, 6 Rand. 618.
    But even if the contract of 1801, with Norvell, and the conveyances founded upon it, could be set aside as to Norvell, bona fide purchasers from him will be protected. They bought with the patent and joint deeds before them; and thus have been misled by James Christian himself; and cannot now be affected by any claim which he may set up.
    *It was argued, thirdly, that as there was an actual adversary possession of the lands conveyed to Norvell by James Christian and the other children of George Christian, when the deed of 1805 was made by James Christian to Watts and Murphy, and as that was a deed of bargain and sale, these lands did not pass by it. Duvall v. Bibb, 3 Call 313; Tabb v. Baird, 3 Call 411; Hopkins v. Ward, 6 Munf. 38; Vaughan v. Green, 1 Leigh 287; Clay v. Ransome, 1 Munf. 454; See v. Greenlee, 6 Munf. 303; Davis v. Martin, 3 Munf. 285; Goodright v. Forrester, 8 East 552; Williams v. Jackson, 5 John. R. 489. And as there was no warrant}' of title in it, the lands, when afterwards the possession was obtained by James Christian, in 1820, did not vest in the trustees. Doswell v. Buchanan, 3 Leigh 365.
    For the appellees, it was insisted: That the fact that James Christian was the unquestioned heir at law of George; that Reuben Norvell was his guardian and the guardian of the younger children; that without any assigned or assignable just cause, he abandoned the rights of the heir at law, and obtained the patent in the name of all the children; that in managing the controversies which grew out of this patent, the guardian Reuben Norvell, never disclosed the rights of the heir at law, and that with reference to ’ the pre-existing equitable rights of John and George Christian, the Court of Appeals has held this patent entirely inoperative, except so far as to constitute the patentees trustees for those who held the prior equitable rights, necessarily characterize the patent as fraudulent and void to every other purpose.
    Regarding this patent as thus fraudulent and void in its inception, nothing has subsequently occurred to give it effect. Prior to the deed of 1805, no written act is pretended which could sanction this patent, except the contract with Norvell in 1801. This contract does not confirm it in terms, nor does it confirm it by any fair implication. *On the contrary, that contract itself was a gross fraud. As it respects the younger children of George Christian, the contract does not profess to give any consideration for the relinquishment to them of James’ rights as heir at law.
    Prior to the deed of trust of 1805, no other act of James Christian is relied upon ; and the only things relied upon are parol dec • larations made without consideration and without solemnity.
    Every thing done and said by James Christian subsequent to the year 1805, is without authority, so as in any manner to affect the rights of the other cestuis que trust. By the deed of trust, he had divested himself of all title, legal and equitable, in the subject; had vested that title in others, and could neither do any thing’, nor say any thing to impair that title.
    But the acts themselves subsequent to 1805, which are relied upon to give efficacy to the .joint patent, are of very little import ; such as uniting in deeds, co-operating in sales, and standing by seeing the purchase money distributed to the younger children. These are acts which the trustees, who had assumed the control of his whole estate for the benefit of others,’ought not to have permitted, and must themselves be responsible for.
    This view of the case, seems to render almost superfluous a reference to authorities on the subject of this patent. We might refer to the case of Bryan v. Hyre, 1 Rob. R. 94, to prove that the title to real estate cannot be disclaimed by parol.
    And for the general doctrines governing the acts of persons standing in a confidential relation to each other, as principal and agent, guardian and ward, &c., we would refer to the case of Buckles v. Bafferty, 2 Rob. R. 292, and to the cases there collected in a note by the reporter at the end of his report of the case, p. 302; and to Morgan v. Morgan, 1 Atk. 488; Mellish v. Mellish, 1 Cond. Eng. Ch. R. 67; Goddard v. Carlisle, 4 *Cond. Exch. R. 60; Waller v. Armistead, 2 Leigh 11; Huguenin v. Baseley, 14 Ves. R. 273.
    The idea suggested, that this new patent is to be regarded either as a gift of three fourths of the land from James to his brothers and sisters, or as a grant to them for valuable consideration, is wholly un-sustained by the record. The patent was procured by the sole act of Norvell the guardian, in gross violation of his duty, without any apparent agency of James, or the other infants. And the younger children do not appear to have contributed one cent towards the expense, or to have incurred one moment of trouble about the matter.
    The authorities, therefore, to shew what is a valuable consideration, are misapplied.
    2d. Does the contract with Norvell of the 16th January 1801, or the deed alleged to have been made to him in 1820, confer any rights on him, or on those claiming under him?
    It is supposed that the fairness of the contract of 1801 cannot be doubted. This is a bold assumption, at least in the mouth of Norvell’s counsel. Its fairness is confidently denied. That the contract was fraudulent in fact, is proved by all the circumstances, and especially by the very terms of it; and that it was fraudulent and void in law, is proved by the relation of agent which Norvell then held towards the parties.
    Counsel are mistaken in supposing that the consideration for this contract was past and prospective expense and service.’ The contract itself shews that the only consideration was past expense and trouble in the suits in Court.
    As to the deed of 1820. It is a misfortune
    that this deed is not in the record. It would then be seen who are the parties to it, what were the lands conve3ed by it, and what the consideration. It is conceded, however, that its foundation was the contract of 1801, and that, therefore, only one half of the lands embraced by *the deed were to be paid for. And . enough does appear in the record, to shew that much more land was embraced by this deed than the defendant Norvell had any colour of claim to under the contract of 1801, had that contract been fair and lawful; if indeed under that contract he had any colour of claim to any part of the land embraced by the deed of 1820.
    Under these circumstances, the alleged deed of 1820 cannot be held as giving to Norvell even the legal estate. But if it gave that, he took the naked legal estate as trustee for the rightful owners.
    Does the deed of 1820 give any rights to those claiming under Norvell?
    The only party now before the Court of Appeals, preferring such claim, is Charles Mundy. To sustain that claim, he must shew that he is a complete purchaser, having obtained the legal title and paid the purchase money without notice of the equity. We submit that he has failed in all these things. He has not sufficiently pleaded that he was purchaser ^wthout notice; he has not proven that he has paid his purchase money; and he has not proven that the legal title was ever in Norvell, or is .now in him.
    3d. What was the effect of the deed of 1805? The first objection made to this deed is, that it does not pass the lands in controversy, because James Christian wás not in possession of them at the date of the deed, .but" that there was then an actual adversary possession of them. It is not necessary to criticise the language of this deed, it is as broad as can be, and certainly sufficient in law to convey all the rights legal and equitable, which James Christian could then convey by any form of words. We may admit that he could not convey lands then in the actual adversary possession of ’another, but we deny that there is a particle of proof in the record to shew that he was out of possession, or that any one else was in adversary possession of one acre of those *lands. But if there had been any actual adversary possession, so that the title did not pass at the date of the deed, and the trustee after-wards recovered the lands, or sold them and received the purchase money, it would not be in their mouths to allege that the lands never passed by the deed.
    It is urged against this deed that, on account of its vagueness and generality in the description of the property conveyed, even although duly recorded, it was not binding on purchasers without actual notice of it. It is submitted that this objection cannot be valid. Subsequent purchasers must take notice of deeds duly recorded; ,and in what respect is this deed less effectual as notice than if each particular tract of laud owned by James Christian were enumerated in it? This deed gives full notice that James Christian had no lands after its date; and that would be sufficient to prevent any one from taking a conveyance from him of any lands owned by him prior to the date of the deed of trust.
    As to this deed, we insist that it gave the trustees no authority -whatever to sell the land, not even for the payment of debts; unless under the direction of a Court of Chancery. And if the trustees had authority to sell if necessary for the payment of debts, that necessity did not exist. We insist that under it James Christian had not only no authority to convey, or sanction conveyances or improper applications of the purchase money, but that he had no interest as cestui que trust, which could be severed from the trust subject, so as to enable him to incumber it, or to alien it. The support provided for him was so blended with the other trusts for his family that it could not be withdrawn without injury to them.
    4th. Is there any error injurious to Watts’ ex’or in the adjustment of the balance of the accounts against him?
    It will be seen that the only error committed by the Court in respect to these accounts, is in overruling some *of the plaintiffs’ exceptions, of which those affecting ’Watts’ estate are the 11th, 12th and 13th.
    The 11th and 13th are to allowances made to Watts on account of the dower interest of his wife. We insist that that allowance was erroneous, because the widow had no title to dower. She seems never to have asserted such title; but on the contrary, in the old suit in the High Court of Chancery, she gave a deposition renouncing her claim to dower. And her administration account, never having been settled by her or her husband, there might have been very good reason why dower in the land should not have been claimed for her. Moreover, as to a great part of the lands in controversy, she never had any title to dower. Her first husband, George Christian, at the time of his death, had only an equitable title to the lands; and it is a well known principle of the common law, in force at his death in 1784, that a widow is not dowable of an equity. See 1 Cruise’s Dig. title 6, ch. 3, p. 189, pi. 12, p. 192, pi. 2S; 1 Lomax’s Digest, title 5, ch. 2, p. 85, pi. 16; Claiborne v. Henderson, 3 Hen. & Munf. 322.
    The 12th exception is for not charging the trustee with the value of the land in Buckingham sold to Hardwick, instead of charging the price for which it sold. We humbly submit, that as there was no necessity for the sale, and no authority for it in the deed; and as the purchaser was protected, merely on the g-round of want of notice, the trustee is bound to account for the fair value of the land. We think it fully proved that that value was at least double the .price for which the land was sold by the trustee; it having been resold very shortly after at an advance of about an hundred per cent.
    
      
      Cabell, P., was related to some of the parties. The cause was argued before Judge Daniel’s appointment.
    
    
      
       Deeds — General Description — Registry — Notice to Purchaser. — The principal case is cited in Carrington v. Goddin, 13 Gratt. 609, to the point that a deed conveying all the estate, both real and. personal, to which the grantor is entitled, is not void for uncertainty; though notice of such a deed would not affect a subsequent purchaser from the grantor, unless he had notice that the land purchased by him was embraced by the deed. The principal case is also cited for these two points in Chapman v. Railroad Co., 26 W. Va. 331; Campbell v. Fetterman, 20 W. Va. 414; W. Va. Trans. Co. v. Ohio River Pipe Line Co., 22 W. Va. 613. See 5 Va. Law Reg. 763. See generally, monographic note on “Deeds” appended to Fiott v. Com., 12 Gratt. 564.
      In Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 12 Sup. Ct. Rep. 246, it is said: “In jMundv v. Vawter, 3 Gratt. 518, relied on by appellant, the registry of a deed of ‘all the estate, both real and personal, to which the said James was in any manner entitled inlaworin equity,’ was held not to be notice in point of law to a subsequent purchaser of the existence of the deed, nor would notice in point of fact of such existence and contents affect such purchaser, unless he had further notice that the land purchased by him was embraced by the provision of the deed; ‘and the proof of such notice, whether direct or positive pr circumstantial and presumptive, must be such as to affect the conscience of the purchaser, and is not sufficient if it merely puts him upon inquiry, but must be so strong and clear as to fix on him the imputation of mala fldes.’ But the latter branch of this ruling was disapproved of in warren v. Syme, 7 W. Va. 474; and in Fidelity Ins., T. & S. D. Co. v. Shenandoah Val. R. Co., 32 W. Va. 244, 259, 9 S. E. Rep. 180, it is said that ‘whatever is sufficient to put a person on inquiry is considered as conveying notice; for the law imputes apersonal knowledge of a fact of which the exercise of common prudence might have apprised him. When a subsequent purchaser has actual notice that the property in question is incumbered or affected, he is charged constructively with notice of all the facts and instruments to the knowledge of which he would have been led by an inquiry into the incum-brance or other circumstance affecting the property of which he had notice.”
      Same — Same—What Passes — Bank Stock. — A deed which conveys all the grantors’ "property, real and personal,” embraces and conveys all their shares of stock in a national bank. Feckheimer v. Bank, 79 Va. 80, 85, citing Bullard v. Bank, 18 Wall. 589; Griffin v. Macaulay, 7 Gratt. 476; Mundy v. Vawter, 3 Gratt. 518.
      The principal case is cited in this connection in Lewis v. Glenn,. 84 Va. 965, 6 S. E. Rep. 866 ; Chapman v. Railroad Co., 26 W. Va., 331. See foot-note to Wickham v. Lewis, 13 Gratt. 427.
    
    
      
       Actual Notice — Proof of — Character of Proof. — The principal case is cited in Bridgewater Mills v. Strough, 98 Va. 728, 37 S. E. Rep. 290, and Vest v. Michie, 31 Gratt. 151, to the point that proof of actual notice must be such as affects the conscience of the party sought to be charged with such notice, and it is not sufficient if it merely puts him upon inquiry, but must be so strong and clear as to fix upon him the imputation of mala Mes.
      
      See foot-note to Vest v. Michie, 31 Gratt. 149. See also, Hord v. Colbert, 28 Gratt. 58; Newberry v. Bank of Princeton, 98 Va. 471, 36 S. E. Rep. 515; Ferguson v. Daughtrey, 94 Va. 308, 26 S. E. Rep. 822; Fischer v. Lee, 98 Va. 159, 35 S. E. Rep. 441.
      In Connell v. Connell, 32 W. Va. 319, 9 S. E. Rep. 252, it is said : “To charge a bona tide purchaser with notice, either express or implied, the notice must be something more than a vague statement that the vendor’s title is subject to an equity. It must be such information as to bind the conscience of the purchaser. Wade, Notice, sec. 29. A court of equity will not be astute' to charge a constructive trust upon one who has acted honestly, and paid a full and fair consideration without notice or knowledge. Wilson v. Wall, 6 Wall. 83, 90; Mundy v. Vawter, 3 Gratt. 518.’’
    
    
      
       Trustees — Authority over Trust Property, — The . principal case is cited in Fidelity Ins., etc., Co. v. Shen. Val. R. Co., 32 W. Va. 265, 9 S. E. Rep. 188, and Seborn v. Beckwith, 30 W. Va. 778, 5 S. E. Rep. 452, to the point that the trustee can only do with the trust property what the deed, either in express terms or by necessary implication, authorizes him to do. See Heth v. The R., F. & P. R. Co., 4 Gratt. 482, and note.
      
      Same — Same—Debts of One Beneficiary. — In Doswell v. Anderson, 1 Pat. & H. 194, it is said: “The property was conveyed in trust, for the joint support, maintenance and education of the grantor, Mrs. Apper-son and her children; and so long as the deed remains unimpeached, it would be wholly inconsistent with its provisions to sell, to pay the debts of one of the beneficiaries, the entire property. Hughes v. Pledge, 1 Leigh 443; Mundy v. Vawter, 3 Gratt. 525.” See foot-note to Nickell v. Handly, 10 Gratt. 336.
    
    
      
       Chancery Practice — Decree between Co=defendants. —Whenever a case is made out between co-defendants by evidence arising from the pleadings and proofs between the plaintiff and defendants, it is the right and the duty of the court of equity to decree between the co-defendants. Whitlock v. Gordon, 1 Va. Dec. 252, citing McNiel v. Baird, 6 Munf. 316; Allen v. Morgan, 8 Gratt. 60; Morris v. Terrell, 2 Rand. 6; Mandy v. Vawter, 3 Gratt. 518; Templeman v. Pauntleroy, 3 Rand. 434.
      The principal case is cited to this point in Blair v. Thompson, 11 Gratt, 448, 451, 452. See foot-note to Allen v. Morgan, 8 Gratt. 60.
    
    
      
       Same-Pleadings — Evidence.—A decree in equity must be restricted to the case made by the pleadings. no matter what the evidence may show. Por this well-settled rule, the principal case is cited in Potomac Mfg. Co. v. Evans, 84 Va. 721, 6 S. E. Rep. 2; Rorer Iron Co. v. Trout, 83 Va. 415, 2 S. E. Rep.713; Welfley v. Shen. I., L. M. & M. Co., 83 Va. 771, 3 S. E. Rep. 376; Kent v. Kent, 82 Va. 205, 211; Shen, Val. R. R. Co. v. Dunlop, 86 Va. 850, 10 S. E. Rep. 239; Edichal Bullion Co. v. Columbia Gold Min. Co., 87 Va. 641, 653, 13 S. E. Rep. 100; Roanoke Gas Co. v. City of Roanoke, 88 Va. 818, 14 S. E. Rep. 665; Staples v. Staples, 85 Va. 77, 81. 7 S. E. Rep. 199; Tarter v. Wilson, 95 Va. 25. 27 S. E. Rep. 818; Southall V. Parish, 85 Va. 410, 7 S. E. Rep. 534; Blair v. Thompson. 11 Gratt. 449.
      See monographic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615, and monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.
      In Gibson v. Green, 89 Va. 526, 16 S. E. Rep. 661, the court said: “It is, moreover, a general rule, universally recognized, that a decree has to be founded on the allegata as well as the probata of the case; otherwise the pleadings, instead of being a shield to protect parties from surprise, would be a snare to entrap them. Putnam v. Day, 22 Wall. 60; Mundy v. Vawter, 3 Gratt. 518; 1 Bart. Ch. Pr. 260.”
    
   BALDWIN, J.,

delivered the opinion of the Court.

It appears to the Court, from the record of the suit of John Christian’s devisee v. Christian, decided by this *Court in the year 1820, and reported in 6 Munf. p. 534, that George Christian, at the time of his death, by force of certain entries and surveys made for his father James Christian, 1st, the last will and testament of the said James, 1st, the division line agreed on between the said George and his brother John Christian, the death of his brother Charles Christian, and the last will and testament of his brother James Christian, 2d, had acquired the equitable title to the tract of 1036 acres of land, afterwards entered, surveyed and patented in the names of James Christian, 3d, Charles Christian, 2d, Elizabeth, afterwards the wife of James Murphy, and Sally, afterwards the wife of William Horsley; with the exception of so much of said tract of 1036 acres, (being part of a survey for 390 acres, and of another for 123 acres,) as was allotted by the said division between George and John Christian to the latter: and that the said George Christian, at the time of his death, by virtue of the last will and testament of the said James Christian, 2d, had also acquired the title, both legal and equitable, to the tracts of 253 acres, 250 acres, and 400 acres, patented to the said Janies, 2d, and adjoining the said tract of 1036 acres.

And the Court is further of opinion, that the said George Christian having died intestate in the year 1784, all his real estate, including his equitable interest in the said tract of 1036 acres, and his legal and equitable right to the three adjoining tracts aforesaid, descended to the said James Christian, 3d, who was his eldest son, and as such, under the law of descents then existing, his sole heir at law; that the said patent for 1036 acres, obtained after the death of the said George in the names of all his children, by the procurement of their guardian Keuben Norvell, was in derogation of the right of the said James, 3d; and that the legal title conferred by said patent, to the extent of the equitable right which so descended from said George, must be ^regarded as held in trust for the sole and exclusive benefit of the said James, 3d, notwithstanding any parol disclaimers on his part of his exclusive right.

And the Court is further of opinion, that the deed of the 17th of June 1805, executed by the said James Christian, 3d, to Stephen Watts and James Murphy, conveying to them as trustees, for the purposes therein mentioned, “all the estate, both real and personal, to which the said James was in any manner entitled at law or in equity,” notwithstanding its want of designation and description of the lands of said James intended to be conveyed, was good and valid between the parties, embraced the rights of said James in the said tract of 1036 acres, and to the three adjoining tracts aforesaid acquired by descent from the said George Christian his father; and, if the operation of such a deed could have been affected in regard to those lands by an adversary possession thereof, or any part thereof, at the time of its execution, there was in point of fact no such adversary possession.

But the Court is further of opinion, that the registry of the deed just mentioned was not, because of the want of designation and description of the lands intended to be conveyed, notice in point of law to a subsequent purchaser from the grantor of the existence of said deed; nor would notice in point of fact of such existence and contents affect such purchaser, unless he had further notice that the land purchased by him was embraced by the provisions of said deed; and the proof of such notice, whether direct and positive, or circumstantial and presumptive, must be such as to affect the conscience of the purchaser; and is not sufficient if it merely puts him upon en-quiry, but must be so strong and clear as to fix upon him the imputation of mala tides.

And the Court is further of opinion, that no power whatever was conferred by the said deed of the 17th of*June 180S, upon the trustees therein, to make sales of the lands thereby conveyed, whether for payment of the debts of the grantor, or any other purpose, however urgent the necessity for such sales; and that in point of fact, no such necessity has ever occurred: and therefore, that purchasers from said trustees acting in that character, could acquire no title from them to any of the lands conveyed by said deed.

And it appears to the Court, that the tract of 336. acres purchased by James Dillard, was part of the aforesaid tract of 1036 acres, and of that portion thereof, the equitable title to which descended as aforesaid, ' from George Christian to James Christian, 3d; his heir at law; and that the said Dillard’s purchase was from the said James, 3d, Charles Christian, 2d, Horsley and wife, and Murphy and wife. And it further appears, that the said Stephen Watts and James Murphy, the trustees in said deed of the 17th of June 1805, did in that character unite with James Christian, 3d, his brother and sisters, and the husbands of the latter, in their deed of conveyance to said Dillard of the 17th of December 1807; whereby the said Dillard not only had notice of the existence of the said deed to the trustees, but that it conveyed to them, for the benefit of their cestuis que trust, the interest of James Christian, 3d, in the land he the said Dillard, was ’purchasing; and he was consequently bound to know that said trustees were not, by the provisions of said deed, invested with the authority or power to make any sale or conveyance of the interest of their cestuis que trust, so derived from the said James, 3d.

But it does not appear that the said Dillard had notice of the extent of the interest in said land owned by the said James, 3d, and by him conveyed to said trustees by his deed aforesaid. On the contrary, the Court is well satisfied that the said Dillard had reasonable grounds for believing, and did in good faith believe, that *the interest of James Christian, 3d, in said land, at the date of his deed to the trustees, was not exclusive, but only to the extent of one undivided fourth part thereof. All the circumstances of the case tended to warrant that belief. The said tract of 1036 acres was entered, surveyed and patented, in the joint names of James Christian, 3d, his brother and sisters, through the agency of their guardian. That joint title was asserted for them jointly, during the whole controversy with John Christian and his devisee. The latent equity of James Christian, 3d, to exclude his brother and sisters from participation had never been asserted for or by him. On the contrary, he claimed only an undivided interest with them, united with them in the joint sale and convejmnce to Dillard, and suffered them to receive equal proportions of the purchase money; and this with the knowledge and assent of the trustees Watts and Murphy, who set up no exclusive interest in their cestuis que trust, but also united in the joint conveyance to Dillard.

The Court is therefore of opinion, that the said James Dillard must be treated as a purchaser with notice of the rights of the cestuis que trust in the deed of the 17th of June 1805, only to the extent of one undivided fourth part of the land purchased by him as aforesaid; and that Vawter, the trustee substituted for said Watts and Murphy, is entitled to recover against his representatives, for the purposes of the trust, such undivided fourth part of said land, and no more, together with the rents and profits which have accrued upon such undivided fourth part only. And it is no good objection to such recovery for the purposes of the trust that James Christian, 3d, one of the cestuis que trust, united in the sale to said Dillard; his interests as a cestui que trust, being inseparably connected with those of the other cestuis que trust, and therefore indispensable to the enjoyment by them of their interests.

*And the Court is further of opinion, that a recovery against Dillard’s representatives, as aforesaid, entitles them to recover back one fourth of the purchase money paid by him, with interest thereupon ; and though they would have a remedy at law therefor upon the joint warranty of the grantors in the deed; yet as the relief to which they are entitled arises out of the decree against them, and. upon the pleadings and proofs between the plaintiffs and said grantors, such relief is within the province of equitable jurisdiction; and is the more proper by a decree over in their behalf, that it can be given with a view to the equities amongst the grantors themselves. The relief to Dillard’s representatives arises out of the loss of the undivided fourth of the property which James Christian, 3d, undertook 1o sell, and which he was enabled to sell by the concurrence of the trustees Watts and Murphy. It is equitable, therefore, that the decree for reimbursement should be primarily against the said James, 3d, and the representatives of the said Watts and Murphy; with the reservation of decreeing thereafter amongst them according to their relative equities; and if the decree against them should prove unproductive, of enforcing the liabilities upon the warranty in the deed, of Charles Christian, 2d, and William Horsley.

And it further appears to the Court, that the tract purchased by Stephen Watts, was also part of the aforesaid tract of 1036 acres, and of that portion thereof the equitable title to which descended as aforesaid from George Christian to James Christian, 3d, his heir at law ; and that the said Watts’ purchase was from the said James, 3d, Charles Christian, 2d, Horsley and wife, and Murphy and wife; who conveyed to him by their deed of the 8th of November 1809. And though it does not appear that the said Watts in making said purchase was actuated by any fraudulent intent, yet the land so purchased by him being embraced in the deed of conveyance *from James Christian, 3d, to the said Watts and Murphy, as trustees, it was utterly incompetent for the said Watts to acquire any title thereto to the prejudice of his cestuis que trust; and his said purchase and the deed of conveyance to him must be treated as wholly nugatory. Nor can his voluntary gift and conveyance to his son Henry H. Watts avail any thing against the rights of said cestuis que trust, and the claim, for the purposes of the trust, of the substituted trustee, who must recover the said tract of land against the representatives of said Henry H. Watts, together with the rents and profits - which have accrued therefrom.

And the Court is further of opinion, that the recovery against the representatives of Henry H. Watts, as aforesaid, entitles them to the benefit of the provision for his indemnity, made in the codicil to the will of the said Stephen Watts ; the proper measure of which is the value of the land lost, the costs and expenses incurred in their defence and the amount of the rents and profits to which they are subjected.

And the Court is further of opinion, that the relief to the representatives of said Stephen Watts, in consequence of the loss of the land so purchased by him, cannot be based upon the joint warranty in the deed of his vendors; the effect of which would be to make each, including one of his ces-tuis que trust, liable for the consideration received by all, upon a contract utterly null and void, according to the rules of equity; and upon a warranty in a deed which ought to be wholly vacated. Whereas the principle upon which the representatives of said Watts are entitled to any relief is, that the contract between him and his vendors was founded upon a mutual mistake in the state of the title, in supposing that all the children of George Christian had an equal interest in the subject; when in truth James Christian, 3d, was, at the time of his deed to the trustees, the exclusive equitable owner. The representatives of the said *'Stephen Watts must, therefore, recover back separately from each of his vendors, James Christian, 3d, Charles Christian, 2d, James Murphy and William Horsley, or their representatives, so much of the purchase money as was paid by him to each respectively, with interest thereupon.

And the Court is further of opinion, that in the recovery of rents and profits, as aforesaid, which have accrued since the deaths of said James Dillard and Henry H. Watts, respectively, regard must be had to the nature of the representative character in which those rents and profits were received; so as not to throw upon the personal representative such as are properly chargeable to the heirs or devisees.

And the Court is further of opinion, that by the terms, true intent and meaning of the contract of the 16th of January 1801, between Reuben Norvell of the one part, and James Christian, 3d, and Elizabeth Christian and Stephen Watts, in behalf of Charles Christian and Sally Christian, of the other, the said Norvell, for his services in conducting the controversy with John Christian, was to receive, in the event of success, a moiety of so much of the aforesaid tract of 1036 acres, as was separated for the said John Christian, from the rest of that tract, by the division line already mentioned, and no more ; and the same not having been recovered from the said John Christian, or his representatives, but on the contrary their right thereto having been established by the decision of this Court above referred to, the said Norvell had no well founded claim arising out of that contract, to any part of the lands to which the title of George Christian was established, as above set forth. And those lands having descended to James Christian, 3d, his sole heir at law, passed by his deed of conveyance of the 17th of June 1805, to the trustees therein for the purposes of the trust; and the rights of the cestuis que trust therein could not be affected by the ^subsequent deed of conveyance of 1820, from James Christian, 3d, and the other children of George Christian, to said Norvell; under which the latter claims a large portion of the lands to which the title of George Christian was established as aforesaid, embracing the aforesaid tracts of 250, 253 and 400 acres, patented to James Christian, 2d, adjoining the aforesaid tract of 1036 acres, and a moiety of the Stonewall tract, recovered from Boothe and Staples; in regard to which last, the rights of the parties have not yet been adjudicated by the Circuit Court. The said Norvell could have acquired no title under that deed, unless he was a purchaser, without notice of the exclusive right by descent of James Christian, 3d, and his conveyance thereof by his deed of the 17th of June 1805, to the trustees therein: And the Court is satisfied from the pleadings and proofs that he had such notice.

The Court is therefore of opinion, that the rights of the said cestuis que trust must prevail against the pretensions of said Norvell; and it would be proper that the substituted trustee should recover against him, for the purposes of the trust, the aforesaid tracts of 2S0, 253 and 400 acres, patented to James Christian, 2d, but for the intervention of the claims of others. But the claims of said cestuis que trust cannot prevail against bona fide purchasers and incumbrancers, from said Norvell, without notice. And the three tracts last mentioned appear to be embraced in a deed of trust executed by said Norvell, for the security of creditors: a part of one of them is claimed by James London’s ex’or, as having been purchased by his testator from said Norvell: another of them, that of 253 acres, appears to be in the possession of the representatives of Henry H. Watts: and Charles Mundy claims a parcel of 180 acres of land, as purchased by him from Norvell’s trustees. But the deeds to London and Mundy, and the deed to Norvell himself, are not in the record; nor does the record ascertain whether *Mundy’s purchase is part of either of the three tracts aforesaid, or whether it is part of some other, if any, of the lands embraced in the deed to Norvell; nor under what title, if any, the representatives of Henry H. Watts, hold the said tract of 253 acres. The causes, therefore, were not in a condition for a decree by the Circuit Court in regard to Norvell, nor for a decision upon the rights of those claiming under him; all of whom ought to have been made parties; and proceedings ought to have been had by a reference to a commissioner, a survey, and other appropriate means, if requisite, to ascertain the state of the title claimed, and possession held under said Norvell. If it should be ascertained by proper proceedings, that the purchasers and incumbrancers from Norvell are entitled to protection against the cestuis que trust in the deed of the 17th of June 1805,, then the relief of the substituted trustee, for the purposes of the trust, against Norvell, must be for the value of such of the lands embraced therein, and conveyed to him as aforesaid, as cannot be recovered for said cestuis que trust.

And the Court is further of opinion, that the causes were not in a condition for a decree over by the Circuit Court in favour of Norvell against his vendors, if to any he be entitled; inasmuch as his bight to relief against them is dependent, in one aspect, upon the recovery against him for the cestuis que trust of the lands conveyed to him as aforesaid; and, in another, upon the recovery for them and the actual payment by him of the value of said lands: and of the terms of the contract between him and his vendors, assumed by the commissioners, the evidence is not in the record.

And the Court is further of opinion, that so far as the estimated price between Nor-vell and his vendors of the lands conveyed to him by them as aforesaid, consisted of his claim to a moiety of said lands for his

services in conducting the controversy in relation thereto, he is entitled *to no relief in any event; his claim thereto under his agreement of the 16th of June 180Í, being without foundation ; and the allowance thereof, in the said conveyance to him of 1820, if not fraudulently procured, which the Court deems it unnecessary to decide, being merely gratuitous.

And the Court is further of opinion, upon the authority of the case of Claiborne v. Henderson, 3 Hen. & Munf. 322, that as the law stood at the death of George Christian, in the year 1784, a widow was not dowable of an equitable estate; and consequently that Mrs. Watts, the widow of said George Christian, had no right to dower in the land sold to Dillard, nor in the land purchased by her second husband Stephen Watts as aforesaid; and therefore that the said Stephen Watts ought not, in the settlement of his trust accounts, or in any other mode, to be allowed in right of his said wife, a third of the rents and profits of those lands.

But in regard to the lands to which. George Christian was entitled by devise from his grandmother Mrs. Whitney, he having died seized of the legal estate thereof, his said widow was entitled to dower in the same; and though there was no formal-assignment thereof, yet the said Watts having received the rents and profits of those lands while unsold, and the purchase money's thereof when sold, and being now held by the assignee of the heir at law to a strict accountability therefor, he ought to be allowed, in the settlement of his trust accounts, one third of said rents, and one third of said purchase moneys, during the life of his wife, on account of her said dower; .though they may not have intended, but on the contrary disclaimed the intention of asserting said right to dower, while his management of the trust subject was unimpeached.

And the Court is further of opinion, that the said Stephen Watts ought not to be allowed, in the settlement of his trust accounts, the price of the tract of *land purchased by him from John Loving, and by said Watts conveyed to said James Christian, 3d, by his deed of the 24th of June 1816, unless it shall appear that said purchase was with or for the trust fund, and can be made available for the purposes of the trust. If the said land was improperly' conveyed . to the said James, 3d, individually, and he still holds the same, so that by the proper decree, it can be secured as a part of the trust subject for the purposes of the trust, in that event, and in that only, ought the said Watts to receive a credit vrith the trust fund for the price aforesaid.

And the Court is further of opinion, that the said Stephen Watts is properly chargeable with the price of the land sold to Hard-wick, and the price of the land sold to North, but not with the supposed sacrifices at those sales; no such case having been made by the pleadings, whatever may be the sufficiency of the evidence; which the Court deems it unnecessary to consider.

And the Court is further of opinion, that a trustee accountable for rents received by him, is properly chargeable with interest thereupon; and therefore, in the settlement of the trust accounts of the said Stephen Watts, it is not error to his prejudice to apply his disbursements to the discharge of such rents, and so leave other debts against him to carry interest.

It is therefore adjudged, ordered and decreed that the decrees of the Circuit Court, so far as they conflict with the foregoing opinion, whether to the prejudice of the appellants or the appellees, be reversed and annulled, and the residue thereof affirmed: with separate costs to the appellant or appellants on each separate appeal. And the causes are remanded to the Circuit Court, to be further proceeded in, according to the principles of the foregoing opinion and decree: with a direction that the plaintiffs in the suit brought by Vawter, trustee, and others, be required to amend their bill, by making the said James Christian, 3d, a defendant thereto.  