
    Elstner v. Fife.
    1. It is not error to overrule a general objection to all the testimony of a witness, where part of it is admissible.
    2. Where a testator makes no disposition of his real estate, other than by directing that it shall be sold by his executors, and the proceeds paid to a trustee, named in the will, for the benefit of certain legatees, the legal title to his real estate descends to his lieirs, subject to the execution of the power conferred on the executors ; but the right of possession passes with the will to the executors, to enable them to effect the objects of the testator.
    3. Where such executors, after accepting the trust, resign their office as executors, their authority to execute the power of sale conferred by the will upon them as executors, expires with their office.
    4. Under the provisions of section 59 of the wills act of March 23, 1840, as amended March 8, 1845, where a will directs land to bo sold by the executors, and they resign without having executed the power, the sale or conveyance, or both, may be made by an administrator with the will annexed.
    5. Where an administrator with the will annexed, in the execution of such power, sells land and gives the purchaser a title bond and possession of the premises, the purchaser acquires thereby an equitable right, on payment of the purchase price, to a conveyance of the land; but such purchaser has no right to demand a conveyance until the purchase-money is paid.
    C. Where such administrator resigns his office, and wholly abandons the administration of the estate, his authority under the statute to execute such power conferred by the will ceases; and a deed, made by him afterward, of land sold to him while in office, and before the purchaser is entitled to a deed, conveys no title to the land.
    7. Where neither party has the legal title, the rule which protects a bona fide purchaser without notice does not apply ; and where, in such case, the equities are equal, the oldest equity must prevail. Nor is the rule available against one who unites in himself both the legal and equitable title.
    8. Where a testator directed his land to be sold by his executors, and the proceeds to be paid, at a specified time, to certain legatees to whom he bequeathed his whole estate; and, in execution of the power of sale, the land was sold, and possession with a title bond was given to the purchaser, but the purchase-money had not been paid nor the conveyance of the land made when the time arrived'for the payment of the money to the legatees: Held, that the legacies were an equitable charge upon the land, and that the legatees had the right in equity to subject the land to the payment of the purchase-money.
    Error to the District Court of Clinton county.
    On the 4th clay of March, 1870, John C. Elstner and Eliza J., his wife, and Thomas B. M. Jeffrey and Mary E., his wife, brought their action in the Court of Common Pleas of Clinton county, against Matthew Fife, James Killen, surviving executor of Joseph Reed, deceased, Oliver F. Mitchell and wife, and Chauncey F. Truesclale, heirs of Beebe Truesclale, deceased, and Levi Gtustin, administrator de bonis non of Joseph Reed, deceased.
    They allege in their petition that Eliza J. and Mary E. are legatees of Joseph Reed, a resident of Clinton county, who died in 1848, the owner of part of lot No. 69, in Wilmington, in said county, and that Beebe Truesdale and James Killen wrere, by the will of Joseph Reed, made executors of the will. Killen and the'heirs of Truesdale are made parties.
    They aver that the executors proceeded to settle the estate, and collected assets to the amount of $364.39, and paid debts, including allowances to themselves, amounting to $269.80, leaving in their hands, April 3, 1849, $94.78, when they resigned, and that the personal property was more than sufficient to pay all the debts of the estate, which is not denied in the answer.
    They aver that the will of Joseph Reecl directed his executors to sell his real estate, and pay over the proceeds thereof, to be invested for the benefit of said Eliza J. and Mary E., daughters of the testator ; but that the executors neglected to make such sale, and, on the 3d clay of April, 1849, resigned, when Levi Gustin was appointed administrator de bonis non of the estate, who accepted the trust and gave bond as required by law.
    They aver that the proceeds of real and personal property of the estate was to be, by the terms of the will, divided between the said legatees at the beginning of the year 1870, and they make a copy of the will a part of the petition.
    They allege that Matthew" Eife is in possession of lot No. 69, claiming title thereto ; but they say he has' no title as they believe; or if any he has, they hold it in trust for said legatees.
    They pray that the surviving executor, and the heirs of the deceased executor, may be ordered to convey said lot to said legatees, or that they execute the trust; that Eife .may disclose any title he may have; that he may be held as a trustee for the benefit of the legatees ; that an account may be taken of rents, and for any relief they may be justly entitled to.
    The will is as follows :
    “1. It is my desire that all my just debts and funeral expenses be fully paid.
    “ 2. Believing that the laws of the state make ample provision for the -widows of persons dying intestate, I give and bequeath to my beloved wife, Lucy Reed, formerly Lucy Peebles, all the property which she wmuld hold under the law as my widow, precisely the same as if I had died intestate.
    “ 3. I give and bequeath to my negro woman, Snid, now residing in Barren county, Kentucky, her full and perfect freedom, hereby manumitting her free.
    “ 4. ■ On condition that she shall voluntarily remove to and reside in the State of Ohio, I give and bequeath to her, the said Snid, in addition to her liberty, a comfortable support, to be furnished her out of my estate by the trustees hereinafter named, or appointed as hereinafter provided, when, from sickness or old age, she is unable to support herself out of the proceeds of her own labor. If, however, she is unwilling to remove to Ohio, and my bequest of manumitting can not by reason of legal impediments, be carried info execution in the State of Kentucky, then I desire that she shall be held by said trustees as a servant in Kentucky, who shall hire her to such person or persons as she may desire to live with there, and appropriate all the avails (whether earned heretofore or hereafter) of her labor, to her sole benefit and use, seeing to it that the same are not foolishly and imprudently squandered, but economically applied to her own support when she shall stand in real need of the same, and in no event shall the proceeds of her labor, or any part thereof, be applied to any purpose except for her own use, unless she shall, in her last illness, desire some other or different appropriation of any residue of the same, after her decease, and then such residue shall be appropriated by said trustees as she may desire.
    “ 5. I desire, and hereby direct my executors, or the survivor of them, to sell and convert into money as soon as the same can be done on good terms and without sacrifice, all my property, both real and personal, hereby expressly authorizing them or the survivor of them to sell either at public or private sale, and on such reasonable terms as will be most conducive to the interest of my estate, and to pay the money thus acquired into the hands of the trustee hereinafter named, and to take his receipt therefor, which shall be a full and complete voucher to them for the same.
    . “ 6. I desire, and hereby direct my trustees,'hereinafter named, or appointed as hereinafter directed, to invest the moneys received as aforesaid from my executors as soon thereafter as the same can be prudently done to the best advantage for my estate, in the stock of some safe and solvent bank, and as dividends shall accrue thereon he shall, from time to time, make a like investment of them, until the year of our Lord one thousand eight hundred and seventy, and that said trustee shall have, for his care and trouble about this -business, whatever the court of cqmmon pleas within and for Clinton county may allow to him as a reasonable compensation for the same.
    “ 7. I give and bequeath to my two daughters, Eliza Jane Roed and Mary Elizabeth Reed, and to the issue of their bodies, or in the event that either of them shall die without issue, then to the survivor and her heirs forever, to be paid over to them in equal moities, that is to say, to the said Eliza Jane and Mary Elizabeth in the year a. d. 1870, and not before, by my trustees, hereinafter named or appointed as hereinafter directed, if they shall then be living. If either of them shall have died previously to that time leaving children upon her body begotten, then I desire that those children shall take her portion; but if either of them shall have died at that time without issue, then I desire that the survivor of them and her heirs shall take the whole of my property which has been required to be given, as set forth above, to the trustees hereinafter appointed as hereinafter directed.
    “ 8. I do hereby name and appoint David Linton a trustee, to receive and hold all moneys and property hereinbefore directed to be placed in the hands of a trustee or bequeathed to a trustee for, and dui’ing the time therein specified, and to execute all trusts herein created, that he shall render unto the court of common pleas within and for the county of Clinton, Ohio, a true and faithful account of all his proceedings as such trustee at least once in five years, and oftener if thereunto required by said court; but previous to his receiving any part of my estate, I do require him to enter into a bond, payable to the legatees named in the seventh item of this will, conditioned for the faithful execution of the trusts imposed by this will, in such an amount and with such freehold securities as said court may approve, that in the event of the said Linton or his failure to comply within a reasonable time with the requisitions aforesaid, then I direct my executors to make application to said court to appoint some good and respectable man to take such bequest.and execute such trusts as are conferred upon said Linton, requiring him to enter into the same kind of a bond that I have of said Linton.
    
      “ 9. And finally I do constitute and appoint Deebe Trues-dale and James Bullen executor- of this, my last will and testament, hereby revoking all former wills by me made.”
    The defendant, Eife, answered that Levi Gustin, as administrator de bonis non with the will annexed, of Joseph Reed, sold said lot No. 69 to Isaac Strickle and George D. Haworth, who took possession thereof; that Gustin soon after conveyed the same to said Haworth or some of his assigns; that the deed has been lost; but that he holds title under said Gustin, so made by him. The other defendants did not answer.
    The plaintiffs replied to the answer, denying that Gustin sold and conveyed the lot in question, and that he had any authority so to do; and they say that if there was an attempted sale it was never consummated; that no consideration was paid; and that no title to said lot ever passed from said Gustin to any pretended purchaser thereof.
    The common pleas dismissed the petition, and the case was appealed to the district court. That court found the equity of the case for the defendant, Fife, and dismissed the petition. A motion for a new trial was made by the plaintiffs, on the ground that the finding and judgment of the court were against the law and the evidence. The court overruled the motion, to which the plaintiffs excepted and took a bill of exceptions, embodying all the evidence.
    The errors upon which a reversal of these judgments is sought, together with the facts of the case, are sufficiently stated in the opinion.
    
      T. Q. Hildebrant, of Hildebrant, Stone & Walker, for plaintiffs in error:
    Taking the whole will together, it is manifestly the intention of the testator to give his executors a power with an interest, because he intrusts to them a discretion. He treats them as his confidential agents. The legatees have nothing whatever to do with the property, nor the proceeds, until the year 1870. The trustees to be appointed had nothing to do with the property, only to - secure the proceeds. Dobney v. Manning, 8 Ohio, 321; Williams v. Beach, 17 Ohio, 171; Boyd, v. Talbert, 12 Ohio, 212.
    All the discretion given by the will over the property is given to the executors.
    He gives them power to sell, which includes power to convey and give acquittance for the purchase-money. Perry on Trusts, § 806; 4 Ves. 97.
    See also Perry on Trusts, § 250; 5 Ves. 503-505; 8 Ves. 574.
    Trusts are sometimes implied from powers. Perry, §§ 248, 249-258.
    It has always been the law of Ohio, that advice to executors to sell was a personal trust. Henry v. Doctor, 9 Ohio, 49. And on the resignation of the executors the trust still remained in them, and on their death descended to their heirs. 2 Ohio, 126; DePeyster v. Clendening, 8 Paige’s R. 295.
    But it is claimed by the defendants, that the act of March 8, 1845 (2 S. & C. 1629), amendatory to the 59th section of the wills act, gave authority to Gustin to sell under the will. This we deny.
    By the decisions in New York, from whose statute ours was literally copied, a contrary doctrine is clearly established.
    If this will gives a power to the executors, coupled with a trust, then the enactment does not authorize a sale, for it does not apply to personal trusts and confidences, but only to the general functions of executors in settling up estates. Conklin v. Edgerton, 21 Wend. 430; Conklin v. Hdgerton, 25 Wend. 224; Room v. Phillips, 27 N. Y. 357, and cases cited; 4 Sand. (S. C.) 374-378, page 295; Ambler, 98; Perry on Trust. § 500.
    If rve are correct, the purchaser took nothing by the sale of July, 1849, not even an equity.
    But admitting, for the sake of the argument, that Gustin had authority to sell, he did not exercise the power so as to force the title of the purchaser from the incumbrance of the trust, because this is a specific trust. Clyde v. Simpson, 4 Ohio St. 445-464; Bank of Muskingum v. Carpenter, 7 Ohio (pt. 1), 21; 2 Ohio, 126.
    Iu this case only a small part of the purchase-money was
    
      There can be no title without payment of the purchase-money. Perry, §§ 739, 793; 2 Story Eq. 1219.
    The purchaser knew there was a breach of the trust, that the purchase-money had not been paid. Their title was traceable through the will of Joseph Reed; they were bound to take notice of its provisions, and were put on inquiry as to every fact connected with the settlement of the estate; and once put upon inquiry, they were bound to take notice. Perry, § 800, and cases cited; 11 Simmons, 152; 7 Ohio (pt. 1), 21, above; 12 Simmons, 528, cited; 4 Ohio St. 445; 15 Peters, 93.
    The same when a person deals with, the trustee long after the trust should have been executed.
    We claim that there is no distinction between estates devised in trust, and those only charged with the payment of debts and legacies. The character of the executors is the same. They are trustees. 2 Sugden on Vendors, 38, note 2; 2 Story Eq., § 1127.
    The evidence shows a clear breach of the trust on part of Gustin, and also on part of the executors. They accepted the trust, then failed to convert the property into money as directed. All this was known to the purchasers. For that reason, also, they hold the property subject to the trust created by the will, and are bound to see that the purchase-money is paid and properly applied. 2 Sugden, 89; Watkins v. Chick, 2 Sim. & Str. 199; Gardner v. Gardner, 3 Mason, 178; 4 Ohio St. 445.
    
      Harrison, Olds & Marsh, and W. B. Telfair, for defendant in error:
    Counsel for the plaintiffs claim in argument that Fife had constructive notice of want of title in his grantor, or of some lien for purchase-money, from the fact that a complete chain of title did not appear on record. We submit that this is not so. The proof is that Fife had no notice, actual or constructive, of any infirmity in the title, and that he was an innocent purchaser.
    But if there was a right of action to recover unpaid purchase-money, or to enforce a vendor’s lien, such right of action was not in the plaintiffs. Davis et al. v. Corwin, 25 Ohio St. 668.
    If this court should be of opinion that the district court should have found that Eife had color or made claim of a title or interest adverse to the plaintiffs, and invalid as against them, still the plaintiffs would not- have showh themselves entitled to any equitable relief. They were not in possession, and therefore could not maintain an action to quiet title. The defendant held possession adversely to all the world, and held such possession either rightfully or as a mere trespasser.
    Moreover, the plaintiffs did not, in their pleadings, set up any facts entitling them to recover unpaid purchase-money, or to enforce a vendor’s lien, or to quiet their title, or pray for such relief.
    There was no testimony offered tending to show that said Eife took possession of or held any title to said premises in any trust, express or implied, for the plaintiffs.
    If Gustin had not power under the will to sell and convey the land, or did not sell or convey it, then the title thereto was in the plaintiffs, and they could in a proper action, and in the proper court, recover a judgment for the possession of the land; but they were not entitled to any equitable relief against Eife.
    If Gustin had power to sell, and did sell the land, but did not convey it, then the plaintiffs were not entitled to any equitable relief. In such case, if the land had been sold and paid for, the equity was wholly with the purchaser or his assigns. If sold and not paid for, then, before conveyance, an administrator might enforce a vendor’s lien, but after conveyance, even he could not enforce it against a subsequent innocent purchaser. If, after a sale aud before full payment or conveyance, the plaintiffs have any rights against Eife, it was, after the requisite demand and tender, to rescind the contract of sale, and then to recover in ejectment.
    If Gustin, as administrator with the will annexed, had power to sell the land, then, not only have the plaintiffs no equity as against him, but the title of Eife was perfect in law and equity.
    If the executors named in the will, or the survivors of them, had sold, there would, we submit, be no room for controversy as to their power. The power given to them is not discretionary, but the direction to sell is peremptory. The plain intent is that at the time and upon the terms mentioned, the administrators of his estate shall sell said property, real and personal.
    The statute of March*,8, 1845, was in force when the will was made and when it became operative, and when the land was sold.
    This act of 1845, was not repealed until January 15, 1869 (66 Ohio L. 4), and said 57th section of this act of March 23, 1840, was not rejoealed until May 3, 1852. They were the law of the land, and, therefore, a part of the will of the testator, when the will was executed and when it took effect, and also when this power of sale was executed.
    Reed and Fife were bona fide purchasers. A bona fide purchaser for value, without notice, is a good defense, not only against all prior equities, but against all adverse proceedings in equity. 2 Leading Cases in. Eq., part 1, p. 50; Vorneck v. Briggs, 6 Paige, 323, 328, 329; Jackson v. Green et al., 8 Johns. 137, 139; Jackson v. McChesney, 7 Cowan, 329.
    What had these purchasers to take notice of? The sale to them was made under a power to sell and convert into money.
    Payment to Gustin, administrator de bonis non, is sufficient. Wormly v. Wormly, 8 Wheaton, 443; Coonrod v. Coonrod, 6 Ohio, 55.
    When a trust is' defined, payment to the trustee is sufficient, whenever the money is not merely to be paid over to third persons, but is to apply upon trusts, which require time and discretion, as where the trust is to lay oui? money in the purchase of an estate. Coonrod v. Coonrod, 6 Ohio, 57; Sug. Ven. 333; 2 Sug. Ven. 32; 2 Story Eq. § 1129; Clyde v. Simpson, 4 Ohio St. 445, 463.
   Day, J.

It is claimed in behalf of the defendant that the case is one in which the plaintiffs had no right of appeal to the district court, and that, therefore, the judgment of the common pleas in favor of the defendant must stand, though that of the district court should be reversed.

No motion was made to dismiss the appeal, nor has any objection to the jurisdiction of the district court been taken in any form oilier than that now taken in argument; nor would such objection have been of any avail to the defendant, if it had been interposed of record at an earlier stage of the case; for the case made in the pleadings was not merely for the recovery of money, nor specific, real or personal property, but was for specific equitable relief; and was, therefore, a case to be tried to the court and not to a jury. Such cases are made appealable by the statute. The judgment of the common pleas was, then, vacated by the appeal, and that of the district court is properly reviewable on error; we must, therefore, consider whether error intervened in the rulings and judgment of that court.

The plaintiff claims that the court erred in admitting secondary evidence to be given of the contents of a deed, through which the defendant claims, without sufficient preliminary proof of the loss of the deed. It is a sufficient answer to this objection to say that no exception was taken to the evidence, other than a general exception to all the evidence given by each witness who testified upon that and other points of the case, some parts of which testimony were clearly admissible. It is not error to overrule a general objection to a mass of testimony, where part of it is admissible. Morris v. Faurot, 21 Ohio St. 155.

It is claimed by the plaintiff that the court erred in overruling the motion for a new trial, and thereby the ease, upon the facts clearly proved, is brought in review on its merits.

The theory upon which the plaintiffs framed their case involves the inquiry as to what became of the legal title to the land in controversy after the death of the testator, from whom both parties claim title.

The will makes no disposition of his real estate, other than that it shall be sold by his executors, and that the proceeds shall be paid over by them to a trustee, for the future benefit of his two daughters, who are made legatees of his entire estate. The executors were merely endued with power to sell the real estate and pay the money arising from the sale to the trustee, who was intrusted with the management, and, to some extent, disposition of the fund. But the executors acquired no personal interest or special trust in the property, further than that connected with its sale and payment of the proceeds to the trustee named in the will. Subject to this power, the testator, so far as the executors were concerned, left the title as it stood at law, to pass to his heirs, cumbered with thg equity created in behalf of his legatees.

The case of Dabney v. Manning, 3 Ohio, 321, is directly applicable and decisive of the point. In that case power was given to the executors by the will to sell the land, when, in their opinion, the sale could be made to good advantage, and to pay the proceeds to his children when they became of age. The court said : “ The title certainly descended to the heir, while the trust remained unexecuted, subject to be divested by the execution of the power. But the right of possession did not descend with the title; that passed with the will for the better enabling the executors to effect the objects of the testator.” So, in this ease, it is equally clear that the title descended to the heirs at law of the testator, subject to the execution of the power conferred by his will. The executors had no title further than what was connected with the power conferred on them as executors, and, when they ceased to be executors, the power terminated with their office, and any title they had dependent on the power ended with it.

This case is unlike the cases of Boyd v. Talbert, 12 Ohio, 212, and Williams v. Beach, 17 Ohio, 171. In those cases the powers invested in the executors were, like those in this case, intrusted, not to the executors, but to a special trustee.

The defendant claims that the power conferred by the will was executed in such a manner as to give him the title to the land in dispute. This brings us 'to the next question to be considered.

The executors named in the will never attempted to execute the) power. They resigned their trust, leaving the land unsold. Thereupon the administrator with the will annexed was duly appointed and qualified to complete the administration of the testator’s estate. Accordingly, on the 24th day of July, 1849, the administrator sold the land at public sale, and the defendant claims title under the purchaser at that sale. The administrator gave the purchaser a title bond, and put him in possession of the premises.

But a small part of the purchase-money was then paid to the-administrator, and the balance, for which he took the purchaser’s note, still remains unpaid.

Five or six years after the sale the administrator moved out of the state, but, before he went, he resigned the administration, and, as he says: “I -then surrendered the books, vouchers, papers, and notes to the judge of the probate court, Judge McKay, and took his receipt for the same.” Thus the matter stood until August, 1860, when a party interested in the purchase of the -land, sent by mail a deed to the late administrator, to be executed and returned by him, which was done' by the administrator; but the deed was not recorded, and is said to be lost. Its contents are not definitely shown, but it is probable that it was a conveyance of the'lot in question to a persou under whom the defendant claims title by a warranty deed.

It is claimed by the plaintiffs, that the administrátor with the will annexed had no power to make either the sale or the conveyance. Unaided by the statute this would be true. But the statutes in force, when the sale and deed were made, clearly conferred the power. The fifty-ninth section of the wills act provided, that where a will contains a power to sell real estate, apd the executor named in the will refuses to accept the trust, or dies before the power is executed, “ the sale or conveyance, or both, shall be made by the administrator with the will annexed.” 38 Ohio L. 120, same as § 65, S. & C. 1629. By an amendatory act, passed March 8, 1845, the provisions of that section -were extended to cases where executors resign without executing the power, and administrators with the will annexed are expressly authorized, in such cases, to execute such power. 43 Ohio L. 66, and S. & C. 1629, note.

The case of Conklin v. Egerton, 21 Wend. 430, and 25 Wend. 224, relied on in argument, for the limitation of the power to sell personal property only, is of questionable authority in the state where the ease was decided. Room v. Phillips, 27 N. Y. 357. But our statute, unlike that of New'York, gives express authority to sell “lands, tenements, and hereditaments.”

How far the power to sell might be limited by being coupled with personal trusts, conferred by the will, need not now be determined. But where, as in this case, the will merely directs a sale of real estate and payment of the proceeds to another, the case'clearly falls within the provisions of the statute, authorizing the administrator with the will annexed to execute the power.

The purchaser of the administrator, therefore, acquired by the sale and title bond, of the administrator, the right to the possession of the land, and the equitable right, on payment of the purchase price, to a conveyance by deed.

It is claimed by the defendant that he has obtained a full title to the land through a deed made by the administrator. This necessitates a consideration of the rights acquired by that instrument. It was made to the purchaser, or his assignee, without payment of the purchase-money, and, therefore, without a legal or equitable right, on their part, to demand a deed. Under the circumstances disclosed by the record, the good faith of the parties to the deed may well be questioned. To say the least, the case discloses an indifference to the rights of the legatees named in the will, if not a purpose to defraud them out of their legacies. But was anything gained by the deed ?

It appears, that more than eleven years after the sale, and five or six years after the administrator had resigned, abandoned his office and moved out of the state, he executed the deed in question. Clearly he had, at that time, no power to perform any official act as administrator of the estate. He was not, at that time, the administrator with the will annexed of the testator, and, therefore, was not authorized by the statute to convey the land under the power conferred by the will. The deed, therefore, was void for want of power to make it.

But the defendant claims, that although the title of his grantor, derived under the deed of the late administrator, may be defective, he is a purchaser for a valuable consideration without notice of any defects in the title, and must, therefore, be protected.

It is, perhaps, a sufficient answer to this claim to say that the defendant makes no such case in his answer. He merely sets up the deed of the administrator, and solely relies on that as his source of title. The general rule is that the defense of a bona fide purchaser must be pleaded in some form. Larrowe v. Beam, 10 Ohio, 504.

The point is made, upon the mere statement of the defendant in his testimony, that he was told, when he paid for the land and took a deed for it, that the title was good, and that he did not know the purchase-money at the administrator’s sale was not paid; yet the records of the county showed that the title must be derived under the will of Joseph Reed, and failed to show that the power to pass the title had ever been executed. Ordinarily this would have been sufficient to put a purchaser upon inquiry as to how the title had been transmitted, and led to the discovery of the defects therein.

But, waiving this point, does the defendant stand in a position to make the defense of a bona fide purchaser available in his behalf?

In Woods v. Dille, 11 Ohio, 455, it was held that where neither party has the legal title, the question of what protection will be extended to a bona fide purchaser, without notice, does not arise, and that the oldest equity must prevail ; and in Anketel v. Converse, 17 Ohio St. 11, it was said that the rule which protects a bona fide purchaser, without notice, “ is applicable to only such as have acquired the legal title,” and that “ where neither party has the legal title, and the equities are equal, the well-known maxim prevails that “he who is first in time is first in right.”

Row, if'neither party had the legal title, or if the defendant be regarded as not having the legal title, in either case this defense must fail. Both parties claim under the same will, and under the will neither party has the legal title. Both parties under the will have a mere equity, and that of the plaintiffs is the' oldest, and, therefore, the best.

But if it be said that the defendant had the apparent legal title under the administrator’s deed, he encounters a further difficulty; for, however the authorities may conflict elsewhere, in Larrowe v. Beam, 10 Ohio St. 498, it was settled in this state that the defense of a bona fide purchaser, without notice, is not available against one who combines both the legal and equitable title in his own right. Now, we have seen that the legal title of Joseph Reed, the common source of title, descended to his heirs. The legatees under his will are his daughters, and, therefore, his heirs. As such they took the estate, subject to the trusts created by the will. As legatees, when the time at which they could first assert their rights under the will arrived, in 1870, if the power conferred in the will remained wholly unexecuted, they had the equitable right of election to have-the land sold for their benefit, or to waive the sale and take the land. Holt v. Lamb, 17 Ohio St. 874. Since, then, both the legal and an equitable title were united in the plaintiffs, the defendant can not be protected against their just rights, on the gi’ound that he is a purchaser without notice.

It would seem, then, that the defendant can avail himself only of whatever right was acquired by the purchaser of the land under his contract with the administrator, and that the plaintiffs have the right, in equity, if the purchaser or his assignees fail to perform the contract, to have it foreclosed, or the land sold to pay the purchase price and interest.

Whether the purchaser is entitled to be credited for any money paid on the purchase, not paid to the trustee named in the will, need not now be determined. The question may not arise. It only appears that a small amount was paid to the administrator; but whether that was paid to the trustee does not appear. It does, however, appear that most of the purchase-money was never paid. To that extent, at least, the plaintiffs have an equitable charge upon the land, and the court erred in refusing to grant them any relief. Judgment reversed.  