
    NOVEMBER TERM, 1844.
    John B. Williamson, et ux. v. H. S. Williamson, et al.
    C. died possessed of real estate; in 1821, the legislature passed an act authorizing C.’s administrator to sell the land upon terms and conditions prescribed, and to invest the proceeds as in his discretion would be most judicious for the widow and heir ; the administrator sold the land; and in 1838, C.’s heirs filed a bill to set the sale aside; held, that the sale, if regular, was not void, — that the act of the legislature authorizing it was not unconstitutional.
    Where a sale is made by virtue of a private act of the legislature, authorizing the sale of an intestate’s estate, the titles acquired under it, if the proceedings are regular, are valid.
    A private act of the legislature, obtained by fraud, where the fraud is clearly made out, may be annulled by a decree of the Chancery Court.
    Where a private act of the legislature to sell real estate of a deceased person, was obtained upon the representation that the personalty was insufficient to pay the debt, and it turned out that the personalty was more than enough including the price of a slave bought by the widow, but not enough exclusive of that price; held, that the representation to the legislature was not iraudu-lent, and could not justify the acts being declared null thereby.
    The legislature authorized an administrator to sell his intestate’s land, upon his giving bond, among other things, “ to vest the proceeds of the sale in other property;” the administrator gave a bond, but did not insert the above condition therein; held, that that condition was not supplied by another condition in the bond “ to account for the proceeds,” and that for want of such condition in the bond, the sale by the administrator would be void, unless upon full and complete subsequent compliance therewith on his part.
    Where á sale of intestate’s property is authorized by act of the legislature, prescribing the terms thereof, those terms must be strictly complied with, or the sale will be void.
    Where an administrator, by act of the legislature, sells property of his intestate, without giving the required bond, such sale will pass no title; the purchasers thereat will be regarded trustees for the heirs; and a purchaser without notice for a valuable consideration, from the original purchaser, will be regarded in the same light.
    Where a sale of lands was made by an administrator by virtue of an act of the legislature, and the administrator in making the same did not comply with the requisitions of the act; upon a bill filed by the heir to have the sale set aside, and a decree to that effect, an account will be ordered of the rents of the land to be charged to the purchasers, and they will be credited with the value of all permanent improvements, so it does not exceed the value of the aggregate rents.
    
      On appeal from the Superior Court of Chancery.
    John B. Williamson and Cecelia M. J. his wife, on the 18th day of June, 1838, filed their bill in the Superior Court of Chancery, on which they alleged, that John Cook, the ancestor of Cecelia, entered in the proper office, the following tracts of land : The north-west quarter of section number twelve, township sixteen, range number four, east ; also the north-east quarter of section number twelve, township number sixteen, range number four, east; and fractional section number thirteen, township sixteen, range four, east, in one body, and containing about eight hundred acres. That said Cook paid the purchase-money, and obtained certificates for the same, which entitled him and his heirs to the possession and enjoyment of said land forever. Said Cook departed this life in the year 1840, leaving a widow him surviving, and said Cecelia his heir at law. After the death of said Cook, administration, &c. upon his estate was granted to Belfield Wrenn, the maternal uncle of said Cecelia. At the time of the death of said Cook, said Cecelia was an infant, and was then, and until after the transactions afterwards mentioned, of very delicate health, and of apparently such feeble constitution, that she was not expected to survive until years of maturity,— in which event estate of said Cook would have gone to her relations on the part of her father, instead of those of the mother. In this state of case, it was thought to be desirable that the title of the property should be changed, so that in the event of the death of said Cecelia, the property would go to the Wrenn family, to which the mother of said Cecelia belonged. Accordingly the legislature, about the year 1821, were prevailed upon by said Bel-field Wrenn and others, to pass an act authorizing the said Belfield Wrenn to sell and convey the certificates for the three tracts of land. By the said act, the said Belfield Wrenn was required to give bond and security to be approved by the Orphans’ Court of Warren county, or the Chief Justice thereof, to observe the rules of law, for the sale of real estate by administrators, and to account for the proceeds of said sale, while the time and conditions of the sale, as well as the manner of vesting the proceeds thereof, were left wholly to the discretion of said Belfield*. After the act, said Belfield Wrenn, without having given the bond required by it, sold the said land to his father Jones Wrenn, for a mere nominal consideration, perhaps the sum of seven hundred dollars, at private sale,, and transferred said certificates to said Jones Wrenn, at the time of the said sale. The land was worth at least twenty thousand dollars. Part of it vlas then as now in a high state of cultivation, with fine buildings upon it. Said Belfield did not pursue the rules of law prescribed for the sale of real estate ; the sale was made privately, at a small price, to increase the estate of his father, and thereby his own by the increase of his father’s.
    The bill further alleges, that James E. Pellway deceased, with whom said Cecelia was intermarried, hi his lifetime, purchased from the estate of the said Jones Wrenn about two hundred and seventy acres of said l,and, of which he died possessed in the year 1836, leaving said Cecelia in possession, which she has since retained ; said Cecelia has never claimed down to the same, because she believed her right was paramount to that of said Pellway ; said Pellway died intestate, leaving Robert H. Pellway, his only heir at law, and the complainants intermarried in November, 1837. The complainants have been informed that said Jones Wrenn, upon said transferred certificates obtained patents from the United States, and has conveyed portions thereof to Susan Spann, Frederick Spann, and Sarah R. Burman, and Robert Spann deceased, and that the defendants, Charles Spann and his wife Jane, -and Frederick Spann and his wife Eliza, and Susan Spann, and Henry M. Wrenn, and Louisa, and J. Williamson, Jones W. Spann, Richard Spann, Caroline Spann, and Susan Spann, as heirs at'law of Robert Spann, and by and under Jones Wrenn, claim parts of said land, and Cecelia Wrenn claims by the will of said Jones Wrenn.
    Complainants are advised that, said sale and the act under which it was made were void, and vested no title, and that the parties now holding are trustees for complainants. . They insist that said sale was fraudulent, and have evidence, they state, that the proceeds of said sale were never invested, nor has said administrator in any manner accounted for the same. They insist that defendants are volunteers, having never paid anything, and the complainants pray a decree for conveyance, and for general relief.
    The answer of Charles S. Spann, and Jane his wife, Frederick Spann, and Eliza J. his wife, and Susan Spann, admits the entry of the land as charged by the bill, but the purchase-money was not paid as alleged ; the said Cook at the time of the entry paid only fifty cents per dcre, which was one-fourth of the purchase, and he never paid any mores The said land did not contain eight hundred acres, but only about five hundred and twenty-two and three-fourth^ acres. Said Cook departed this life, leaving complainant Cecelia his only heir at law ; said CoOk did not die in 1820, but in 1818 ; the wife of said Cook survived him, and departed this life in 1834 or 1835 ; that administration was granted to said Belfield Wrenn, now deceased, and the act of the legislature was procured for selling said land, but the said act was not procured to be passed, or the sale made under it, for the purpose set forth in the bill. The said administrator had sold all the personal property, and consumed all the personal assets, in payment of debts, and nothing was left with which to pay the balance due to the government on said land, and for that purpose the act of the legislature was procured, and, by a sale, the amount for which the land was sold was saved to the estate ; not true that said sale was made with out giving bond ; as required by said act, a bond was given and approved by the Court, or Chief Justice of the same. The said sale was not private, but at public auction, and the land wps sold on a credit of one and two years, for fourteen hundred dollars, and notice of said sale was previously published in the Port Gibson Correspondent. Said Jones Wrenn was the purchaser, and the price given was a full price ; at the time of said sale, said land was not worth twenty thousand dollars, it is not worth that now. There was only about twenty-five acres opened on said land,- and not even a cabin on it at the time of the sale. The land bought by James E. Pellway was not part of the land entered by Cook.. It is true, that Pellway intermarried with complainant, Cecelia, and then died leaving an only child and heir ; and that complainants since intermarried. That the certificates were transferred to Jones Wrenn, and patents issued to him for the land, on the 4th day of September, 1824, prior to the death of said Jones Wrenn ; and respondents are advised that said Jones Wrenn having paid three-fourths of the purchase-money, the complainants in no event have an equity for more than one-fourth of the land ; but this even they are not entitled to, the land having been sold, and the title divested in pursuance of law. The respondents file with their answer a copy of the act of the legislature, and they believe the preamble contains the only and the true reason for selling the land. Charles S. Spann and wife have no present right or enjoyment in any of said land ; after the death .of Cecelia, the widow of Jones Wrenn, they ’will be entitled to a portion, and so as to Frederick Spann- and wife, they, said Frederick and wife, had an interest, conveyed by said Jones Wrenn in his lifetime, which they sold to defendant, Mrs, Burman, for a valuable consideration. Susan Spann, the widow of Robert, is .in possession of one hundred acres of said land, and she has interest depending on the death of the widow of said Jones Wrenn. The allegation, that Belfield Wrenn has not accounted forthe price, is untrue; the whole of it has been accounted for and paid over. The defendants, the heirs of Jones Wrenn, are volunteers, as to so much of said land as they claim ; said Jones Wrenn departed this life, leaving the persons in the bill mentioned his heirs. '
    The respondents are advised, that the said act of the legislature is constitutional, and the sale under it good, and vested the title in the purchaser.
    The statute referred to was passed in April, 1821, and the enacting part is in these words. “ That the said Belfield Wrenn, upon entering into bond with sufficient security, to be approved by the Orphans’ Court, or Chief Justice thereof, payable to said Chief Justice, and his successors in office, in such sum as said Chief Justice may deem sufficient; that he observe the rules and directions of law for the sale of real estate by administrators, and he will well and truly account for the proceeds of said sale, and that said proceeds shall be vested in such other property as the administrator shall deem most for the interest of said widow and orphan jointly,— be and he is hereby authorized and empowered to sell the right which is in the said John Cook, deceased, to said tracts of land, on such conditions as he may think will best promote the interest of the said widow and orphan, and to make transfers of the certificates of said tracts of land to the purchaser or purchasers, as effectually as the said John Cook in his lifetime could have done, any law, custom, or usage to the contrary notwithstanding.” The preamble is recited in the opinion of the Court, and is not inserted here.
    
      Sally R.1 Newman answers. She claims the portion of the land owned by her under a purchase from Frederick Spann, and from Charles Spann, and Margaret Cook, for a valuable consideration, without any notice of any fraud, if any there was in the sale of said land by said Belfield Wrenn, and insists that the complainants have no equity against her.
    The answer of Henry M. Wrenn, with slight and immaterial variations, is like the answer of Frederick, and Charles, and Susan Spann, before set 'out.
    Jones W. Spann answers, that he is one of the heirs-at-law of Robert Spann, deceased. He believes that his father owned one hundred acres of the land in dispute. He knows nothing of the matter charged in the bill, and requires proof, &c. The infants, who are defendants, file their answer by guardian ad litem, putting complainants on proof of allegations of bill.
    John Cowan, a witness, testified that he knew Belfield Wrenn from the time he came to this country, in 1815.. He was acquainted with said Belfield at the time he was administrator of John Cook, and held a conversation with him about the sale of the real estate ; he understood' from this conversation, that the sale was private to his father, Jones Wrenn ; that the consideration was the agreement of said Jones to give Cecelia, daughter of said John Cook, eight negroes about,the age of said Cecelia ; at the time of the conver-versation, Jones Wrenn was in possession of the land. In the conversation he remarked, that if the negroes lived until Cecelia was grown, they would probably be worth as much as the land would be. This conversation took place somewhere between seventeen and twenty years since, He never heard of a public sale of the land, if there was one,
    C. S. Bowyer testifies, that he has examined the records of the probate office, and finds great irregularities in them- The minutes sometimes not signed, and a difference between the original account of Belfield Wrenn, administrator of John Cook, and the recorded accounts ; said Belfield Wrenn, as he has understood, was at the time he was administrator as aforesaid, clerk of said Court. A bond was given by said Belfield Wrenn, under the act of the legislature, to the Chief Justice of the Orphans’ Court, in the penalty of four thousand dollars, on 30th April, 1821, conditioned “ that the said Belfield Wrenn do observe the rules and directions of law for the sale of real estate by administrators, and that he will well and truly account for the proceeds of said sale according to law.”
    Administration was granted on the estate of Cook to Belfield Wrenn, at the January term, 1819, of the Probate Court. The entries of the land in dispute were made in the years 1815 and 1817.
    At the February term, 1836, the said Belfield Wrenn finally settled his account as administrator of said Cook, and was discharged.
    At the February term, 1819, of the Orphans’ Court, Belfield Wrenn returned an account on oath of the sales of the personalty of John Cook ; it amounted to $2343.62, ánd included the sale of the man Jim to Margaret Cook, the widow, for $1700. At the December term, 1819, he returned on oath to the Orphans.’ Court the sales of cotton, amounting to $499.51.
    In 1837, Belfield Wrenn made his final settlement with the Probate Court, at its May term, of his administration upon John Cook’s estate, and was discharged therefrom.
    By this final settlement he was credited with $1186.94} and charged with $2747.42, leaving a balance against him of $1560.47} The first item of the debits was “the amount of Hartwell Vick’s note, due John Cook in his lifetime, $806.17} ; another item was “ land sold in conformity with special act of the legislature, $700.”
    It is not deemed necessary to notice any more of the record for a perfect apprehension of the points in the case made in argument and decided by the Court.
    At the January term,' 1841, of the Chancery Court, the Chancellor decreed that the sale by the administrator was void, because the administrator did not pursue the directions of the act unde.r which the sale was made, and thereupon directed a conveyance to trustees for the benefit of complainant Cecelia ; but refused to decree an account of rents and profits. The bill was dismissed as to Pellway; both parties were dissatisfied, and appealed to this Court.
    
      George $. Yerger, for appellants, John B. Williamson and wife.
    The two main points charged in the bill, and on which I rely for an affirmance of the Chancellor’s decree, is, 1st. The legislature had no constitutional power to pass the act authorizing estate of the minor to be sold. 2d. If it had power, the terms and conditions of the act were not.complied with, and that the sale under it was wholly void, and passed no title to the purchaser.
    Before I say anything on the above two points, it may be proper here to remark, that the facts of the case show that the legislature ought not to have the power claimed for it, or if they have, that it ought scarcely ever to be exercised.
    The case presents a glaring fraud on the rights of a child. The parent died possessed of a tract of land of 800 acres. The admin-' istrator applies to the legislature for liberty to sell the land, alleging the personal estate is insufficient to pay debts, and also to pay the instalments due on the land. The'land was entered by the testator, and the answers allege one quarter of the purchase-money only was paid, and that the purchase-money amounted to $1600, leaving $1200 of course due.
    At the time he applied for liberty to sell the estate (which the bill charges was intended to get the property in the hands of the administrator’s father), the administrator had more in his hands than would pay all the debts of the estate, and also the instalments due on the land. The whole proceeding was an outrage and a fraud on the rights of the child, and the representation made to the legislature, as recited in the preamble of the act, that it was necessary to pay debts, was a falsehood. This is demonstrated by the acts and returns of the administrator on record, and filed as evidence in this case, and which I thus prove.
    I. The act of the legislature passed February, 1821. On the 27th of February, 1819, the sale of the intestate’s property was made by the administrator.
    The sale amounted to $2343.62.
    He afterwards sold and returned to December term, 18119, cotton amounting to $499.56.
    By the settlement he finally made in 1837, he shows, he held H. Vick’s note due to the intestate in his lifetime, for $806.17.
    The other notes in this account were notes to himself as administrator, and which were a part of the estate for property sold by him; these I do not count.
    
      Now, these three items, to wit, the sales of the personal estate, $>2343.62 ; the sales of the cotton, $>499.56 ; and the note of Vick, $806.17 ; all of which was in his hands before he applied for the law to be passed, amount to . . . $3649.35 The account of debts paid by him, and 'due from the estate, as shown by his final account, including payments made to the widow, amount to $1186.94 Add three-fourths of instalments due on the land $1200.00 2386.94
    $1262.41
    There was, then, or ought to have been in his hands, without interest, at the time he applied for the act to sell the land, $1262.41 more than was sufficient to pay the debts of the estate.
    To show his fraud further in his final account, he credits the estate with only $>700, the sale of the land. The answers say he sold it for $1400, and John Cowan proves that he said he sold it for eight negroes.
    To show further his fraud, he only accounts for a small portion of the property sold. This account, including the note of Vick for $806, and $700 for the sale of the land and various notes, only shows a credit to the estate in all of $2747.42. Whereas the, sales amounted, including the cotton, to $2843.18, to which add $700 for land, and $806 for Vick’s note, ought to have been 4349.18 from which deduct amount paid by him, 1186.94 $3162.24 would leave in his hands $3162.24, instead of $1560.47.,
    I advert to the above facts to prove that the allegation in the bill is true, that there was no necessity to sell the land, and that a fraud was practised on the legislature and on the widow in procuring the passage of the act.
    II. But be this as it may, I insist if it were a fair, perfect, and bona fide transaction, and. debts were due, the legislature had no constitutional power to pass this act. 1st. Because it is an act of judicial power. It is in form a law, but in substance a decree ox-order directing a sale of land.
    The Constitution of Mississippi, Art. 4,.sec. 1, vests the whole judicial power in the High Court of Errors and Appeals, and such other courts of law and equity as is thereinafter provided for. 2. It is contrary to the 10th section of the bill of rights, which provides, that no person shall be deprived of his life, liberty or property, but by due course of law.
    I refer the Court to a most able and elaborate investigation of both ‘the above propositions, in the case of Jones v. Perry, 10 Yerg. R. 59. See also 4 Dev. R. 1 ; 1 Cowp. R. 26 ; and Campbell’s case, 2 Bland, Ch. R. 209 ; 5 Com. Dig. Pari. R. 7. I can add nothing tp the unanswerable argumeñt of the Court in that case. The Constitution of Tennessee and of Mississippi are similar on the two above points, and the case is a decisive authority for me. It reviews all the cases on the subject.
    III. But admitting the law to be constitutional, the sale made under it is void, and passes no property whatever to the vendee. In the case of Cable v. Martin & Bell, 1 Howard, 560, 561, the administrator sold the slaves at private-sale, when by law it should have been at public sale. It was held by the Court, the sale was absolutely void, and the complainants in that case recovered the slaves.
    The Chief Justice says, u The conduct of the administrator must be regulated by the limitations and restrictions' imposed by law. His acts are only legal so far as they are justified by law. The ultimate right of property is in the distributees, and there is no way of divesting them of that right, except for such purposes and in such manner as the law prescribes.” In Ventress v. Smith, 10 Peters, R. 161, the same principles precisely are decided. The Court there decide, unless the administrator pursue the law, and comply strictly with the requisites of all statutory provisions, and unless every essential of the law is complied with, the sale passes no interest, &c. By law, (Turner’s Digest, 438, 439, 494, 495), administrator’s sales' of land must be by public sale.
    The act of the legislature, in its terms, only authorizes a sale upon his entering into a bond, with “ security, &c., conditioned that he observe the rules and directions of law for the sale of real estate by administrators, and that he will truly account for the proceeds, and that said proceeds shall be vested in such other property as said administrator shall deem most for the interest of said widow and orphan jointly; then” says the act, “he is authorized and ém-powered to sell the right which is in said John Cook, deceased, to said land, at such time and on such conditions as he may think, &c.”-
    Has this statutory power been complied with ? The bill alleges the sale was a private one. The answers of the defendants (who claim through the administrator, and know nothing of their own knowledge), say they believe it was a public sale. What is the proof ?
    It is expressly proved by John Cowan, that the administrator himself told him he sold the land at private sale to his father, for eight negroes. This is sufficient, but what else ; he is to observe the rules, &c. in regard to sales of land made by administrators. If the sale was public, notice had to be given ; the sale had to be returned to the Orphans’ Court; it became record evidence. The transcript filed and certified by the clerk, states it is a full and perfect record of all the said administrator’s proceedings ; so that the records of the Court do not show the sale was a public one.
    Again, where persons claim under a sale, by virtue of an authority conferred by law, they must show by proof that the authority was pursued. Where a title depends upon conditions, they must be shown to be performed. Where it depends upon an authority or power, the power must be shown to have been strictly pursued by proof. Stead v. Course, 4 Cranch, 403 ; Williams v. Peyton, 4 Wheat. 77; 6 Wheat. 119 ; Ventressv. Smith, 10 Peters, 161 ; Com. Dig. tit. Condition.
    Here there is not a particle of testimony to show it was a public sale, as averred in the answers. Upon the contrary, it is shown in proof to have been a private one. This in fact was unnecessary ; for it falls on the defendants to prove that the authority was pursued. See authorities above citedl
    It is well settled,'that although Courts of Equity will relieve against the defective execution of a power created by the party, yet they cannot relieve against the defective execution of a power created by law, or dispense with any of the formalities required thereby for its due execution ; for otherwise the whole policy of the legislative enactment might be overturned. 1 Story’s Eq. sec. 96, 177, 2d ed. ; 1 W. W. Story’s Rep. 487.
    
      IY. But again. The power is only given on the condition that a bond is executed in the manner prescribed by the law. It is a condition annexed to the' power of an administrator, that a bond should be given ; without it, the sale is void. 1 W. W. Story, 487 -; 2 Stew. Rep. 331.
    Here the,statute is express. It says, he shall execute a bond with security, conditioned that he will observe the rules of law for sales of land by administrators,- and that he will account for the proceeds, and that said proceeds shall be invested in other property, &c. ; then, says the statute, he shall have power to sell, &c.
    Now it is evident, if no bond is executed, or if one is executed, with wholly different conditions, or if one is executed omitting any of the conditions imposed, the statutory authority is not complied with. If one of the conditions of the bond can be dispensed with, .all may. They all constitute and make the condition, and a court of equity cannot even dispense with any formality required. See 1 W. W. Story’s Rep. 487 ; 1 Story’s Eq. sec. 96, 177.
    Was a bond with such conditions given ? It was not. The bond executed by the administrator is found at page 53 of the record. The condition is, “ that, whereas, by an act of the general assembly, &c., entitled, an Act to authorize Belfield Wrenn to sell and convey the certificates of three tracts of land in Warren county, entered by John Cook, since deceased; that the said Bel-field Wrenn do observe the rules and directions of law for the sale of real estate by administrators, and that he will well and truly account for the proceeds of said sale according to law, then it is to be null and void.”
    The Court will here observe, that a very material part of the condition prescribed by the statute is left out, to wit, that he will invest the proceeds in other property, for the benefit of the child and its mother. If this can be dispensed with, the whole can be. For these reasons I think there can be no doubt that this part of the Chancellor’s decree is right.
    V. But the Court will perceive we appealed as well as the defendants. We think the decree of the Chancellor is wrong in this, that he refused to decree us an account of the rents and profits. This is unquestionably our right. The defendants cannot pretend to be purchasers for valuable consideration without notice. . There is no such proof, and, moreover, their title depends in the statute ; they could refer to that. In justifying their title, they were obliged to notice it. The sale being void, it follows, as a matter of course, we are entitled to the account; and on this point we-must have an account ordered. See Jonas v. Perry, 10 Yerg. 59, on this point.
    Another reason why the -law is void, is, that at the very time it passed, the general laws of the land authorized a sale of real estate to pay debts upon a deficiency of personal estate. But it was the duty of the administrator to apply for it, and the parties had to be notified, and the Court investigated the question whether the personal estate was sufficient; and if it was, they could not order it. See Turner’s Dig. 438, sec. 28, 29, 30, p-. 494, 495.
    In this case the administrator could have presented his petition, and sold it, if, as is alleged, the personal estate was insufficient; but he knew this investigation would not do, therefore he applied to the legislature for the passage of the law. If it were necessary, authorities might be cited, that if the legislature had the power to pass such a private arid special law, when a public one existed, the false recitals would vitiate it. '■
    As to the answer .of defendant when evidence, see 1 Desaus. 588 ; Woodcock v. Bennet, 1 Cow. Rep. 711 ; Paynes v. Coles, 1 Munf. 373 ; Drury v. Conner, 6 Har. & Johns. 228 Hagthorp v. Hook, 1 Gill & Johns. 273.
    Judge Hughes admits all requisites of power must be shown ; but says, the patent issued to Jones Wrenn, and the issuance of the patent is evidence that the requisites of the law have been complied with, and cites 13 Peters, 436, to prove this. I hardly need say to the Court, that the case has nothing to do with this. The requisites required by the law of Congress, as to entering the land, See., were there alluded to. The government, by granting the patent, admits all conditions required by it were performed. But powers on conditions, or authority to be exercised by third persons, the United States have nothing to do with. If the power required by the act of assembly was not complied with, the party was not entitled to the patent. The issuance of the patent did not cure these ; the patentees were trustees for those entitled. See Downs's heirs v. Doivns's heirs, et al., 2 How. 915.
    
      
      Robert Hughes, for appellees.
    . Before examining into the merits,of the decree in the Court below, it will perhaps be well enough to ascertain what right or title John Cook, the ancestor of the complainants, had in the estate in dispute, at the time of his death.
    In 1815 and 1817, he entered the land in dispute at the proper office, and departed this life in 1818. These entries were made under the Act of Congress, entitled, “ An act to amend an act entitled ‘ an act providing for the sale of the lands of the United States in the territory north-west of the Ohio, and above the mouth of Kentucky.’” 1 Story’s Laws U. S. 785.
    By the 5th section of that act, ail purchases were on credit as follows, to wit : besides expenses of surveying, one fourth part of the purchase-money within forty days from the day of entry, one other fourth part in two years, one other fourth part in three years, and the other one fourth in four years ; and by the same section, if the payments are not all made within one year after the time for the last payment, then all the payments previously made become forfeited, and the land reverts to the United States, and is subject to be again sold.
    By the 7th section of a previous act, see lb. 424, on payment of the whole purchase-money, a patent is to issue to the purchaser. But if there is a failure in any payment, the sale is declared void, and the land again to be sold.
    Cook having paid one-fourth of the purchase-money, he had a credit on that part of the land purchased in 1815, until 1819, and on that purchased in 1817, until 1821, to make payment of the whole amount of the purchase ; but for any portion due intermediately, if not paid, the whole sale was void. No other payments were made than the one-fourth paid at the time of the first purchase. The whole sale was then void, unless there be something found in subsequent acts of Congress giving further time. This is found in the act of 1817. 3 Story’s Laws, 1678 ; of 1819, lb. 1737; and of 1820, lb. 1772, all of which extended tlie time of payment to the 1st day of March, 1821 ; and on the following day, to wit, the 1st day of March, 1821, lb. 1807, another act is passed.
    By the 3d section of this last act, in cases situated like the one under consideration, eight years was given for the payment, in instal-ments. But by the 7th section of this act, no person is entitled to the benefit of the provisions of this, who does not on or before the 30th day of September, thereafter, file with the register a declaration in writing expressing his consent to the same. Ib. 1808.
    The complainant, by her own showing, at the time of the passage of this act was an infant of tender age, and of .course could give no consent; she knew not, and- could not know what her rights were, or that which the law required of her ; she could riot file the declaration in writing required by the act of Congress. Three-fourths of the purchase-money was unpaid, and unless the declaration in writing required was made by the 30th September, a forfeiture would take place, and the whole one-fourth, which bad been paid would be lost.
    It is usual in statutes of limitation, or statutes 'of the like description, to insert a proviso, that the same shall not operate on infants, feme coverts, &c. But where no such proviso is inserted, infants, feme coverts, &c., are as well included as others, and so the Courts have repeatedly decided. Moss v. Davidson, 1 Sme. & Marsh. 70. No benefit, therefore, was extended by the last act of Congress to the complainant, because she could not perform the condition required ; and the-failure to pay on the 1st of March, 1821, — that being the time at which the extension of time expired by the act of 1S20, before referred to, — produced a forfeiture, and rendered the sales void; and the complainant had no right whatever to the land in controversy. '■
    The Congress of the United States had been appealed to, and had declared what they would do, from which the complainant could derive no benefit. What, then, was to be done to save to the complainant that which she had ? There was nothing left but an appeal to the legislature or the Courts of Mississippi. But for the interposition of the Court or of the legislature, a forfeiture of all right to the land, and all the money paid, would take place, and to that extent a loss to the estate.
    The bill seems to be filed upon the supposition that the legislature had no power to act for the complainant, but the act to be done, should be done by the courts. An application, however, was made ■ to the legislature, and in April, 1821, an act was passed authorizing a sale by the administrator, and under this act the sale took place, and under the sale and the patent to Jones Wrenn as as-signee of Cook, the defendants claim, which raises the first question which was made in the Court below, which is,
    1. That the act of the legislature giving to the administrator power to sell, is unconstitutional and void.
    To sustain this position, the ease of Jones v. Perry., 10-Yerg. 59, is referred to. We believe the opinion referred to has no direct application to this case, but because it has been insisted that it has, and that the principle decided by it furnishes a rule for the government of the Court in this, we will give it a critical examination. That case in its facts is this : John Jones died possessed of a large real estate, also possessed of a personal estate not sufficient to pay his debts. In 1825, the legislature, upon application of the guardian of the heirs (who are the complainants), with the approbation of the minors, passed an act, authorizing said guardian to sell 450 acres of land, on which said Jones lived at the time of his death, in the best manner he could, for the interest of complainants, and the proceeds were declared assets. A sale was made to a creditor in payment of a debt, and the defendants claimed under this purchaser, and bill was filed to declare the sale void ; and the-Supreme Court in Tennessee did, in the opinion, declare the sale void, upon the ground that the law authorizing the sale, was unconstitutional, for two reasons. 1st. That the act was not the exercise of a legislative power, but one of a judicial nature. 2d. That by the act, complainants were attempted to be divested of their property, without their consent, and not by the “ law of the land.”
    As it is intended to controvert the correctness of this opinion, in the few remarks which we will submit, we must be permitted to say, that we approach the question with diffidence, not on account of any intrinsic difficulty which we are enabled to see in the case, but because of the ability of the Judges who gave the opinion under review, — none that we know of stand deservedly higher. We, however, can come to no other conclusion, than that in this case they have committed an error, and consequently are compelled, in all respect, to combat that conclusion.
    
      The first question in the discussion is — Is the act a judicial act, or is it an act of legislation ?
    To the question, the answer in the opinion under consideration is, that “ it does not partake of the character of a law, for it forms no rule of action of that uniform and universal character which Blackstone in his Commentaries says constitutes the fundamental principles of the municipal law. What is it then but a judicial decree ? It was enacted upon the avowed ground that the estate of John Jones was indebted. What then does it do but adjudge the existence of the debts, and decree that the’ lands be sold for their payment. It is to be sure, in form a law, but we are unable to see how it differs in substance from a judicial decree, and if it is in substance a judicial decree, the form in which its makers have thought proper to clothe it, cannot alter its character.”
    Now with all due submission, it is respectfully insisted, that the learned Court, who use the sentences here quoted, have fallen into a gross and palpable error, and one which we think can be made manifest by attention to a few considerations. In reviewing this part of the opinion, the question is not whether this is a law of a permanent, uniform, and a universal character, but whether the act complained of 'is -a law at all. To this question, instead of replying in the negative or affirmative, the opinion replies that it is not a law, permanent, uniform in its action, and universal throughout the whole limits of the State. The reply should have been, that it was a law, for the reason, that it prescribed a rule of action for the government of a particular guardian of minor heirs, or the management or disposition of the estate of those heirs, and so comes expressly within the definition which this same Blackstone, which is cited by the Court, gives of the term law, which in its general sense is defined to be a “ rule of action,” and its limited sense when applied to municipal law, to be a “ rule of civil conduct prescribed,” &c. Notwithstanding this, however, it'is said to be more like a judicial decree, because, the opinion says, it purports to adjudge that Jones was indebted, and upon that indebtedness decree that property should be sold to pay that indebtedness. This answer is as little satisfactory to show that the act is a judicial decree, as the other to show that it is not an act of legislation. • It is about as satisfactory as it would be to say, that the act of a sheriff selling property under execution is a judicial act, because, before he proceeds to make a levy by virtue of process of execution in his hands, he is compelled to read the process, and see whether it is by virtue of a judgment in some court of competent authority, and whether, it is in proper form to be a justification to him in the event of a suit for trespass ; these things he has to adjudge in the sense of the reasoning in the opinion under consideration. Yet it has never entered into the mind of any one, that the act of sale is a judicial act; every one knows that the act is ministerial.
    In order that we may properly distinguish between those acts which are judicial and those which are legislative, it is necessary to ascertain the exact definition of the two classes of terms. We have, to some extent, examined the term legislative ; it'is the lawmaking power, the power of 'declaring what shall be the rules of action for the government of society ; while judicial, is the power of judging, in other words, the power which by law is vested in certain persons called Judges, to pronounce the sentence of the law on a given state of facts. See Bouvier’s Law. Diet., titles Judgment, Judge, Judicial, &c.
    The misapplication of the term in this case, we think arises from not noting the difference between the term judicial, when intended to indicate the power exercised or to be exercised by a court, pronouncing the sentence of the law, and the means of ascertaining the facts upon which that sentence is pronounced. In Courts of Common Law, the- facts upon which this judicial power is exercised, this sentence of the law is pronounced, are usually ascertained by the verdict of a jury, while in courts of equity they are ordinarily ascertained by the Chancellor. But because the facts are so found by the jury or by the chancellor, it does not 'therefore follow, that the act of so finding them is á judicial act, of such a character, that when a like inquiry is to be instituted for the information of other departments of govérnment, that the inquiry cannot be made except in a judicial tribunal, and if committed to any one else, or inquired into and ascertained by that department of government for whose benefit the inquiry is made, that the department so inquiring oversteps its bounds, and its acts are void.
    
      Again, in the case of Rice v. Parkman, 16 Mass. R. 326, which was a case of the same character with this, Chief Justice Parker said, that the act was not in its nature judicial, but was a case not between parties, nor was it a decree affecting the title to the property, which in the opinion under consideration is said not to be satisfactory. “For though,” says the opinion, “usually there are two parties in each judicial proceeding, yet this is not always the case. An inquisition of lunacy and the appointment of a committee, is a case of this kind ; yet in such case, there is-an exercise of judicial power and discretion. But in the case before .the Court there were two parties; there were parties to the debts which were assumed to exist, and parties to the sale which was authorized to be made.”
    The first proposition hare insisted upon is, that, although usually, yet it is not always true, that there are two parties to a judicial proceeding; and to establish this proposition, the case of an inquisition of lunacy is instanced, where there is an exercise of judicial power, to which there is but one party. True, the act of appointing a committee in cases of lunacy, is a judicial act, for it is a declaration of the law arising upon the inquisition ; but it is a mistake to. suppose that there are not parties to the inquisition; the inquiry is made in behalf of the Crown, which hag the care of such persons, on one side, and the lunatic on the other. See Jacob’s Law Dictionary, title “ Inquest.” This proposition was insisted upon, because otherwise there was a difficulty which could not be overcome. For it is evident, that there can be no proceedings in Court, but between parties. There must be an actor, reus et judex, a plaintiff, a defendant, a subject-matter of litigation, and a judge. The instance given to avoid the difficulty is not satisfactory ; it is then abandoned, and insisted that there were parties, and they were the parties to the debts said to be due, on account of which the sale was directed by the legislature. If this is so, then the administrator or guardian applying for the sale would be plaintiff, the creditors and heirs defendants would be actors, and the property to be sold the reus, and the minor heirs would have nothing to do with it. Because these creditors were parties t'o the debts, it does not therefore follow, that they were or could be made parties to the proceedings to convert the estate from realty into personalty. How could it be any way important to the creditors ? Had they any interest in having the realty converted into personalty, or how would it affect them if it should remain unconverted ? They only had an interest that these debts might be satisfied, and whether out of the realty by a sale, or by a conversion into personalty, would no way affect them. And were a judicial proceeding ordered, they having no interest direct or indirect in the question, would not be necessary parties. The guardian being a mere naked trustee of the personalty, for the benefit of the minors, and a receiver of the rents of the realty, would not be a party to the proceedings, and the minors, although interested, being under age could not be made parties so as to give a legal assent or dissent. The proceeding would then be only a representation to the Court, upon the part of the guardian, or some one else pretending to represent the minors, that it would be for the interest of said minors that the realty be converted into personalty ; the person making the representation being no party, and there being no party but the minors, and they having no power to assent or dissent. This view we think shows there could be no judicial proceedings, because of the want of parties, and we think we have before shown, that the act of conversion from realty into personal estate is not a judicial act. But-suppose, for the present, we admit that the act is in its nature -a judicial act, we think it does not necessarily follow, that the legislature would have no power to pass such an act as the one under consideration in the case in review in Tennessee.
    We admit the principle stated in the opinion, “ That the legislature cannot sit in judgment, try causes, and apply the rules of law to them, make decrees, and much less can they make decrees in the exercise of an arbitrary power, independent of and in opposition to the rules of law.” What this, however, has to do with the case, we cannot well see. Because, for the argument, we have admitted that the act is in its nature judicial, we do not also admit that it must be done by the judicial department, or not be done at all. We think we have shown, that the act cannot be done by the judiciary, because it cannot be brought before the Courts in shape to call for their interpretation, it cannof be placed in the form of a contest inter partes. What then is to be done ; cases may arise, where it may be necessary to act for the interest of heirs, minors, by converting realty into personalty. No provision is made by law for such a case, it is a casus omissus. The legislature is applied to, to which they reply, that they do not believe it right to delegate a power of this kind to any Court, or to any person, Court or other bjcdy of men, although in particular cases it may be right, and in the case, particularly so. But their power to authorize the conversion in some mode, is unquestionable. In this dilemma, the Court in Massachusetts, in the case of Rice v. Parkman, 16, Mass. 331, stated the true principle, that the legislature having the power to delegate the performance of the act to another, may do the act themselves. “ The constituent, when he has delegated an authority without an interest, may do the act himself which he has authorized another to do, and especially when that constituent is the legislature.” See the opinion in the case referred to.
    This the Court in Tennessee consider a political fallacy advanced by the Court in Massachusetts to sustain the power claimed. Without intending any disrespect to the Court or Judge who gave the opinion in Tennessee, we must beg to be permitted to say, that the argument by which this political fallacy is attempted to be established, is founded upon a totally improper view of our institutions.
    The Court says, u This assumption places the legislature above the judiciary, and constitutes it the sovereign. It is wholly inconsistent with the theory of our government. Sovereignty resides with the people, and having delegated to the legislature, to the judiciary, and to the executive, the exercise of that portion of its coordinate departments which they consider to be most fitting to be exercised by each, they retain themselves the exclusive, paramount sovereignty. So far, then, from the legislature being the constituent of the Courts, the people are the only constituents, and all the officers of the government, in all the departments, are their agents.” It is admitted to be true, that the ultimate sovereignty resides in the people. This is the principle upon which all our institutions are based. The manner, however, in which that sovereignty is to be exercised is the question. By the passage quoted, is it intended to be intimated that in Tennessee, where they have a constitution like that in Mississippi, as to the principles upon which it rests, that the people can exercise their sovereignty in any other manner than by and through the officers, agents, and forms prescribed by that constitution. This it is presumed is not intended to be intimated.
    It is presumed, that it will be admitted, the true theory of our State constitution is, that they are not a delegation of authority, but a limitation upon the powers of .the government, and that everything which is not prohibited to the government, may be done, in the forms and by that department to which power is given to act on the subject. Were any argument necessary to prove these positions to be true, it would be found in the constitution of Tennessee, and of that of other States. We find in the preamble to that constitution, these words: “ We, the people, &c., do ordain and establish the following Constitution, or form of government; and do mutually agree with each other to form ourselves into a free and independent State, by the name,” &c. They form themselves into a society, into a free and independent State, and by their constitution vest the exercise of their sovereignty in the government created by them ; and then in conclusion, they say, u And to guard against the high powers hereby delegated, we declare that everything in the bill of rights contained, is excepted out of the general powers of government.” In other words, general powers are intrusted by this constitution to the three departments of the government; this our -free and independent government established by us, is created to exercise the sovereignty of the people, and may do whatever we could ; but, because this state would not be free, unless limited, we have attached a bill of rights to the constitution, and we declare what is therein contained to be excepted out of the general powers of government, and shall not be violated ; so that we, the people, say that we will limit our power. The constitution is a limitation, not a grant of- power. The power of the people is limited, and to be exercised under the constitution only in the legislative, executive, and judicial departments. The legislature are to make no laws which are prohibited by the bill of rights, nor are they to encroach upon the powers of the other departments ; but within their proper sphere, they are supreme, and exercise the sovereign legislative authority, and by and through them all the other departments are, if not- created, put into operation, and limited and controlled ; and the other departments, particularly the judicial, although they may not technically be said to be the agents of the legislature, because the department does'not owe its existence to the legislature, yet for some purposes they may be said to be the agents, and the legislature the constitutent. For instance, in the'case under consideration, an application is made to the legislature to permit realty of minors to be converted into personalty ; no general law is in existence on the subject; but if there was, the act prayed to be done, though in its character judicial, is not of a purely judicial nature ; because, as we have before attempted to show, there is none such, except where facts are found, and a Judge then declares what is the then existing law upon those facts, which excludes the idea of discretion. There is no prohibition in the bill of rights, and it is right that the application should be granted ; the legislature enact that it may be lawful for a Court'to authorize the act to be done. This is a mere authority ; not a purely judicial act, upon which the Courts cannot act for want of parties ; but the legislature have the power, and delegate that power to the‘Courts ; as to this delegated power, is not the legislature the constituent of the Courts? This, we think, is manifest, and the legislature may do the act themselves. We here note the diversity between those acts which are of a purely judicial nature, and those which are not, and cannot be exercised by the Court without delegated authority. Amongst those of a purely judicial nature, are such as the hearing and deciding causes inter partes ; and those not purely judicial, are such as the case under consideration, and the like.
    2. Upon the second ground insisted upon in this opinion, that the act under consideration was not the “ law of the 'land,” and therefore unconstitutional.
    In order to make out'the proposition, resort is had to the bill of rights, which has the same clause which is found in the Constitutiop of this and the other States, and in Magna Charta— “ that no freeman shall be taken &c. or deprived of his life, liberty or property, but by the judgment of his peers or the law of the land and by Coke it is shown that by law of the land is meant, a law operating on all, not limited in its operation to one portion of the community, to individuals, but operating alike on all. The best that can be said, as we believe, of this part of the opinion is, that it is a singular application of this provision of Magna Charta, and how it can in fact be applied, we cannot see. No freeman shall be disseized, &c. or deprived of his property, &c. Did this law deprive a freeman of his property ? The minors in the case'under consideration were not deprived, but for their benefit realty was converted into personalty. If the legislature had declared, that the property should be sol'd, and the administrator or guardian might pocket the money, then there would be some cause of complaint, but this was not attempted. It may be insisted, however, that even this conversion could not be made, but by the law of the land. The prohibition is, that he shall not be deprived, not that in the 'exercise of the authority of parens patrice, that the legislature may not make such regulations as they may think proper, for the benefit of minors. This authority of parens fatrm seems also to be contested in Tennessee, by this same opinion, and that Court supposes the legislature in Massachusetts derived its authority on that subject, from a clause in their Constitution, declaring that “ the legislature shall have full power and authority, from time to time, to make, ordain and establish all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, so that the same be not repugnant or contrary to the Constitution; as they shall adjudge to be for the good and welfare of the Commonwealth, and of the subjects thereof.” If the construction of the State Constitutions be such as we have insisted it is, then it follows, that the insertion of this clause was an act of supererogation. The same power and authority existed without it, and the same authority could be exercised without as with it. But although we have gone into an examination of the principles of. this decision in Tennessee, it was not because it had any direct bearing on the case, but because some of the principles contained in it were to us of a startling character, and might be brought to bear on this case. The opinion itself shows a distinction between it and this. In Tennessee, the debts of the ancestor are not a lien upon the lands descended. In this case they are, and were at the time of the passage of the law or act in contest. See Turner’s Digest, 437, 438.
    We turn then to authorities which are adjudications upon laws like tho'se in Mississippi. The case of Wilkinson v. Leland, 2 Pet. 627, was a case which occurred in Rhode Island, where by the general law as here, the heir or devisee took the real estate of the ancestor or devisee, subject to a lien in favor of creditors for satisfaction of their claims ; the land in that case was devised by a devisor in another State, and by the Court in that other State, an order was obtained for the sale of, the land, and under that order, the estate in Rhode Island was sold, which sale of course vested no estate. The executor, however, applied to the legislature of Rhode Island, and the sale by the legislature was confirmed ; the validity of this act was brought in question, and the Court, Story, Judge, delivering the opinion, decided, that this act “ divested no vested right, except in favor of a paramount subsisting lien.” “ That the act was not an act of judicial authority, but an act of legislation.” That no notice was necessary, because in Rhode Island no such notice was necessary ; “ and it would be strange, if the legislature might not do without notice the same act which it would delegate authority to another to da without notice.” “ That there was nothing in the nature of the act which requires that it should be performed by a delegate, instead of the legislature itself. It is remedial in its nature, to give effect to existing rights.” This opinion covers the whole of this part of the case, and is conclusive. By the law as it existed in 1821, when the act was passed which is in contest, a sale might he made by order of the Probate Court without' notice, and by it the rights of the complainant would have been divested. See Turner’s Digest, 494, 495. And, as said by Mr. Justice Story, we see no reason why the legislature may not have done that which they authorized others to do.
    3. But it will be insisted, that the act authorized the sale to be made upon conditions, and those conditions were not performed.
    Upon this part of the case, the opinion of the Supreme Court of the United States, in the case of Ventress v. Smith, 10 Pet. 161, is referred to, in which the Court say “ the law in this class of cases is well settled ; that executors and administrators, in making sales of property, must comply strictly with the requisites of all statutory provisions on the subject; and that, unless every essential direction of the law is complied with, all whose interests are affected bf the authority to sell are not concluded by the sale. See opinion, ib. p. 175. The correctness and authority of this opinion are admitted, but that it can be used for the purpose wished we have no idea ; we rather think it is on our side.
    The principle is sought, we presume, to be applied to the directions in the act as to the giving bond, and the performance of those directions, which are insisted to be conditions precedent, and not complied with. ■ This is the ground upon which the decree was made by the Chancellor in the Court below.
    The act is, that upon giving bond, &c. “ that he observe the rules and directions of law for the sale of real estate by administrators, and he will well and truly account for the proceeds of said sale, and that said proceeds shall be vested in such’other property as the said administrator shall deem most for the interest of said widow and orphan jointly.” The bond was given with a condition like that prescribeH in the statute, leaving out the last clause. By thp bond given we think every essential direction has been performed.
    In order to the proper consideration of this question, it is first necessary to examine what the law at the time of the passage of this act was, as to the disposition of the money produced by the sale by administrators or guardians of the real estate of minors. - There was at the time no law for the disposition other than for the payment of debts, and for the payment of the balance to those indebted. The only laws on this subject are to be found in Turner’s Digest, 438, 439, 440,494, 495. At that time there was no law contemplating the sale of real estate of minors, and the vesting the same in other estate. The question then arises, whether the act under consideration directed the proceeds of the sale of the land to be sold by it to be vested in other property. This question the act, we think, answers in the negative ; there is nothing in it in any part which so directs an appropriation. That part of the sale which is intended to be the condition of the bond is a recital or preamble, which places a limitation or condition on or to the subsequent enacting part on giving bond, &c., be'and he is hereby authorized to sell; the enacting part, or that which declares the rule, is that which makes the law, and not that which limits the enactment; the limita-tiorr is so far a part of the enactment, as that one cannot stand without the other ; but no rule is made by the limitation, except that which is a limitation or condition of the power granted by the enacting clause. Because the legislature say that the condition of the bond to be given shall be, &c., and upon giving bond with such condition,-then the administrator may sell, &c. This requisition of the condition, cannot be construed into an enactment, that in that particular case, or in any other, or all other cases, that it shall be the duty of the administrator to vest the proceeds of the sale in other property. But suppose that we are in error in this view, that the act does make it the law in this case, that the administrator, after the sale, shall invest the fund produced in other property, —then the inquiry arises, has all the essential requirements of the law been complied with ? The starting point here is, that the law at the time of giving ¿he bond was, ‘that the administrator should invest the fund obtained by the sale in other property. Was it essential that a bond be given, one of the conditions of which should be, that he would so invest the fund ? We admit that the condition of the bond should be so framed, as in effect to embrace a condition to this effect. But has this not been done ? We answer that it has, for the condition of the bond given embraces the other requirements of the act, which are, “ that the said Belfield Wrenn do observe the rules and directions of law for the sale of real estate by administrators, and that he will well and truly account for the proceeds of said sale according to law.” By this he engages to observe the rules prescribed for administrators in the sale of real estate. What are those rules ? By the law, as it stood before that act, the administrator, inter alia, was to pay over the residue after payment of debts, to those entitled upon distribution, and by this act vest the proceeds in other property. Again, he engages to account for the proceeds of said sale according to law. By law how was he to account ? He was to return an account showing that the' money had been invested in other property, or pay to those entitled. Suppose an action were brought for a breach of the condition of the bond, in not investing the money as required. Could not this breach be well assigned, for failing to pursue the rules and directions of law for the sale of real estate by administrators, in this Court, that he did not invest the proceeds of said sale in other property ? We see no reason why such a breach should not be assigned ; and if so, then it follows, that it was not essential that a bond be given with the condition insisted upon, because the object of that condition is answered ;.the administrator, by the bond, is bound to do the act required by that condition, and all the conditions precedent are complied with, and a right vested in the administrator to make the sale. There is no contest about the manner in which the power was executed. The allegation in the bill as to the sale is, that a sale was made privately, and not on notice. To this there is a denial, in answer to the bill, and an allegation that the sale, was public and on notice ; and no proof, but the testimony of one witness, who says that he understood that the sale was private. This is not sufficient to overrule the answer of defendants. The answer ofíhe defendants is responsive, and is evidence, unless there be one witness swearing as positively as the defendant, and other strong circumstances, none of which exist. So the sale was regular. But suppose we are wrong, that either the act is unconstitutional, or that the sale is void, because the conditions precedent were not performed, then we insist, -j-
    4. The Chancellor erred in his decree, because no title is or can be shown by the complainants in or to the land in dispute. This, we think is evident, fi;om the examination which we have in the commencement of this argument. The purchase was made by Cook, at a time when the government lands were sold on a credit, and he paid but one,fourth of the purchase-money, and at the time of the passage of the act authorizing the sale, the extension of time to make further payments had expired, and Cook and his heir were in default ; but in March of the same year, another act was made for the benefit of purchasers ; but before that benefit could be extended to the complainant, she had to perform a condition precedent, which in consequence of her infancy she could not perform, and her right was forfeited and gone. Then, to save what money her ancestor had paid, the sale took place for the sum of $1400, which sum her guardian received, and the purchaser paid the balance to the gov-eminent, and obtained a patent, which vests the legal title and the whole control of the estate in the patentee. And we presume this legal title will not be divested, and vested in the complainant, unless she shows some title to the thing, or unless she has a hold on the conscience of the purchaser, or those claiming under him. She has no title, because that was.forfeited by a failure to pay the purchase-money to the government, within the times required by the acts of Congress, and finally in failing to take the benefit of the act of Congress in 1821 ; and the title which she had, by payment of a portion of the purchase-money, revested in the United States, and was afterwards vested upon .good consideration in Jones Wrenn. She has no hold on the conscience of Jones Wrenn, or those claiming under him, because he not only paid her the amount of money which her ancestor had paid, but also more than one thousand dollars besides, for the assignment of her right, such as it was.
    If because the complainant Cecelia has a hold on the conscience of the defendants, which constitutes an equity, to what extent does that equity go ? Clearly no further than the amount of* the money advanced by Cook, the complainant’s ancestor, which is one-fourth of the land. See Botsford v. Burr, 2 Johns. Ch. R. 410.
    The evidence is, «that one-fourth only of the purchase-money for the land was paid to the government by Cook ; and if, notwithstanding the money and more has been refunded, a resulting trust will be declared, that will be only to the amount of one-fourth. (We say that the evidence is, that one-fourth only was paid, because the answer on that subject is responsive to the bill, and is evidence until disproved.) It would be strange, indeed, that the law should be, that the payment of the purchase-money created a resulting trust, and at the same time be decided, that one who has paid one-fourth shall have the whole land, when the other, who has paid the other three-fourths, is a party, and the trust on that account not raised for his benefit. This is a kind of equity we cannot understand.
    5. But if, upon all these questions, we are in the wrong, there can be no decree as to Mrs. Newman, because she is a purchaser for a valuable consideration of the legal title of the land she is in possession of, without notice of the equity of complainants. As to her, then, the bill should have been dismissed.
   Mr. Justice Clayton

delivered the opinion of the Court.

In the year 1821, the legislature of this State passed an act to authorize Belfield Wrenn, as the administrator of John Cook, deceased,'to sell and convey the certificates for three tracts of land in Warren county. The act is in substance as follows ; “ Whereas, it has been represented to this general assembly by Margaret Cook, widow of John Cook, deceased, and Belfield Wrenn, administrator of his estate, that,the said John Cook in his lifetime made entries of three several tracts of land in Warren county; and whereas, it has also been represented that the personal estate of said decedent is insufficient to pay the debts due from said estate, and the instalments still remaining unpaid for said land, one fourth part only having been paid, without serious inconvenience to the widow and orphan of said deceased : — Therefore, be it enacted, that the said Belfield Wrenn, upon entering into bond with sufficient security, to be approved by the Orphans’ Court of Chief Justice thereof of said county of Warren, payable to the said Chief Justice, and his successors in office, in such sum as the said Court or Chief Justice deem sufficient, that he observe the rules and directions of Jaw for .the sale of real estate by administrators, and that he will well and truly account for the proceeds of said sale, and that said proceeds shall be vested in such other property as the said administrator shall deem most for the interest of said widow and orphan jointly, — be, and he is hereby authorized to sell the right which is in said John Cook", deceased, to said tracts of land, at such time and on such conditions as he may think would best promote the interest of said widow and orphan, and to make transfer of the certificates of said tracts of 'land to the purchaser as effectually as the said John Cook in his lifetime could have done.”

In 1838 the present bill was filed by the only child and heir-at-law of said Cook, jointly with her husband, to set aside the sale^ •which was made by the administrator under this act of assembly. The Chancellor, by his decree, declared the sale to be null and void, and directed the same to be set aside ; but refused to decree an account between the parties. From this decree, both parties appealed to this Court.

The first point made in fhe argument is, that the act of assembly above recited, and under which the sale took place, is unconstitutional and void. It is insisted, that it partakes rather of a judicial, than a legislative character, that it is partial in its operation, that it is not a general law of the land, and that in these particulars it violates the Constitution. Acts of legislation of similar character have undergone judicial investigation in several of the highest courts of the Union ; in some they have been sustained, in others they have been declared void. Jones v. Perry, 10 Yerg. 59; 4 New. Hamp. R. 565; Hoke v. Henderson, 4 Dev. 1; Starr v. Pease, 8 Conn. 541; Williams v. Norris, 12 Wheat. 129; Wilkinson v. Leland, 2 Peters, 627; Rice v. Parkman, 16 Mass. 326; 10 Amer. Jurist, 297; Watkins v. Holman, 16 Peters, 26.

This conflict in the decisions of courts of the highest respectability, has induced us to bestow upon this cause much deliberation, and to hold it under consideration an unusual length of time. The point is not free' from difficulty and embarrassment, yet we cannot see that the exercise of the power in question by the legislature is in such direct conflict with the Constitution as to require us to declare the act void. This highest authority of the judiciary should never be exerted, but in cases of plain and manifest violation of that instrument by the legislature.

The legislature might have enacted a general law, authorizing every administrator to do that which by this act this administrator was empowered to do. No constitutional objection would exist to such a law. Indeed, one with provisions in substance nearly identical has been passed, and no constitutional objections have been urged ^against it. H. & H. 418. In Williams v. Norris, 12 Wheat. 129, the Court says, If the legislature may dispense with a matter in a general law, why may it not be dispensed with in a particular law, when its effect on the case is precisely the same as if it had been general ? There are, undoubtedly, great and solid objections to legislation for particular cases, but these objections do not necessarily make such legislation repugnant to the Constitution.”

In the case cited from 16 Peters, which arose under an act of the legislature of Alabama, the act was sustained. The Constitution of that State is, in this respect, word for word the same with ours. It is true, the act in that case was passed for the purpose of creating a fund to pay debts. But thfe Court says, “As it regards the question of power in the legislature, no objection is perceived to their subjecting the lands of the deceased to the payment of his debts, to the exclusion of his personal property. The legislature regulates descents, and the conveyances of real estate: To define the rights of debtor and creditor is their common duty. The whole range of remedies lies within their power. They may authorize the guardian to convey the lands of the infant; and, indeed, they may give the capacity, to the infant himself to convey them.” Again they say ; “ This is a question of power and not of policy ; and on such a question we cannot test the act by any considerations of expediency. Whether the act may be open to abuse, whether it be politic or impolitic, is not a matter now before us ; but whether the legislature had power to pass it.” 16 Peters, 62, 63. The principles here laid down extend to other cases than the payment of debts, and warrant the exercise of the power in other instances. We feel safe in following this high authority in sustaining the legislative act, especially when to do otherwise would be to annul a law, because of a very doubtful conflict with the Constitution, to speak of it in the strongest allowable terms.

It is next insisted, that this being a private act of legislation, operates only on those who petitioned for it, and those who claim under them. Comphell’s case, 2 Bland, Ch. R. 209; 2 Black. 279. This view of the matter, which assimilates the act to a private conveyance, struck us at first with much force. But the case of Watkins v. Holman, 16 Peters, is equally conclusive upon this point, as upon the other just noticed, and holds that titles under such acts, where the proceedings are regular, are valid.

It is next objected, that this act was procured by fraudulent representations to the legislature. There is no doubt but that an act obtained by fraud may be annulled by a decree of the Chancery Court. The case, however, to authorize it, must be clearly made out. In this instance, the representation was, that the personal estate was insufficient to pay the debts due and the instalments remaining unpaid for the land, without serious inconvenience to the widow and orphan of the deceased. The only proof of the fraud consists of the settlement made by the administrator, evincing, according to the argument, that no necessity for the sale of the land existed. The whole amount of sales of the personal estate was $2900, seventeen hundred dollars of which was the price of the only negro belonging to the estate, who was purchased by the widow. To this may be added eight hundred dollars of debts due the estate. The amount of debts due from the estate, inclusive of what was due for the land, was $2400. It hence appears, that the whole of the personalty, exclusive of the slave, was insufficient to pay the debts. It would probably have been a great inconvenience to the family to be deprived of the services of the only slave ; and we conclude, that the representation made to the legislature was entirely consistent with truth.

We come next to the objection, that the terms prescribed by the statute itself, in regard to the sale, were not complied with. This was the ground upon which the Chancellor decreed the sale to be void.

Questions of analogous character are not of unfrequent occurrence, and the principles which govern them are now well ascertained. In Gable v. Martin & Bell, 1 How. 561, the Court says, 11 The conduct of an administrator must be regulated by the limitations and restrictions imposed by law. His acts are only legal so far as they are justified by law. The ultimate right of property is in the distributees, and there is no way of divesting them of that right, except for such purposes and in such manner as the law prescribes. The right must remain unimpaired, unless taken away by strict compliance with law.” This is the settled and recognized doctrine. Ventress v. Smith, 10 Peters, 161; Wiley & Gayle v. White, 2 Stew. 331.

The private act in this case comes in place or in aid of the general law, and its provisions are as imperative, and require as entire obedience as those of the general law in ordinary cases. It enacts, that the administrator u upon giving bond and surety that he observe the rules and directions of law for the sale of real estate by administrators, and that he will well and truly account for the proceeds of said sale, and that the said proceeds shall be vested in such' other property as the said administrator shall deem most for the interest of said widow- and orphan jointly, shall be authorized to sell the right which is in said John Cook, deceased, to said tracts of land.” The bond given by the administrator wholly omits the last provision, that the proceeds shall be vested in other property. It is urged in argument that this condition is supplied by another, the same in effect, that he will account for the proceeds. We have no power to substitute an equivalent, and if we had, we do not regard this as an equivalent condition. In 1837, sixteen years after the passage of this act, the administrator made a final settlement of his account, in which he charges himself with $700,. as the price of this land, and shows it to be at that time still due from him. This plainly shows the wisdom of the provision, and proves the necessity of exacting its strict observance. That which was intended as a present, immediate benefit to the widow and orphan by the legislature, was withheld, until one, after the lapse of years, has sunk into the grave, and the other compelled to resort to equity for relief. If the administrator had given the proper bond, compliance with this condition could have been enforced, and the rights''of the parties secured according to the intention of the law-makers.

Upon this point we come to the same conclusion with thq Chancellor, and in this respect direct his decree to be affirmed.

We have examined the record attentively to see if the condition to purchase other property had been complied with after the sale, notwithstanding the failure to give the bond. We cannot discover that it has. If the administrator had in fact done that which he was required by law to do, it would be hard to set aside the sale for the failure alone to give the bond, when the object of the bond had been fully attained. One of the answers sets forth the payment of $700 to the widow in 1833, and alleges that the other $700 was received by the administrator, and returned in his account. The exhibit, which is made in support of this part of the answer, is a receipt for a promissory note of the respondent, and there is no evidence that it was ever paid. We cannot think that anything less than full and complete subsequent compliance would dispense with the previous condition.

There is nothing in the situation of the title to the land at the time it was sold, which prevents the rendition of a decree, declaring the purchaser, and those claiming under him, trustees.for the complainants.

Neither can we yield to the objection, that no decree can be rendered against Mrs. Newman for the part which she holds, upon- the ground that she is a purchaser for valuable consideration, bona fide, and without notice. That doctrine applies almost solely to -cases of fraudulent conveyances. In these, a purchaser of that kind without notice of the fraud, is not affected by it, although his vendor might be liable. Bean v. Smith, 2 Mason, 252; 4 Kent, 464.

But this is a wholly different question, it is one of power alone. Did the administrator have power to pass the title ? He had not, because he had not done an act which he was bound to perform before the right to exercise the power could come into existence. As the original purchaser acquired no title, neither could the derivative purchaser.

Thus far we affirm the decree. But we are of opinion that an account between the parties should have been directed ; and for this purpose we remand the cause. The following principles will form the basis of the account. Those of the parties who are or have been in possession of the land, will be charged with a reasonable rent for the same, during the time they have been respectively in possession. They will be allowed a credit for all permanent and valuable improvements now on the land, according to their present value ; but not so as to exceed the aggregate value of the rents. In other words, the complainants are not to be required to pay any money for the improvements beyond the rents. Interest will be charged on the rents from the time they fall due.. The complainants will be charged with the money paid to the government of the United States to perfect the title to the land, with legal interest from the time when paid. -They will also be charged with any money paid to them, or to Margaret Cook, the widow of John Cook, deceased, the guardian of the female complainant, either in her own right, or as such guardian, on account of said purchase, likewise with interest. They will be charged with any money paid to the administrator by the purchaser, which was by said administrator applied in payment legally of the debts of his intestate, or actually paid to the complainants or to said Margaret Cook in her lifetime by said Belfield Wrenn, the administrator. In calculating the interest, no rests to be allowed. The respondents not to be credited with any payments to the administrator, not paid by him to said Margaret Cook, or the complainants, nor applied in payment of debts of the estate by him ; because in the absence of the required bond, they would be held bound to see to the application of the purchase-money. The account as to rents and improvements, at the request of either of the parties in possession, may be so taken as to exhibit a separate statement as to each of the tenants.

These directions are not intended to exclude any other matters which may be deemed pertinent by the Chancellor.

The costs of the Court will be paid by the complainants, the respondents having succeeded in their effort to procure the taking of an account.

Cause remanded to the Superior Court of Chancery, the decree being in part reversed.

Chief Justice ShaRKEY gave no opinion.  