
    
      Johnston v. Thompson.
    [October, 1804.]
    Executors — Joint Power to Sell Land. — If, before tbe revolution, tbe testator directed, that bis executors should sell bis lands, a sale by one was void, unless it appeared that the other was dead or refused to qualify.
    In ejectment brought by Amos Thompson against Johnston, guardian of Hinton, for a tract of land, the declaration was “for a tenement with the appurtenances, lying on both sides of Sweeten’s fork of Sandy creek;” without mentioning the county.
    There was an oirder of survey, and the jury found a special verdict; which stated, that on the 7th of August, 1761, a patent for 660 acres issued to Richard Dudgeon, which they find in h<ec verba. That on the 10th of March, 1756, another issued for 250 acres, which they also find in hasc verba. That Dudgeon, being seized, died in Jan-uar3 1771, having devised the said lands to be sold by his executors; and they find his will in hasc verba, whereof he appointed Mary Dudgeon executrix, and John Dudgeon executor. That Mary Dudgeon alone qualified as executrix, and sold a part of the said lands to the plaintiff, on the 2d of March, 1778. They find the act of 1781 and 1782, (for ascertaining taxes, &c.) That the lands were taxed to the plaintiff on the commissioner’s books of Pittsylvania, at 6s. 5d. per acre. That William Todd being high sheriff for the said county of Pittsyl-vania, for the year 1786, Christian Shelton, jr., his deputy, advertised in the Gazette, dated April 7th, 1787, the said lands for sale: and, in presence of Todd, and by his direction, he sold, at auction, at Pittsylvania courthouse, in June 1787, the lands in question, for the taxes of 1786; purchased them himself; and conveyed to Todd. That he also conveyed them to the defendant. That the lands lie in Pittsylvania county.
    The district court gave judgment for the plaintiff; and Johnston obtained a writ of supersedeas by order of a judge of this court, to the said judgment.
    *Randolph, for the appellant.
    The order of survey- was neither executed, nor rescinded; and no reason is given for it, although one, or the other, ought to have been done, as it was an important document. The verdict leaves it uncertain which tract of land was sold, and whether it was one of those which the testator had devised to be sold. Mary Dudgeon could not sell, without John Dudgeon, the other executor, joining in the sale; for the power was joint, and therefore ought to have been jointly executed, Pow. Dev. 299; especially as, by the terms of the probat, liberty was reserved to him to come in and join in the probat and administration. This defect is not cured by the stat. 21 Hen. 8: because that statute expressly requires that John Dudgeon should have refused. Besides, John Dudgeon was heir at law, and the title was in him. The court will presume that the sheriff acted properly, as nothing appears in the verdict to the contrary. Johnston was a fair purchaser without notice, and therefore ought not to be disturbed. The declaration states no county, and therefore there is no certainty in the lands recovered.
    Nicholas, attorney general, contra.
    It was not necessary that it should appear that the order of survey was executed or rescinded. Por it was the plaintiff who asked it, and, if he chose to go to trial without, the other side could not complain, as they made no objection, nor asked any continuance upon that ground; of course, as the court had a discretion in the business, and do not appear to have exercised it improperly, their conduct in proceeding to try the cause, cannot be impeached: especially as the order appoints a day, and nothing further is said about it; for if it was not then executed, the order was no longer in force. It is not true, that the survey was important; for the suit was not about conflicting boundaries, but about title only. The verdict finds the land with sufficient certainty. Por it states the patents and will, and then says that the executrix sold part of those lands. The statute of Hen. 8, does not require a ^formal refusal. It is sufficient that the other executor neglected to qualify for a considerable time. Nor ought one executor to have it in his power to defeat the will by his neglect. The court will not presume that the sheriff acted rightly, unless he shews it. Such a presumption is never made ; and there is no more reason to do it in favour of a public officer than any other person. Nothing will be inferred by the court; but the cause will depend upon the verdict only ; and that finds nothing in favour of Johnston. The act of assembly, made in 1781, required four weeks notice, in one of the Richmond gazettes, Chan. Rev. 153; and the verdict only finds a single publication. This provision of the law is not repealed by the act of 1782, Ch. Rev. 172; because that act only repeals what came within its own purview. The act of 1781, also, required a publication at the church or other public places in the parish; and no such publication is found. Besides, the sale at the courthouse was improper; for it ought to have been made upon the premises. The form of laying off the land has not been attended to ; although the act expressly prescribed it. That Johnston was a purchaser without notice, makes no difference, which Randolph now admitted and relinquished that point. The verdict finds that the land lay in Pittsyl-vania county; which removes the objection relative to the omission of the county in the declaration.
    Call, on the same side.
    It was not necessary, that the order of survey should have been executed or rescinded, which Randolph now admitted, and gave up that point.
    The verdict ascertains with sufficient precision that the lands sued for by Thompson, are part of those devised to be sold. 1. Because it first states the patents, then the seisin under those patents, and concludes with saying that he devised the lands aforesaid to be sold by his executors. 2. Because it afterwards says, that Mary Dudgeon sold part of the lands, being the lands in the grant aforesaid described. 3. Because the deed describes the same boundaries *mentioned in the patent; and they both call for the same water course with the will. These findings describe the lands with so much certainty, that it is impossible to mistake them; and therefore this exception of the appellant’s counsel is altogether untenable.
    Mary Dudgeon could sell, as John Dudgeon had neglected to qualify. Because it is within the reason of the stat. 21 Hen. 8, chap. 4, which gives power to those who qualify, to sell, where the others refuse. 1 Statutes at Large, 368; 1 Bac. Ab. new' ed. 316. For although that statute uses the word refuse, yet, if the executor neglects to qualify, it ought to be considered as tantamount to a refusal. Por the estate ought not to remain unadmin-istered either from the perverseness, or, to use the language of the statute, the uncharitableness of the other executors. Accordingly, it has been held that forbear* ing to qualify, for a great length of time, was the same thing as refusing to qualify. Moor, 273.
    This interpretation will the rather be made, because being a remedial law, intended to redress a mischief, the remedy ought to be advanced, and the mischief suppressed. 1 Black. Com. 87. Therefore the statute should be taken, by equity, in an enlarged sense, so as to include cases falling within the reason of those particularly named. 6 Bac. Ab. 384, 387; Plowd. 467; Beaumarchais v. The Commonwealth in this court, 3 Call, 122. Accordingly this statute has always been favourably expounded : Thus, although the statute only speaks of cases where the testator devises that his executors shall sell his lands, yet, by a favourable construction, it has been extended to cases where the testator devises his lands to his executors to be sold. 1 Bac. Ab. 316; Co. Eitt. 113. Which proves that, in the opinion of the judges, the statute ought to be favourably expounded, and extended to cases within the reason, though not within the letter. Now the present case is within the reason of the act. For when a man may qualifj', and declines to do so for a great length of time, he, in effect, refuses to act: because there is no reasonable difference between a refusal and a voluntary neglect. •
    *It does not make any difference that liberty was reserved to the other executor to come in and qualify. 1. Because that was a work of supererogation; for he would have had a right to do so without. But, at any rate, it creates no difficulty in the discussion. For it does not make him ipso facto executor, but only gives him a right to administer; which he could not do, without giving bond, and that he never did. But if.the person named will not qualify, he is not executor; but must be held to refuse ; for what is a refusal, but a total neglect to accept 'the trust? And there are instances in which the law appears to have so considered it. For if an action be brought against the qualified executors, they cannot plead in abatement that others were named in the will, without stating also that they had administered, Richards’s Wills, 332; 9 Co. 37, which • shews that prima facie the law implies a refusal. 2. Because it is the delay to qualify which creates the inference of a refusal; and that applies as well when the liberty is reserved, as when it is not.- For when a man has it in his power to accept, and does not, it is a refusal. Because his refusal may- be collected from his actions as well as from his words: which is agreeable to the rule of the civil law, Recusari hasreditas non tan-tum.verbis, sed etiam re potest; and so was the decision in Moor, 273. This reasoning is the stronger in the case of anh'eir at law, whose lands were sold away from him, and who was therefore called upon by interest to interfere in the business. 3. Because if the other executor had been summoned, and had made default, all the books agree that it would have been tantamount-to a refusal. But such a summons was not necessary in the present case: First. Because it is never practised in this country. For it is no part of the common law, and therefore never was adopted here. Besides the practice would have been useless with us: for the act of assembly having required that the will should be recorded, the record becomes constructive notice to all the world; and therefore it operated as a summons to the other executor. Of course, if he delayed '^afterwards, it was equal to a default after summons. Secondly. Because it is never practised, even in England, in those cases where one executor has qualified. Because the will having been approved, and the effects committed to a proper person, the court concerns itself no further about the business: for the reason of a summons in the first instance is; to prevent the future probat from destroying the mesne acts of the administrator; which it would do, if administration were committed, without a previous summons. Thirdly. Because a renunciation may be by parol; and after several years the court will presume all necessary solemnities. Swinb. 449. Fourthly. Because there is a difference between such a refusal as would bar the right of the party altogether, and such a refusal as will prevent his defeating the mesne acts of those who qualify. Thus a delay to qualify after summons in England justifies letters of administration upon the ground of refusal: the executor, however, may’, nevertheless, qualify at a future day: but such qualification will not defeat the mesne acts of the administrator. Richards’s Wills, 395; 3 Bac. Ab. 51. So here the other executor might have qualified at a future day; but without prejudice to the mesne acts of the executrix. The result is, that as well upon an equitable construction of the statute of the 21 Hen. 8, as upon the general principles of the law relative to executors, the delay in this case was equal to a refusal; and therefore, by the necessary operation of that statute, the sale by the executrix alone was good.
    But Johnston cannot object to the title; because he claims under it himself: for the taxes were charged to Thompson, and the lands were sold to satisfy them. So that Johnston is a purchaser under him; and therefore they both claim from Mary Dudgeon’s deed. But the constant practice in ejectments is, not to suffer the defendant to object to the source of the plaintiff’s title, if he claims under it himself. Thus if both claim under the same patent, neither shall impeach it. Which is expressly agreeable to the doctrines of estoppel; Com. Dig. 85; and the law is so laid down in 1 Term Rep. 760, n.
    Again more than twenty ' years had elapsed from the death of the testator to the time of the trial of the cause, without any interruption from John Dudgeon, either as executor, or heir at law; and that was a sufficient title to maintain the plaintiff’s action, against a stranger, or tortfeasor. (Tucker, Judge. That is only true where the plaintiff has had an uninterrupted possession for twenty years.)
    The sale by the sheriff was illegal, and void: 1. Because he ought to have advertised it at the church or other public places in the parish. Chan. Rev. 153. The act of 1782 makes no difference. For the sheriff would have-been bound to advertise in convenient places, whether any act had directed it or not; because it is agreeable to the laws of morality and justice that he should give notice in such a manner as would invite purchasers; and therefore a failure to do so would be considered as fraudulent. Besides, as the act directs it to be done in all other cases, even in that where the property is to be sold on a month’s credit, why should it not be so in this? The mind is at a loss to conceive a reason for it; and therefore the court will require very positive language before they assent to the proposition. But there is no such language; there is nothing to beget the exception. For the act of 1782, Chanc. Rev. 172, only repeals so much of all other laws as comes within its own purview. But that act does not say that there shall be no notice, or that it shall be given in any particular way: It merelj' provides that the sheriff shall sell, but the mode of sales is left undefined; of course there is nothing repugnant in this respect between the act of 1782 and that of 1781; the latter is therefore not within the purview of the former; and of course not repealed by it. Brown v. Turberville, 2 Call, 390. Especially as the act of 1782 is but an amendatory law; and therefore must necessarily be understood as intending to retain all that is contained within the act of 1781, which is not expressly abrogated. 2. Because the sheriff ought to have sold the smallest number of acres in the most convenient form, and according to an actual survey. *Chanc. Rev. 172. Which ought to precede the sale, in order that purchasers, knowing the land they bought, might be induced to give a better price. 3. Because it does not appear that the land sold for three fourths of its value, agreeable to the directions of the act, Chanc. Rev. 172: which ought to have appeared, before the sale could be supported. For although it was to be according to the sheriff’s own opinion, yet that begat “a discretion, which he was bound to exercise in a proper manner; and which he could not abuse. But here it could not have been exercised properly; for it is impossible that such a tract of land, in one of the richest counties in the state, could have sold for so small a price, if the sale had been discreetly made: at least that could not have been three fourths of the value of such a tract, or if it had, Johnston should have shewn it, as it was necessary to consummate his title.
    For the court will not presume any thing in favour of the sale. 1. Because the whole complexion of the cause shews that it is a case not entitled to favour. For it is impossible, as before observed, that the land could have been properly sold, or it would have produced more money. 2. Because the plaintiff having proved his own title, the defendant, in order to- defeat it, ought to have shewn a better, or circumstances which were sufficient to destroj it. But this he could not do, without shewing that the requisitions of the act had been complied with; for they constituted a part of his title, if he had any. , 3. Because the law will not presume that the public officer did right, more than another person. For a ministerial officer, who acts ex parte and without any person to check or except to his conduct, is bound, in all cases, to shew he acted rightly. Because he is a party interested, bound to act according to a prescribed rule, and therefore under a necessity of justifying his transactions by proof.
    The declaration describes the land with sufficient certainty. Because the boundaries are particularly stated; and the only use of mentioning the county would be to ascertain the jurisdiction of the court, for it is useless to lay a venue here, *as the juries are . composed of bystanders. But if it was without the jurisdiction, the defendant should have pleaded in abatement, 1 Black. 197; and not lain still, in order to take advantage of it on the trial: The fact however is, that the lands lay in Pittsyl-vania, and so the verdict finds, which totally destroys the exception. Besides, if it had not, yet the act of assembly, Rev. Code, 112, PI. edi., puts an end to the controversy upon this point. For it expressly declares that no exception to a declaration in ejectment shall be taken, after issue joined upon the merits; and so it was decided in Duval v. Bibb, in this court, 3 Call, 362.
    Randolph in reply.
    The rule of the common law is fixed, that a naked authority to two cannot be executed by one. Pow. Div. 293. Therefore Mary Dudgeon could not s.ell without the other executor: for the devise was not in their character of executors, but in their natural capacity. That statute 21 Hen. 8, does not apply; for refusal and omission are not the same. Refusal means a declaration, in positive terms, that he will not act. But a few years only had elapsed from the probat of the will to the time when the executrix sold the lands;- and therefore the argument founded on the length of time is not important; especially as it does not appear that the executor was ever summoned, or made any actual renunciation. That this is a remedial law makes no difference; for a remedial law does not give any other powers than it expresses. The confidence is given to two, and not to one; and the construction, contended for on the other side, would make a will for the testator. The statute Hen. 8, does not admit of the equitable interpretation insisted on: and the favourable construction mentioned in 1 Bac. 316, was a different kind of case from this; for it supposed a refusal; and there the court of chancery would have decreed a sale. The liberty reserved to John Dudgeon gave him the right to come in at any time; and therefore the plaintiff ought to have proved his refusal, The recording of the will makes no difference; for that was not *notice. Although it be true, that where two claim under the same title, neither can impeach, it, yet that principle makes no alteration in the present case; because the defendant claims under the commonwealth : for it is not important, from whom 'the taxes are claimed, since it is the land which owes them. Chan. Rev. 153. And a different construction would defeat the revenue laws; because it would tend to avoid all sales. The doctrine of estoppels therefore does not apply. The sale was not improperly conducted: nothing of that kind is found; and nothing is to be presumed in a special verdict. If there had been any thing improper, the plaintiff should have proved it; -for the defendant was not bound to prove that there was no property; or any other matter of that sort; especially as the public officer ought to be presumed to have acted rightly. However, if the facts omitted be material, a venire facias de novo ought to be awarded.
    Cur. adv. vult.
    
      
      The president was indisposed; but judge Car-rington said, that be was directed by bim to mention that be concurred with tbe rest of tbe court in affirming tbe decree.
    
    
      
       Executors — Joint Power to Sell Land. — Tbe principal case is cited in Dunn v. Renick, 40 W. Va. 363, 22 S. E. Rep. 71. See monographic note on “Executors and Administrators” appended to Rosser v. Depriest, 5 Gratt. 6.
    
   TUCKER, Judge.

The special verdict is peculiarly defective. For, although it is possible that the convej'ance from Mary Dudgeon, the executrix of Richard Dudgeon, may have been an effectual execution of the power given by the will, yet as it is neither found that John Dudgeon renounced the executorship, nor was dead before the sale was made by her, I conceive this to be a defective finding in the verdict. Nor can this defective finding be aided by the length of time since the plaintiff’s possession under that conveyance begun, unless the court will infer, which I apprehend they cannot, that his possession continued for twenty years before the day of the ouster alleged in the declaration, which is laid to have happened on some day in 1795, which is less than eighteen years. For it is not found when the defendant 'entered; but barely, that he was in possession when the ejectment was brought. I doubted at first, whether since the special verdict shews a derivative title from the plaintiff to be in the defendant, this circumstance might *not have rendered it unnecessary to trace the plaintiff’s title further back; but, although I incline to think that such a circumstance might have availed the plaintiff, either in an action of trespass quaere clausum fregit, or of replevin (especially if the defendant had set forth his title in pleading) yet I am of opinion that in ejectment, he must shew a clear posses-sory title in himself, or the defendant may rely on his naked possession, as sufficient to repel his claim.

But if the title of the plaintiff is defectively found, that of the defendant is not less so. It is distinctly found, that the plantiff entered and was possessed of the lands under his deed from Mary Dudgeon. That the lands were taxed to him; and that they were sold by the high sheriff for the taxes due for the year 1786. Now, the taxes for the year 1786, became due on the 1st of January, 1787, Virg. Laws, 1785, ch. 38: but, although they became due on that day, they might have beén paid on that, or any subsequent day; and the verdict does not find that they were in arrear and unpaid; nor can the court infer it. And, unless they were in arrear, not only at the time of advertising the lands, but at the time of the sale, the sheriff had no authority to sell. The law gives the sheriff power to distrain the lands; and if the tax be not paid within five days, he may then proceed to advertize them, at the church, on the next Sunday, or other public places within the parish, after the expiration of the said five days. But it is not found that he did distrain the lands, nor that he did advertize them, after the expiration of the five days, either at the church, or at a'ny other public places, (of which there ought to be two at least, for 'the act is in the plural number,) within the parish: such an advertizing, even ■within the county, would not have been sufficient, unless it was also within the parish. The law directs that the sheriff shall give at least four weeks notice in the public papers; which, I apprehend, means notice for four weeks successively; but, at all events, the notice must be given in more than one public paper; for the act is plural in this respect also: but only one advertizement is *found in the ver-diet. The law requires, that the smallest number of acres be sold that the lowest bidder will pay the taxes for. This is not found by the jury ; nor is the amount of the taxes due found directly, although it might, possibly, be made out by referring to the law, and by calculating the amount according to the rule which the valuation of the land by the commissioners, and the amount imposed -by law might furnish. It is not found that the lands were laid off by the surveyor of the county, by the direction of the proprietor, or his agent; or of the sheriff upon his neglect to do it, in such manner as least to injure the tract: all which the law seems to require. It is not found, that the sum bid for the lands, (evidently not more than one per cent, of their value, as assessed by the commissioners,) was equal to three-fourths of their value, as it ought to have appeared, when the sale was made for ready money. Lastly, and without which, the lands, I apprehend, could neither be sold, nor even distrained, it is not found, that no other sufficient distress for the taxes in arrear could be found upon the lands. Virg. Laws, ch. 39, Oct. 1782, ch. 8.

Where an act is so highly penal, as that a man may absolutely lose his whole property for a few days neglect in the payment of a tax which has never exceeded one hun-dreth part of the valuation thereof by sworn commissioners; and where the law has left the power of enforcing that penalty, in the hands of a mere ministerial officer, who may, as in the present case, become the purchaser of the land himself, for the bare amount of the tax thereon due, I deem it indispensably necessary, that every previous circumstance which might authorize the proceeding, and every subsequent step necessary to its legal consummation, should be made clearly and distinctly to appear to the court, that they may judge thereof.

I will mention another circumstance which occurred to me in perusing this record. The quantity of lands advertized, or so much thereof as will be sufficient to pay the taxes thereon, is 300 acres only, and the quantity expressed *in the deed is 280 acres; being the residuum of 900 acres, on which the taxes were due. This betrays a want of correctness which may deserve notice hereafter.

I am therefore of opinion, that there should be a venire facias de novo.

ROANE, Judge.

I have not considered the defendant’s title; but the deed being made by the executrix only, was nota sufficient execution of the power, as the jury have not found whether the other executor renounced, or not. The special verdict is therefore defective in a material point; and consequently there must be a venire facias de novo.

FLEMING, Judge.

I concur, with the other judges, that the verdict is imperfect; and that there ought to be a venire facias de novo. The principal doubt, with me, is respecting the title of the plaintiff, who claims under a conveyance made by one of the executors only, when the testator directed that his executors shall sell his lands, and appointed two executors. That doubt would, perhaps, have been removed, if the jury had found, whether John Dudgeon, the other executor was dead ; or had refused to qualify previous to the sale and conveyance of the land to Thompson.

The judgment of the district court is to be reversed; the verdict set aside; and a venire facias de novo awarded.  