
    Daniel E. Huger, and others, vs. Isabella I. Huger, and others.
    Executors having a general power to sell, are not restricted to any particular mode of selling. They may sell either at public or private sale, and without advertising.
    Executors may purchase, at their own sale, either real or personal estate ; and the giving of a bond to the Ordinary, as directed by the Act of 1839, is not essential to the validity of the purchase.
    The Court, when applied to, will not confirm such a purchase, until the directions of the Act áre complied with.
    BEFORE DARGAN, CH„ AT CHARLESTON, JUNE SITTINGS, 1856.
    Dargan, Oh. The plaintiffs state, that they are the executors of the last -will and testament of their father, the' Hon. Daniel Elliott Huger, late of Charleston; that the said testator, by his last will and testament, bearing date the 25th of May, A. D. 1850, after devising and bequeathing to the mother of the plaintiffs, and wife of the testator, Mrs. Isabella I. Huger, for life, a house with furniture and contents, and certain negroes, and. an annuity during her life of three thousand dollars, in lieu of dower and of all other claims, and after making some other particular dispositions, gave all. the residue of his estate to. be equally divided into nine parts, among his eight children and his grandson, Joseph Manigault, on the condition, however, that the said shares should be equalized by .charging the several devisees with the advancements received in his lifetime, according to an estimate and statement thereof made by himself, and set forth in his will as a part of the same; and that the said testator, by another clause of his will, directed as follows: “ If it be thought best by my executors to sell any, or the whole of my estate, they are hereby authorized to do sothat the said testator appointed the plaintiffs, by the description of his four sons, the executors of his will; that afterwards, on the 21st August, 1854, the said testator departed this life, leaving the said will, and certain codicils, afterwards executed, not interfering with the general dispositions of his will, in full force; that the plaintiffs have duly proved the said will and codicils, and that they have undertaken the burden and execution thereof.
    The plaintiffs further state, that the testator was possessed of two large plantations, one on Savannah River and the other on the Wateree, and of many negro slaves, the greater part on the Savannah River plantation, and owed few debts, besides certain bonds, &c. They state the parties who are interested in the estate under the will, and charge, “ that the separation of the testator’s estate into so many parts or shares, as to make an equal apportionment among the parties interested, was clearly impracticable, and that the exercise of the power of sale granted to the executors was a necessity that was clearly foreseen by the testator.” The plaintiffs state, that for the purpose of making distribution according to the provisions of the will, they made sale of the whole real and personal estate of the testator, and describe with great minuteness the particulars of the sale, and the manner in which it was conducted. The sale was made on the 8th January, 1856, at public auction, on terms not necessary here to be particularly noted. The Savannah River plantation, with all the negroes thereon (one hundred and forty-two in number), stock, and other things of the nature of personal estate, belonging to the premises, including seed rice, not exceeding four thousand bushels, were sold as a whole (“ in the block,” as some of the witnesses expressed it) for the sum of one hundred and eighty-eight thousand dollars. This property was sold by Messrs. Capers & Heyward, brokers, and was bid off at the aforesaid sum of one hundred and eighty-eight thousand dollars, by Allen Smith Izard (who is one of the defendants, and whose wife is one of the devisees), he being at the auction the only bidder. The plaintiffs state, that the said Allen Smith Izard bid for the property in behalf of himself and of the plaintiffs, Joseph Allston Huger and Arthur Middleton Huger, who are willing to become the purchasers of the property at that price, and are ready to comply with the terms of sale, and have taken possession of the property, which could not be left in a state of suspense without great loss. In like manner, the "Wateree plantation, negroes, stock, &c., were offered at public auction at the same time, and were bid in by the plaintiffs at sixty thousand dollars, who say that they are willing to account to any of the parties interested, for his or her share, at that price, or to retain the said property for the benefit of such of the parties as may be disposed to unite in waiting for a better sale for the benefit of all interested. The plaintiffs pray for a confirmation of the sales, for an account, &c.
    The plaintiffs further state, that between the testator and his wife (Mrs. Isabella I. Huger, one of the defendants) there was a post-nuptial settlement, by which many negroes were conveyed by the testator to the Hon. Henry Middleton, in trust, for husband and wife, during their joint lives, for the use of the survivor for life, and after the death of the survivor, for the issue of the marriage. They further state, that Mrs. Binkey Huger (the testator’s mother), by her last will, dated 16th October, 1786, devised all her estate to her mother, Sabina Elliott, and to Ool. Lewis- Morris, Charles Cotesworth Pinckney and Thomas Pinckney, in trust, to receive the rents and profits during the minority of her children, &c., and to divide the principal among them at the age of twenty-one years, in such proportions and at such times as she, by instructions in writing, under her own hand, should limit and appoint. That Col. Lewis Morris, Charles Cotesworth Pinckney, and Thomas Pinckney, survivors of Sabina Elliott, reciting certain instructions of Mrs. Huger to the said trustees, conveyed the moiety of a tract of land called Accabee, and the whole of a plantation called Euhaw, to the said Daniel Elliott Huger, for the term of his natural life, and after his decease to such lawful issue of him, the said Daniel Elliott Huger, as may be living at his death. The plaintiffs further state, that the testator sold the Euhaw plantation, and afterwards, by indenture dated 12th January, 1821, between the testator of the first-part, and James R. Pringle of the second part, after reciting the.deed of Mrs. Huger’s trustees, and the sale of the Euhaw plantation, conveyed, to the said James R. Pringle a tract of land containing three hundred and eighty-one acres, being a part of the Savannah River property, in trust, for the same trses as the Euhaw plantation was subject to.
    The plaintiffs charge, that the provisions of the testator’s . will, and of his said deed of post-nuptial settlement, and the will of his mother, Mrs. Binkey Huger, and the deed of the trustees, executing the appointment as to Euhaw plantation, and the testator’s own deed, conveying in trust to James R. Pringle a portion of the Savannah River plantation, present a case .or cases of election, and that the devisees and legatees of Daniel E. Huger’s will cannot take under the provisions thereof, and also under the aforesaid deeds and instruments, which are inconsistent therewith. The plaintiffs further charge, that all the parties interested are willing to take under the provisions of the will, and do elect to take accordingly, and they pray for a decree of the Court to this effect. The last allegation is true. All the defendants have, in fact, elected to take under the will, as appears in their several answers. And there is no difficulty on this point.
    As to the validity of the sale (which is the only matter controverted in this case) all the parties in interest acquiesce, and are willing that the sales, made by the executors, should be ratified and confirmed, with the exception of James W. Wilkinson, who acts for himself'and his wife, and Joseph Mani-gault, a devisee, and the grandson of the testator.
    
      These parties object to tbe validity of tbe sale, and seek to have it set aside on various grounds, among tbe most prominent of wbicb are these: that the sale was irregularly and unfairly conducted; that the executors could not become purchasers at their own sales; and that a full and adequate price was not obtained.
    The facts relied on, to show that there was irregularity and unfairness in the sale, are these: — 1. Because the negroes sold were not advertised for sale at all on that day (day of sale). 2. Because the Savannah River place was sold as a whole, and not, as advertised, in two lots. 3. Because the lands and ne-groes were sold together. 4. Because the terms of the sale, as • to the credit allowed, varied from those advertised. The facts here assumed as the basis of the objection, are substantially true. The slaves were not present at the sale; they never were advertised for sale at auction. On the 5th December, the lands were advertised to be-sold at auction on the 8th January following. A description-of the property, with the terms of sale, was set forth, and, by way of postscript, was added as follows : “ The above may be treated for at private sale, together with about one hundred and forty negroes, now on and accustomed to the plantation.” This related to the Savannah River place. The same form of advertisement was published as to the Wateree place, with a similar postscript: “ The above may be treated for at private sale, together with about seventy ne-groes, now on and accustomed to the plantation.” Erom this, and other circumstances, it is sufficiently obvious," that, at the time the sale was first advertised, the executors did not contemplate selling the negroes at public auction. But, in my judgment, neither this, nor the other facts relied on, though true, are sufficient to affect the validity of the sale. -The executors were not bound to any form or mode of making the sale. Though they had advertised to sell by auction, they were not bound to carry out that plan, and vice versa. Their authority was full and complete as that of the testator himself, or any other proprietor. They were, as to the matter of the sale, the proprietors. There was no restriction of their power, save only a condition implied by law, that they should obtain a fair and full price, or, failing in that, to show that they acted in good faith, and performed their trust as well as they reasonably could have done under the circumstances.
    The arrangements which the executors made in respect to the disposition of “Jackey, the Key-keeper,” (a faithful and favorite servant of the testator,) gave much offence to some of the parties. This was the source of much of that excitement and intensity of feeling which have pervaded these proceedings. The arrangements that were made on this subject were clearly within the discretion and competency of the executors. They had unlimited power as to the manner of selling this negro, as they had in respect of the other property. And if they sold him for a fair price, and accounted for the same, it was all that could be required of them. They had no other trust or duty to fulfil which the law recognizes.
    I come now to consider whether an executor can become a purchaser at his own sale. This is an abstract question of lawj and one on which, in times past, there has been much discussion, and on whichVthe decisions of our Courts have oscillated to a great extent. As a general rule, it is well settled, that a trustee or agent to sell cannot become a purchaser at his own sale; and it is equally well settled, that such sale will be set aside in this Court, on the application of any party whose interest or desire it is to have it vacated. And this will be done without any reference to the question, whether the sale has been fairly conducted, or whether a full and fair price has been obtained. Such was the conclusion of Chancellor Kent, in Da/uoue vs. Fanning, 2 John. Ch. 251, upon a review and masterly analysis of the English authorities, and many of the American decisions. The principle was applied with great rigor in this State, in Fx parte Wiggins, 1 Hill, Ch. 353. In this case, a bill was filed by the assignees of Baker Wiggins, against bis beirs and creditors, to marshal bis assets, and the Court ordered a sale of bis real estate bj the Commissioner, under the superintendence of the assignees, who were directed to join in the conveyance to the purchaser. At this sale, E. B. Wiggins, one of the assignees, became the purchaser of the whole estate, and afterwards filed his petition for a confirmation of the sale. The Commissioner, to whom it had been referred, reported that the sale was fairly conducted — that the purchase was bona fide, and for an adequate consideration— and that the purchaser was a creditor of Baker Wiggins. The Chancellor who heard the cause dismissed the petition. He held that the purchase could neither be set aside nor confirmed*/ without a knowledge of the wishes of the other persons interested, who were not parties to the proceeding. That according to decided cases, a trustee to sell cannot purchase, whether he is a party interested or not. If he purchases, the sale will be set aside, or he will be held to the purchase, as of course, at the option of the parties interested; and as the rule forbidding such purchases is one of policy to prevent fraud, when there is no possibility of proving it, the inquiry is never made, whether the sale is advantageous or not. This decree, on appeal, was affirmed at December Term, 1833. It was certainly a stern application of the rule, and it has been followed in many subsequent cases. Farr vs. Sims, Eich. Eq. Cases, 138; Zimmerman vs. Harmon, 4 Eich. Eq. 165 ; Sollee vs. Croft, 7 Eich. Eq. 34. As regards persons coming under the class of technical trustees, or simple agents to sell, I apprehend that there is no principle of law more solemnly and irrevocably settled in South Carolina.
    But whether executors and administrators, though in many points of view regarded as trustees, come under the operation of this principle, or constitute an exception, has been a much debated question in our Courts, and one that has never yet been fully solved or settled, unless it has been 'by a legislative Act, which will be hereafter referred to and commented on. From the earliest period of our judicial bistory, there seems to have been fluctuations in the decisions. But it is somewhat remarkable, that the earliest reported decision on this subject, and the last, strongly support the doctrine, that an executor or administrator may buy at his own sale, under certain conditions as to fairness. In Drayton vs. Drayton, 1 Eq. Eep. 557, 567, decided in 1797, Chancellors Mathews and Eutledge, in speaking of a purchase made by one of the testator’s executors, say, “ As to G-. Drayton’s purchase at the sale of the testator’s estate,, we consider it in the same light as that of any other individual. There is no law which prohibits an executor purchasing (without fraud) any property of his testator at open and public sale.”
    In Stallings and wife vs. Foreman, administrator, 2 Hill, Chs 401 (decided in 1835), the judgment of the Court, after an elaborate review of all the South Carolina cases, is, “ that an executor or administrator is not to be regarded as a mere trustee to sell; that his purchase at his own sale, when fairly made in pursuance of the will, or under an order of the Ordinary, in a case of which he has jurisdiction, for the true value of the goods and chattels so sold, is good, and must be supported both in law and equity.”
    The intermediate cases were decided variously. In Perry vs. Dixon, 4 Eq. Eep. 504, note, the Court was divided on this question in such a manner, that the result could not be regarded as authoritative on either side. In Grenshaw vs. Mc-Morris, 1 McC. Ch. 252, 260 (A. D. 1824), the rule against the right of the executor was applied. In Trimmier vs. Trail, 2 Bail. Eep. 480, the decision was, that an administrator having an interest in the estate, might purchase to the extent of his interest, and a purchase by an administrator not entitled to a share of the estate, is not necessarily void, but may be confirmed or set aside at the option of the parties interested in the estate. In Britten and wife and Gibson and wife vs. Johnson, executor, the purchase by the executor of slaves, at his own sale, was set aside without inquiring as to the fairness of the sale, or tbe adequacy of. the price. From this part of the case there was no appeal.
    Thus stood this question at the enactment of the declaratory statute of 1839, 11' Stat. 94. Stallings vs. Foreman was at that time the latest judicial exposition of the law upon the subject; and the Legislature adopted the principle of that decision, with one additional feature, which is a great improvement, and which, in my judgment, renders the rule complete and perfect. It requires the executor, or administrator, to be -.charged with the true value of the property, without reference to the manner of the sale or the sufficiency of the bid, and whether he be interested in the sale or not. It takes away the temptation to commit a fraud by rendering its accomplishment impracticable. It thus removes the source of all the objections upon which the inhibition was founded.
    There are many cogent reasons why an executor should be allowed to bid, which would have prevailed in favor of the right, but for the stern policy which forbade it. His competition enhances the bidding, which operates to the advantage of the estate. The intimacy of his relations to the property, which, under a different rule, would afford him facilities of obtaining a good bargain and making a profit, at the same time may give him such a knowledge of the true value of the estate, as to induce him to bid more than- any other competitor* He may have an interest in the property to the extent, perhaps, of three-fourths, or in a still larger proportion. The property is actually his, to the extent of his share, and a sale only necessary for partition. Must he stand by, and not be allowed to open his mouth in the way of competition in the bidding ? Must he see his own property sacrificed without remedy ? Shall he not be permitted to buy in his own property, at the same time doing full justice to his co-tenants ? An executor not unfrequently might attach an extrinsic value to the property, from motives to which his competitors in bidding would be strangers. He migbt place a bigber estimate upon it from associations, from its baying been tbe place of bis birtb and tbe borne of bis childhood — from its having been tbe residence of bis ancestors — or simply because it was bis father’s property, bis mother’s, bis uncle’s, or bis friend’s, as tbe case may be. This is a natural sentiment, and certainly not one to be rebuked; for no natural feeling or affection is wrong, except in its abuse. A sentiment, so deeply rooted in our common nature, should not be wantonly trampled on or disregarded by tbe law, but should’ rather be gratified, or at least be tolerated, where no evil consequences can result. But we have seen that tbe indulgence of this sentiment, in allowing an executor to purchase at bis own sale, under tbe safeguards which tbe law now affords, tends rather to tbe advantage than to tbe injury of the estate. Under tbe rules forbidding an executor to purchase, bis position would be one of disadvantage and hardship. He could not acquire, in severalty, property which is already in part bis own, He could not protect bis own interest by bidding, and thus preventing a sacrifice. These considerations migbt often induce him to decline tbe trust reposed in him by tbe testator, which would, in such case, have to be committed to strangers.
    To illustrate these views, no case can be more apropos than tbe present. Here is a testator, who has left a large estate, some of which was hereditary, and a large portion acquired by bis enterprise and skill in agricultural operations. He left behind him an honorable name, distinguished for bis eminent personal worth, by tbe high stations he bad occupied, and by tbe services he bad rendered his country. He left four sons to transmit his name and lineage to future times. Is it not natural that be should desire, or at least have been willing, with bis name to transmit bis estate, or, at all events, such portions of it as bis sons should be entitled to ? A cynical philosophy may sneer at this sentiment as an infirmity, but it is a natural feeling, and one founded upon or accompanied by an honorable ambition. He devises and bequeaths his whole estate to his nine children, and grand-child, in equal shares, a disposition which of itself imports the necessity of a sale. A distribution, on the terms of the will, is otherwise impracticable. He appoints his four sons his executors, and foreseeing the necessity, he clothes them with the most ample authority to sell. The power with which he invests them, in this respect, is only limited by their own discretion. Did he — could he— by appointing them his executors, have intended to deprive them of the power of buying and possessing any portion of his estate in specie, as he had occupied and enjoyed it ? Could he have intended that none of his sons should have the right of acquiring the ownership of his hereditary slaves ? The question admits of but one answer. He could not so have intended. And if the law imposes such a condition upon the exercise of their power, it would be a case of great hardship. It would be a hardship without a corresponding advantage to the estate. For, as we have seen under the rule established by the Act of 1839, and even on the principle of Stallings vs. Foreman, there is no possibility of the executors committing a fraud, or obtaining the property at an under value.
    It has been doubted, in fact it has been strenuously urged, in argument, that the Act of 1839 does not apply to real estate. In the first place, it is to be remarked, that there is not an argument, pro or con, that does not apply as well to a case arising on real as personal estate. The general rule, which inhibits trustees to sell from becoming purchasers at their own sales, under which executors have in some cases been considered to be embraced, relates alike to both species of property. The case of JDavoue vs. Fanning, already cited, was a case of the purchase by an executor of his testator’s real estate, when the sale was made under a power to sell given by the will. The mischiefs were the same, and the remedy was intended to be co-extensive with the mischief.
    But it seems to me that the Act itself admits of no other interpretation. It declares tbat “it shall be lawful for any executor or executrix, administrator or administratrix, to become a purchaser at tbe sales of the estate of bis or her testator, or intestate, under whatsoever authority the said sales may be made, and the property so purchased shall be vested in him, or her, but he or she shall be liable to the parties interested for the actual value of property at the time of sale, in cases where it shall have been sold at an under price.” The executor may become the purchaser of the estate of his testator. Is there anything in the language of the Act, or in reason, which restricts his right of becoming a purchaser to the personal estate. There is significancy in the use of . the most generic term, and one which embraces every species of property.
    And this right to become a purchaser is to exist “ under whatsoever authority the sale may be made.” Here, too, there is an apparently studied use of terms sufficiently comprehensive to embrace every case, as to the source of authority by which the sale is made. This authority can only emanate from two sources — the decree of a Court of competent jurisdiction, or a power to sell given by the will. In either category, the executor may buy.
    The second section of the Act is as follows: “ If any executor, or executrix, shall purchase any property at the sales of the estate of his or her testator, he or she shall give bond, with surety, to the Ordinary of the District, conditioned to account for the purchase money of the said property.” In this instance, no bond has been given to the Ordinary. It is argued that this is a condition upon which the right of the executor is made to depend, and that by the omission his privilege is forfeited. My construction is different. The latter clause, I think, is directory, and not a condition precedent to the validity of the sale. Eor this construction there are many analogies in our statute law. The idea that the validity of the sale shall depend upon the performance of the duty imposed in tbe second clause, is not expressed in tbe Act. But it is declared that tbe property purchased by tbe executor at tbe sale shall be vested in him. Upon tbe purchase, tbe property vests eo instanti, and would not be afterwards divested by not giving tbe bond. How long after the purchase would he be allowed to give tbe bond? After what lapse of time would bis privilege be forfeited ? Suppose tbe executor were to die after tbe purchase, and before be bad a reasonable time or opportunity to give the bond ?
    Nor, do I think, that under a proper interpretation of tbe Act, it is material to enquire, whether tbe bid by which an executor or administrator has become tbe purchaser, is adequate or otherwise. The meaning of tbe Act clearly is, that when be purchases tbe property, at whatever price, it shall become vested in him, he being accountable “ to the parties interested for the actual value at the time of the sale, in cases where it shall have leen sold at an underprice.” It is the obvious implication that the property is to vest, notwithstanding it may have been bid off at a price below its actual value.
    Though not germain to the issue here presented, I will say, before I conclude my remarks upon the construction of the Act of 1839, that the purchase, by an executor or administrator, of the property of his testator or intestate, contemplated by this Act, must be made at a public auction. It is scarcely necessary to say, that it would not be competent for him, sitting in his own chimney corner, to say to himself, “ I will take this or that property at such a price,” and to enter it into his own memorandum book. To become a purchaser under the Act of 1839, he must be the highest bidder at a public auction, with open competition, or under circumstances where competition was invited.
    For the foregoing reasons, I am of opinion, that an executor or administrator may become the purchaser of the property, real or personal, of his testator, or intestate, provided he be the highest bidder at a public auction fairly conducted, in open competition, or under circumstances where competition was invited; that, under tbe provisions of tbe Act of 1839, it is not essential to tbe validity of tbe sale, that bis bid should be tbe actual value of tbe property at that time, but be must be charged with and account for the value, as the Act directs; and that tbe omission to give bond with surety for tbe amount of such purchase to tbe Ordinary, as directed by tbe second section of tbe Act, does not affect tbe validity of tbe sale, if it be otherwise fair and legal. I am further of opinion, that where an executor or administrator has bid for the property of bis testator, or intestate, and it has been knocked off to him at public auction, in open competition, at a full and fair price, such purchase may be sustained on the principle of Stalling's case (which is tbe last judicial enunciation on this subject prior to tbe Act, and which I think was correct), though the omission to give bond with surety to the Ordinary, or some other circumstance, might be considered as preventing the case from coming within the operation of the Act of 1839. In other words, a purchase under the circumstances mentioned would be valid, independent of the said Act, on the authority of Stalling's case.
    
    My next enquiry will be, whether the price at which the plaintiffs bid off their testator’s property, on the 8th January, 1856, was full and adequate? This is a question of fact,and must be determined by the evidence.
    As respects the Wateree estate, all parties acquiesce, and there is no controversy. It is ordered and decreed, that the sale of the Wateree estate, as sold by the executors on the 8th January, 1856, on the same terms upon which said sale was made, be confirmed, on the parties who were the purchasers of said property accounting and paying, to the parties who were not concerned or interested in said purchase, for their respective shares and the accruing interest.
    I am to consider whether the bid of one hundred and eighty* eight thousand dollars, for the Savannah River estate, was full and sufficient. Upon a most careful and prolonged examination of tbe evidence, I think it was. I am strongly impressed, tbat but for tbe competition of tbe executors, so bigb a price could not bave been obtained. Out of tbe family there, was but one actual bid — tbat of Mr. 0. Middleton for one hundred and seventy thousand dollars. This was for the land and negroes, exclusive of the rice, stock, &c. Tbe only other positive bid, except those made in behalf of Mr. Izard and his associates, was tbat of Mr. 'Wilkinson for one hundred and seventy-five thousand dollars. This included only the land and negroes. Mr. Burrel Sanders’ overture did not amount to a bid; and Mr. Wilkinson’s bid of one hundred and eighty-one thousand dollars, made through Mr. Manigault, was retracted, in consequence of tbe executors still adhering to their condition respecting the negro Jackey. The last named bid of Mr. Wilkinson called forth the bid of Mr. Izard of one hundred and eighty-eight thousand dollars, at which the property was sold.
    , All the witnesses concur in the opinion that the property was sold at a fair price, with the exception of Mr. Zeigler, the overseer, who testified that since the sale he had expressed the opinion that the property was worth two hundred thousand dollars. I do not perceive how the opinion of this witness is to outweigh the whole tenor of the evidence. Even the amount of his estimate, and that of the sale, considered comparatively, and with reference to the magnitude of the estate, presents no great or startling discrepancy.
    In reference to this matter of the value of the property, we should not lose sight of another fact. The whole property was appraised at one hundred and ninety thousand dollars. There were then one hundred and fifty negroes. Between the date of the appraisement and that of the sale, eight of the n'egroes had died. Making but a moderate estimate for the negroes who had died, the amount of the sale certainly did not. fall below the appraised value. In a. question of this character, tbe appraisement assuredly would not prevail against positive evidence of a higher value. But, in the absence of such proof, or of'sufficient proof to that effect, the appraisement may be relied on to show that the executors have not secured to themselves a profit.
    The average price at which the one hundred and forty-two negroes sold, considering the appraised value of the land to have been given, was about five hundred and fourteen dollars. There was evidence that, about that time, gangs of negroes, without being sold with land, had brought an average price as high as six hundred and nineteen dollars. It • is perfectly obvious, that negroes sold without being encumbered with land would yield a higher average price than where, as in this case, the sale of. the negroes was coupled with the sale of land to the amount of one hundred and thirteen thousand dollars. From the mobility of this species of property, there are more persons seeking to invest capital in negroes than in lands. Mr. Bee was of opinion that these negroes were worth one hundred dollars less in the average with the land, than without it. He said he was offered, at this time, Potter’s negroes, with land, at five hundred dollars round.
    Upon the whole, I see no reason to doubt that the price for which the Savannah River property was sold, was full and adequate. .It is ordered and decreed, that the said sale be confirmed, on the parties who were purchasers paying to the other parties', who were not purchasers, their respective shares, with the accruing interest, according to the terms of the sale. It is further ordered and decreed, that the said Savannah River estate, as also the Wateree estate, stand pledged for the payment of the purchase money of each respectively, and the accruing interest.
    It is further ordered and decreed, that the said plaintiffs do account before one of the Masters of this Court, for the purchase money of said estates, and for all other goods and chattels, assets, &c., that have come into their hands, and account generally for tbeir actings and doings as executors of tbeir said testator.
    AND WHEREAS, tbe parties baying all submitted, and elected to take under tbe will of tbe testator, tbe election so made by tliem is confirmed, and tbe provisions made by tbe will declared to be a satisfaction of all tbe claims wbicb any devisee or legatee bas against tbe testator, or against any of tbe property of wbicb be was in possession at or before bis death, or which be assumed by bis will to dispose of. It is further ordered and decreed, that tbe executors, from tbe assets in tbeir bands, do invest a sum sufficient to yield and secure to Mrs. Isabella I. Huger her annuity of three thousand dollars, in half-yearly or quarterly payments, at her discretion, during her life. It is further ordered and decreed, that tbe said executors, after making tbe said investment, and after paying tbe debts of tbe testator, distribute tbe remainder of tbe estate among tbe devisees and legatees, in equal shares, according to tbe terms of tbe will, taking in consideration, and into the estimate, tbe advancements made by tbe testator, as stated in bis will.
    It is further ordered, that tbe costs be paid by tbe executors out of tbe assets of tbe estate.
    Tbe defendant, J. W. Wilkinson, appealed on tbe grounds:
    1. It is respectfully, submitted, that though, in tbe language of tbe decree, tbe executors of Judge Huger’s will “werenot bound to any form or mode of making tbe sale,” and “ tbeir authority was as full and complete as that of tbe testator, or any other proprietor,” and “they bad unlimited power as to the manner of selling,” yet this was true only in regard to sales, where the executors were not themselves interested as purchasers, and was inapplicable to tbe circumstances of tbe present case, where the executors were themselves the purchasers.
    
    
      2. Tbe “well settled” “general rule,” “that a trustee or agent to sell cannot become a purchaser at bis own sale,” and that “ sucb sale will be set aside on tbe application of any party whose interest or desire it is to have it vacated,” “ without any reference to tbe question, whether a full price has been obtained,” prevails in South Carolina, except as modified in regard to executors and administrators, by the decided cases referred to in the decree, and by the statute of 1839; and these decisions, and this statute, it is respectfully submitted, simply remove disabilities, under which executors and administrators were supposed to labor in regard to becoming purchasers of the estate held in charge, and did not contemplate giving to these trustees advantages, as purchasers, over legatees and distributees having equal interests with themselves.
    3. It is respectfully submitted, that the pleadings and evidence show, that previous to the day of sale, as well as on that day, by the “ arrangements” as to Jackey, and by the operation of many other circumstances, controlled by themselves, the executors desiring to purchase did possess very decided advantages in competing for the purchase of the Savannah River property, over Messrs. "Wikinson and Manigault, who had equal interests with them as devisees and legatees, under the will of testator.
    4. An executor or administrator, it is further submitted, has not only no claim to a position of advantage, but he cannot "become the purchaser of the property of his testator or intestate at all, except under the conditions described by his Honor in his decree, to wit: “ Provided he be the highest bidder at a public auction, fairly conducted, in open competition, or under circumstances where competition was invited;” and (as is stated in the decree) the amount of the bid, or fullness of the price, is not the test of compliance with these conditions.
    
      5. It is respectfully submitted, that tbe sale of tbe property of tbe estate of Judge Huger, on tbe 8th January, 1855, where (as is admitted by tbe Chancellor in bis decree), 1st, tbe negroes sold were not advertised for sale at auction at all, nor mentioned in tbe advertisements as any part of tbe property to be sold on tbe day of sale, and not present at tbe place of sale; where, 2d, tbe Savannah Eiver plantation was sold as a whole, though advertised to be sold in two lots; where, 3d, one hundred and forty negroes, and more than one hundred thousand ($100,000) dollars worth of land were sold in block, without previous advertisement to that effect ; and where, 4th, the terms of sale, as to credit, varied from the advertisement — was not a sale “ at public auction, with open competition, or under circumstances where competition was invited"' and therefore not a sale at which an executor could become a purchaser under the Act of 1839.
    6. Both the decided cases referred to in the decree, and the Act of 1839, it is respectfully submitted, apply only to “executors’ and administrators’ sales,” as these terms are generally understood in South Carolina, to wit: public sales, after the customary notice, disposing in the usual manner of thq personal estate of a testatpr or intestate; and give no sanction to a purchase by an executor or administrator, at an unadvertised sale, in block, of a plantation, negroes, stock, provisions, Ac., knocked off to the only bidder, at one hundred and eighty-eight thousand ($188,000) dollars, gross.
    7. That neither the cases, nor the Act, apply to real estate at all.
    8. The clearest equity demands, that if trustees to sell are permitted to become purchasers at all of property held in trust by them, upon them should rest the burthen, to show, beyond all question, that adequate means have been used to ascertain tbe full market value of tbe property; or, if tbis be in. any doubt, to show that tbe intrinsic value is certainly witbin tbeir own bid; whereas, in tbis case, it is not clear that tbe market or exchangeable value has been ascertained, and it is shown that tbe property yields fourteen and three-quarters per cent-per annum on tbe sum bid.
    9. The Court, it is submitted, should at least have ordered an inquiry into tbe sufficiency of tbe price ; inasmuch as it appears that, but for an odious condition imposed by tbe executors who purchased, two of tbe defendants might themselves ■have purchased at a higher bid; and it is proved that tbe property, in a course of six years (omitting 1854), yielded thirteen and a half per cent, per annum on two hundred thousand ($200,000) dollars, tbe valuation placed on tbe property by the overseer of complainants, tbe only witness who speaks from his own hnowledge of the place, and its productions.
    
    10. It is respectfully submitted, that bis Honor’s decree is otherwise contrary to tbe equity of tbe case, and not sustained by tbe evidence.
    
      Hayne, Memminger, for appellant.
    Petigru, contra.
   Tbe opinion of tbe Court was delivered by

DargAN, Ch.

It will not be necessary to consider tbe appellant’s ten grounds of appeal seriatim. They may, in substance, be resolved into tbe several propositions discussed in tbe circuit decree, and, to most of what has been said by way of argument on tbis bearing, tbe reasoning of tbe Circuit decree is a sufficient answer.

As a matter of fact, and from tbe evidence before us, we are of opinion, that tbe sum of one hundred and eighty-eight thousand dollars, bid by the plaintiffs for the Sayannah River plantation of the testator, with the one hundred and forty-two negroes thereon, and the stock, seed-rice, &c., was a full and fair consideration, and the purchase cannot be questioned on that score. If there had been any doubt upon this point, and it had been satisfactorily shown that further and material evidence could have been adduced, bearing upon this question as to the value of the property, and the sufficiency of the bid, the Court would have ordered a reference for further investigation; and the Circuit Court, under like circumstances, would have felt itself called to pursue the same course. But the evidence seems to be full and ample. The Court is satisfied with the decision upon that evidence. And it does not appear that further investigation would elicit further light.

- The manner of the sale was unquestionably informal and irregular; and if the executors had, under these circumstances, sold the property to a stranger for less than its value, I doubt not that they would have rendered themselves personally liable for the deficiency, to their co-devisees and co-legatees. But if, at a sale even so informal and irregular as this, they had obtained from a stranger a full and fair 'price, Avhat more could be required of them ? This is the utmost requirement of the law. Therefore, it may be said, that a full price would cure all irregularities in the manner of the sale. And if a sale of this kind was in the highest degree regular, and every usual and appropriate form observed, it is impossible, both by the statute law and the decisions, for the executors to make a profit to themselves by becoming the purchasers. Under any and all circumstances, they, as purchasers, are to be charged with the true value of the property, and the Court, when its aid is invoked to that end, will impose such conditions upon them as will make the purchase money secure.

It is said, that the sale ought to be set aside, because Mr Wilkinson (one of tbe parties in interest) was excluded from competition at tbe sale by an odious condition. To understand this objection, an explanation is necessary. The testator had a faithful and favorite slave named Jackey, who was a kind of steward, kept the keys, &c., and was eminently trustworthy. Him tbe executors wished to favor, and accorded to him the privilege of “choosing his masterin other words, of electing the person to whom he should be sold. And when the plantation, negroes, &c., were put up for sale in solido, one of the conditions, was, that Jackey, with his family, should have the privilege of going with the gang to the purchaser, or of being detached from the purchase; deducting from the bid for the whole the appraised value of Jackey and his family. This was the condition said to be odious, and to exclude Mr. Wilkinson from competing at the sale.

The executors, as I have said, were bound to no form of sale, nor restricted to any specific terms. Their authority was so plenary, that after the property had been put up at auction, and the biddings commenced, they might have withdrawn it from sale at auction, and disposed of it at private contract, on different conditions from those advertised. • The only condition annexed to their authority was one implied by law, that they should use judicious means to obtain the value of the property, and to be personally liable if they did not. And so, as to Jackey, the authority of the executors was unlimited. They had the power of a proprietor, and might indulge their discretion, and even their caprice, in selecting their vendee. If they had excluded Mr. Wilkinson expressly and by name from the competition, it might be considered as discourteous and unfriendly; but, a fair price being obtained, I do not perceive how such conduct could be made the ground of setting aside a sale otherwise valid. But whatever may have been the intention, from the evidence it is not to be inferred that this condition was aimed personally at Mr. Wilkinson. It was a condition annexed to the sale, and had relation to all bidders — 'the executors themselves, members of the family, and strangers alike. It is perhaps a matter of regret, that the executors had not been more accommodating to the feelings of Mr. W., in this particular, or exercised their undoubted privilege in a manner less offensive to him. But of this they were entitled to judge for themselves. With the private motives (if any there were), the private feelings and relations of the parties, the Court has nothing to do.

This condition as to Jackey, so offensive to Mr. W., who considered it as aimed personally at him, was the cause of his withdrawing from private negotiation for the property. The same cause prevailed in preventing him from entering into competition at the public sale. And on the next day, when Mr. Izard offered to let him have the property if he would advance upon his bid, he refused to entertain the proposition, unless the condition as to Jackey was withdrawn. Under these circumstances, it is vain to say, taking any view of the case that can be entertained in a court of justice, that this sale is to be opened for anything arising from, or connected with, the condition complained of: I have now done with that part of the case, which may be considered as involving questions of fact.

In addition to what I have said in the circuit decree, I purpose to make a few remarks upon the construction of the Act of 1839. In the argument for the appellants, it is strenuously urged, that this Act does not confer upon executors and administrators the right of purchasing real estate at their own sales. The Act, in declaring the right to purchase, says, “ and the property so purchased shall he vested in him or her," &c. It is asked, how can the legal estate pass by such a sale as this ? — a sale by an executor to himself. While it is very easy to perceive how personal property might pass by such a sale, it is said that this is a mode of transferring the legal title of real estate unknown to the law, and is incompatible with its general provisions. In the first place it may be observed, that the Act does not declare that the legal estate shall pass. There are two kinds of title known to the law, namely, legal titles and equitable titles. And a person may be as properly said to be vested with an equitable title, as with one which is purely legal. The language of the Act does not demand, that in its proper interpretation, it should be consid ered as meaning the legal estate only. But waiving this, as perhaps not the proper ground upon which the interpretation given in the circuit decree is to be sustained, the argument against this interpretation requires, that it should be considered as a principle of law, that the legal estate cannot pass without a deed of conveyance, or a will; whereas, nothing is more common, nor has been from the earliest ages of the common law, than for the legal estate to pass by operation of law, as in all cases of descent. At every session of the Legislature, there is some Act passed vesting the legal title of escheated property in persons supposed to have good equitable claims. And certainly, it is as little absurd for the Legislature, by an Act, to vest the legal title by future conditions to happen, -as upon conditions which have already happened. And when the Act of 1839 declares, that the property pur-, chased by an executor, at his own sale, shall be vested in him, there is nothing unreasonable, inconsistent or unusual in it. The legal title to real estate may pass by a decree of this Court; and this is a constant and every day practice. In cases of partition, when the return to the writ is made and confirmed, it is not necessary that all the parties, to whom portions have been allotted, should mutually and interchangeably execute and deliver deeds, to vest each of the distributees in severalty with the title to the separate portion which has been allotted to him. This is effected by a decree, and henceforth, each party is seized in severalty of his particular share, and the rest divested of their legal estate in such share, which before the decree they had, as tenants in common. And when the commissioners, as they are authorized by the Act to do, recommend that tbe whole estate be assigned to one of tbe tenants in common, on bis paying to tbe others their share of tbe price at which the land has been valued, and such dis-tributee consents to accept the land on tbe terms prescribed, no deed of conveyance from his co-tenants is necessary to vest him with the legal title of their share; but a decree of the Court is sufficient for such purpose. These familiar examples and illustrations show, that the provision of the Act of 1889, which declares that the property of his testator, purchased by an executor at his own sale, shall be vested in him, is no anomaly.

The Act, in declaring the competency of an executor or administrator to purchase on-certain conditions, proceeds, in the second section, to provide, that if any executor or executrix shall purchase any property at the sales of the estate of his or her testator, he or she shall give bond, with surety, to the Ordinary of the district, conditioned for the payment of the purchase money of the said property.” I have held, in the circuit decree, that the condition imposed in this section of the Act, is not a condition precedent, or essential to the validity of the purchase. This Court concurs in the correctness of the construction. On the hearing of this appeal, this point has been so earnestly contested, that it will be proper to make a few additional observations. It is remarked, that this section requires an executor to give bond to the Ordinary, while an administrator is not so required. Erom which it is insisted, that as the jurisdiction of the Ordinary only relates to the personal estate, the power of the executor to purchase is restricted to that species of property. That the Ordinary having no power over the real estate, it would be inconsistent and anomalous to require the bond for such estate to be given to him. That, in the case of an administrator, the administration bond covers all his defalcations as regards the proceeds of the sale of the personal estate, but not of his purchases of real estate. Hence, it is inferred, that an administrator’s power to purchase is restricted to personal estate; and as an executor and administrator are, or should reasonably be, put upon the same footing, it is concluded that the power given to an executor to purchase is also confined to the personal estate. The logical sequence of this deduction, to my mind, is not very obvious. A better reason for the difference made between an executor and administrator, as to the requirement of the bond to the Ordinary, can be given — a reason which makes the provisions of the Act perfectly consistent. The administrator gives an administration bond to the Ordinary; an executor does not. The penalty of the administration bond is double the value of the estate to be administered. The powers and duties of an administrator relate wholly to the personal estate. He can never, by any legal possibility, have, as regards real estate, any sale of Ms own, under his authority as administrator. Therefore, his administration bond, if well taken, is a sufficient protection to the parties in interest against the consequences of his devas-tavit. Another bond, for the same purpose, would be an unnecessary exaction. Not so with an executor; who, though not required, as executor, to give a bond (because the testator has reposed in him a personal confidence), may, and often does, have power given to him, by the will, to sell both real and personal estate. And when, under this authority, or that of a decree of a Court of competent jurisdiction, he sells, and becomes a purchaser at his own sale, the Act interposes, and declares that he must be charged with the true value, whatever may have been the amount of the bid, and that he must give bond, with surety, to the Ordinary, whether the purchase be of real or personal estate. Surely, under this interpretation, there is no incongruity in the provisions of this Act, and its operation harmonises with the powers, duties and responsibilities of executors and administrators.

The provision of the second section of the Act, that in the case of a purchase by an executor, a bond shall be given to the Ordinary, is not a nullity. The requirement is imperative, though no time is prescribed for its pei’formance. If the executor purchasing were to pay, or to tender payment of the money to the parties entitled to receive it, the requirements of the Act would be satisfied. And so, where the sale is on a credit, and he comes, within a reasonable time, and executes bond to the Ordinary, as the Act requires, it is sufficient.

The plaintiffs in this case express their willingness, and now offer to comply with the provision of the Act of 1839, as to the giving of a bond to the Ordinary. And, in the opinion of the Court, it is not too late for them to do so. And, though their non-compliance heretofore does not invalidate the sale, it is the duty of the Court, when invoked do confirm it, to impose upon the executors, purchasing at their own sales, all the conditions prescribed by the law. It is therefore ordered, that the said executors, purchasers at their own sales, as in the bill stated, do, within sixty days from the announcement of this decree, execute a bond to the Ordinary of the district where the property is situate, for the purchase money, as required by the Act, the liens given by the circuit decree to remain the same as therein expressed. The circuit decree, in this respect, proceeds upon the doctrine of an equitable mortgage. In all such cases, I incline to think that a lien, in the nature of an equitable mortgage, would be set up. This is my individual opinion, however, and not that of the Court, From that part of the circuit decree no appeal was taken, and it has not been discussed, either at the bar or in the confer enees of the Court.

It is ordered and decreed, that, except so far as herein modified, the circuit decree be affirmed, and the appeal dismissed.

JOHNSTON, Dunkin and Wardlaw, CC., concurred.

Appeal dismissed.  