
    Patsey Henry and Others v. John Doctor and Others.
    "Where H. conveys to B. and Ms heirs (all residents in Virginia) land in Ohio upon trust, a sale made by another trustee substituted for B. after Ms death by the Court of Chancery in Virginia, is invalid.
    In such case the land descended to B’s heirs in trust, and the trust may be enforced against them, or by the Ohio courts.
    It would be difficult, since Wills v. Cooper, 2 Ohio, 126, to sustain an authority to convey a legal title .to land, except derived from its owner, or from a court of territorial jurisdiction
    
      Bill in Chancery. From Warren. The bill is filed by the widow and heirs of Moses Henry, claiming nine hundred and twenty-one acres and three quarters of land in Warren county, against the heirs, etc., of William R. Buck. In 1821, Moses Henry and wife, residents of Virginia, conveyed the tract of land in dispute and certain personal property to William R. Buck and his heirs, also of Virginia, in trust, to sell, and pay certain debts, and appropriate the balance on certain conditions. Both Moses Henry and Buck died soon after the deed was made, without execution of the trust by a sale of the land, both leaving heirs at law.
    In 1828, George Baily, one of the beneficiaries of the trust, and certain creditors, instituted proceedings in the superior court of chancery, in Winchester district, Virginia, representing the death of *the trustee, and praying the appointment of another to complete the execution of the trust. Patsey Henry, widow of Moses, and one of the creators of the trust, and to whom the balance of the money, after paying the debts, belonged, and the heirs of Buck, were not parties to these proceedings. One of the heirs of Henry was served with process, the others were made parties by publication, and the matter was taken as confessed by all. Upon hearing, the Chancellor appointed William R. Ashby a trustee, instead of Buck, to complete the execution of this trust, by a sale of the lands in Ohio. The defendants ■claim title under a sale made by Ashby. The plaintiffs pray that the defendants, who claim various interests under Ashby, may be held their trustees ; to set aside all the proceedings under him as substituted trustee ; and to be let in to redeem the land, by payment of the debts under the provisions of the trust deed.
    J. Milton Williams, for plaintiff,
    argued at length, examining the authorities and denying the power of the Virginia court of chancery, to appoint a trustee for real estate in Ohio, etc. etc. He cited the following authorities ; Jer. Eq. Ju. 20, 24, 26, 162 to 167; 4 Kent C. 304, 5, 6 ; 1 Cruise Dig. 524, 5, 6, 539, 481; 3 do. 464 ; 3 Mass. 573; 15 do. 468, 2 Blk. C. 328, 334; Coop. Eq. Pl. 33, 4; Doolittle v. Lewis, 7 Johns. Ch. 45, 47 ; Harrison v. Story, et al. 5 Cranch, 302 ; Lessee of M’Culloch v. Reddish, 2 Ohio, 234, 5 ; Rogers et al v. Allen, 3 Ohio, 488, 9 ; Watts et al v. Waddle, 6 Pet. 396 to 402 ; Nowler v. Coit. 1 Ohio, 519; Wills v. Cooper, 2 Ohio, 124; Adm’s ofWinthrop v. Huntington and wife, 3 Ohio, 327 : St. Clair v. Smith and Milliken, 3 Ohio, 364, 5 : Story Conf. of L. 300, 437, 453, 463, 465, 467, 358, 416; 29 Ohio, L. 25, 6 ; 1 Ch. St. 685 ; 2 do. 786, 1130, 1277 ; 3 do. 1596.
    
      G-. J. Smith, for defendant Doctor,
    contended that the trust did not lapse on the death of Buck, the trustee, and that chancery had power to supply the trustee, 2 Ohio, 131 ; 2 Ves. 561; 16 Ves. 27 ; 4 Kent C. 338. Buck being a mere naked trustee, having died before executing the trust, the Virginia chancellor, where the parties resided, had power to appoint Ashby trustee, and his sale and conveyance to Doctor in executing the trust is valid. 7 Johns. Ch. 48 ; 6 Cranch, 157, 160; Judge Sherman, 2 Ohio, 131 ; 3 Dal. 370 note; 3 Ves. 447; 1 Bos. and Pul. 133; 1 Ves. 144; 2 Vern. 494; 1 do. 419, 75. Mere-irregularity in the Virginia proceedings will not vitiate them. Though erroneous, they are good *until reversed, and they can not be-impeached' collaterally. 7 Ohio, 198; 3 Ohio, 257, 325, 561, 364; 4 Ohio, 130 ; 2 Pet. 163; 2 Bin. 46. In cases of fraud, trust, or contract, chancery has jurisdiction wherever the persons are found. 6 Cranch, 157, 8, 9 : 1 Vern. 75, 419; 2 Vern. 494; 7 Johns. Ch. 45 ; 4 Kent C. 338 ; 8 Ves. 547.
   By the Court,

Lane, C. J.

Much of the testimony in this case consists in an attempt to prove and disprove fraud in the management of the property. It will be unnecessary for us to examine this, if we find that Ashby, the substituted trustee, had no authority to make sale.

Whether the courts in Virginia could confer any power, under any condition, to convey lands in Ohio, is a question which we need not now examine, although it would be difficult, after the case of Wills v. Cooper, 2 Ohio, 126, to sustain an authority to convey a legal title to land, except derived either from the owner, or from the court of territorial jurisdiction.

In this case, by the death of Buck, the land descended to his heirs. Neither they, the legal owners, nor Patsey Henry, who was the ultimate cestui que trust, with the right of acquiring a title to the land from the trustee by payment of the incumbrance, were parties. Without examining, then, how far the hebs of Henry were affected by these Virginia proceedings, it is plain that Buck’s heirs and Mrs. Henry are not concluded. The legal title still remains in Buck’s heirs, and Mrs. Henry may enforce the execution of the trust, either by the trustees she united in selecting, or by the courts of this State ; or she may redeem the land under the provisions of the deed. The sales, therefore, under the proceedings in Virginia, are held entirely void and set aside, but a compensation should be made to the purchaser,, under the principles of our occupying claimant law.

The caséis referred to a master to take and state, 1. An account of the amount of debts secured by the trust which remain unpaid, with their present holders. 2. The value of the improvements. All further questions are reserved to the further hearing.  