
    Henry Knox and Another versus David Jenks
    Heirs at law, creditors, and others, interested in an estate sold by executors, &u, under a license from a court, are not concluded by such sale, unless every essential requisite, and direction of law respecting the same, has been faithfully complied with; except after long acquiescence. But, strangers having no privity of estate or interest affected by such sale, cannot question the pr<> ceedings of an executor, &c., otherwise duly authorized, and whose deed, made, or recited to be made, upon a sale pursuant to such authority, is produced.
    Of the effect of a deed of conveyance of land, when a stranger is in possession of the land conveyed. [A feoffment by one out of possession, with livery upon the lands, will vest the freehold in the feoffee ; aliter in the case of a deed, bargain and sale, or other conveyance. — Ed.]
    This was a writ of entry sur disseisin, in which the demandants counted upon the seisin of Henry Knox, whose heirs they are, of four fifth parts of the premises described in the declaration, and upon a disseisin by the tenant, who pleaded the general issue, that he never disseised the said Knox, deceased. This issue, being joined by the demandants, was tried before Thatcher, J., at the last September term in this county.
    A.t the trial, the demandants, to prove such seisin as to two fifth parts, produced the deed of Samuel Waldo, Esq., and others, to said Knox, deceased, bearing date October 11th, 1793, and recorded October 22d, 1794; and it was proved that the grantors in said deed owned the said two fifth parts, at the time of making and executing the deed. On the 29lh of November following, the grantors, by their attorney, who was duly appointed to enter on the land, demanded, and thereon to deliver said deed, entered on the laud, and delivered possession thereof, to the attorney of said Knox, deceased. To prove said Knox's seisin, as to * the [ * 489 ] other two fifth parts of the premises demanded, the demandants proved, that on the L5th of February, 1765, Thomas Fluclcer became seised thereof, and continued so seised, until all his estate was duly confiscated to the use of the now commonwealth of Massachusetts, he being a conspirator ; that said Knox, deceased, was, by the legislature of the commonwealth, appointed agent to settle said Flucker's estate, to pay his debts, and make sale of his property for the use of the commonwealth; conforming in such sale to the law relating to and directing the sales of estates by executors and administrators; that he was duly licensed by the Supreme Judicial Court to sell, and gave the bonds required by law ; that he took the oath by law required, which was administered at Philadelphia by James Iredell, one of the associate justices of the Supreme Court of the United States, on the 25th of March, 1791, he certifying such oath in the above capacity only ; that due notice of the intended sale was given, as by law required; that on the 2d of July, 1791, the said two fifth parts were sold at auction to Oliver Smith, from whom, by several mesne conveyances, they were at length conveyed to the said Knox, deceased, by a deed dated the 5th of October, 1792.
    On the part of the tenant, it was in evidence, that on the 2d day of June, 1785, one Jonathan Spear conveyed the lands described in the writ, with warranty, to Jenks, the tenant in fee, by a deed recorded on the 7 th day of November following; that the said Jenks entered under his deed, improved and lived upon the said land, erected a dwelling-house thereon, and gradually extended his improvements, and in the year 1793 .had as much as twenty acres of the land enclosed and under cultivation.
    The counsel for the tenant contended at the trial, that the deed from Waldo and others, dated in October, 1793, could not legally operate to pass any estate to Knox in that part of the land improved and enclosed as aforesaid ; and that the certificate of Justice Iredell was not legal proof that said Knox was sworn according [ * 490 ] to law, inasmuch as it did * not appear that said Iredell was a justice of the peace ; whence it was insisted that nothing passed by the deed of Knox to Smith.
    
    The judge who sat in the trial delivered his opinion that the said objections could not avail the tenant; and that upon the facts disclosed the demandants were entitled to recover; and the jury found a verdict for them accordingly.
    The tenant’s counsel filed his exceptions to the opinion thus given by the judge, and the action was thereupon continued to this term. And now,
    
      Mellen supported the exceptions taken at the trial;
    and he contended that, as H. Knox was required, by the resolve of the legislature authorizing him to sell the land, to conform in all things to the general laws of the government respecting the sale of lands by administrators, &c.,  he was bound to take the oath before some justice of the peace. Whether Judge Iredell was or was not a justice of the peace, in the place where he administered the oath in this case, does not appear. But it does appear that he did not act, or claim to act, as such in this case. Knox, then, had no legal authority to make the deed, and of consequence it had no legal effect to pass the land.
    Then, as to the part claimed under the deed of Waldo and others, the present tenant was then in full and quiet possession of the land, and, the grantors being disseised, nothing passed by their deed at the time of making it. And although the case finds an attorney was constituted to enter on the land, and there to deliver the deed, yet it does not find a delivery of the deed by him, but of the land only. Indeed the deed appears to have been delivered at the time of its execution, when the grantors were out of possession, and so the delivery void. But if a second delivery had been made by the attorney on the land, yet this would have had no operation, unless the deed had been a feoffment. 
    
    * Wilde, for the demandants,
    contended that, as to the [ * 491 ] first point, there was little or no weight in it. The act requiring these formalities had always received a liberal construction , and although a justice of the peace was the officer named, yet an oath taken before any magistrate authorized by law to administer oaths, is sufficient within the spirit and intent of the statute. But this oath is prescribed for the security and benefit of heirs and creditors only ; and a mere stranger, who is a disseisor and wrongdoer, has no right to bring the subject into question.
    As to the second point, it was not started at the trial, or it would have been cured by the jury. But the deed was not probably twice delivered. If it was delivered at the time of its execution, there ought to have been proof of it; for the attestation made by the witnesses is merely matter of form, and always so considered. To support the deed, it will be considered as a feoffment at common law, the delivery of which before possession is valid, if livery of seisin be afterwards made.
    
      
       Vide Stat.. 1783, c. 36, § 1, 7.
    
    
      
      
        Com. Dig. Fait, B. 5. — Co. Lit. 48 b.
      
    
   The opinion of the Court was delivered to the following effect, by

Sewall, J.

Upon the exceptions filed in this case, two questions have been made and argued — one respecting the operation of the deed from Samuel Waldo and others to the late General Knox, dated October 11, 1793; and the other respecting the operation of the deed made by General Knox, as agent of the estate and effects of Thomas Flucker, a conspirator, dated July 2, 1791; the demandants claiming as the heirs at law of General Knox, and having counted upon his title and seisin in the demanded premises, and these depending altogether upon the operation of those deeds. The last-mentioned deed, which is the first in order of time, having been executed by General Knox, upon a sale, as agent for .the confiscated estate of Thomas Flucker, the tenant objected, at the trial, to a certificate by Justice Iredell, one of the justices of the Supreme Court of the United States, before whom, as it appears by [ * 492 ] * the certificate, General K. took the oath required by law of executors, administrators, guardians, and agents for the estates of conspirators and absentees, when licensed and authorized to make sale of real estate for the payment of debts, to be taken previous to the sale. The certificate was admitted in evidence, and the decision upon it at the trial was, that this objection could not avail the tenant; and to this decision the counsel excepts.

As to the admission of the certificate, by which the competency of it to prove the qualification required may be understood to be determined, we are not now prepared to give an opinion. A decision to that effect may require more time and consideration. We are, however, agreed in confirming the decision at the trial, that this objection cannot avail the tenant, supposing the certificate incom petent as proof of the oath by law required, or that the sale was by an agent, who had not previously taken the oath. The requisites provided by statute, of bonds to account, of a previous oath, of advertisements, and of a public sale, are important to the interests of all concerned in the estate to be conveyed, as heirs at law, creditors, and others.

The rights of persons thus connected with the estate conveyed, and whose interests are affected by the authority to sell, are regarded by these provisions ; and they, and any claiming under them, are not concluded by the exercise of the authority and license to sell in derogation of their rights, unless every essential requisite and direction of law, in this respect, has been faithfully complied with. But even heirs and creditors are concluded after a long acquiescence ; and a legal presumption of the regular exercise of the authority is accepted instead of proof. And strangers to the title, those who have no estate, or privity of estate or interest, and who pretend to none, affected by the sale in question, are not entitled to proof of the proceedings of an executor, administrator, or agent, otherwise duly authorized to sell, and whose deed made, or recited to be made, upon a sale pursuant to that authority, is produced.

[ * 493 ] * A seisin may be obtained under such a deed by the grantee named therein, and his entry under it upon a disseisor of the estate, or of the feoffee of a disseisor, is lawful, and will revest the possession according to the title. No particular decision to this effect is at this moment recollected; but we are all satisfied, that this has been the practical construction of the statutes upon this subject in this respect.

As to the other objections against the deed of Samuel Waldo and others, we think it is by no means a necessary conclusion, from the tenor of the writings produced in the case, or from the facts stated to have been proved at the trial, that the delivery of the deed was previous to the entry upon the land conveyed ; and which the tenant then occupied, claiming under a deed to him, made by one Jonathan Spear, and dated June 2, 1785. The right of entry certainly remained in the grantors in October and November, 1793, when it may be supposed their deed to Henry Knox was executed, and when their attorney entered upon Jenks, and delivered possession of the lands conveyed to the attorney of General Knox, the grantee. The attorney of the grantors was specially authorized to enter upon the land demanded, and thereon to deliver their deed. The entry and delivery of possession, with reference to the authority, and in the execution of it, affords a reasonable presumption of a delivery of the deed, after the entry and the removal of the impediment; and because, in the understanding of the parties, according to the purport of these writings, a delivery at the date would have been ineffectual, while the impediment to the operation of the conveyance continued ; and no evidence is stated more than the legal presumption from the date of the deed, that there had been a prior delivery of it as the deed of the grantors. This is a construction upon the facts in evidence, in furtherance of the plain and declared intentions of the parties.

But, supposing this construction not admissible, there is another suggested in the argument for the demandants, by * which the intended operation of the deed of Waldo and f * 4@4 ] others may be maintained. A deed acknowledged and recorded is valid to pass the lands conveyed, without any other act or ceremony. A feoffment by a feoffer out of possession, and a livery on the estate conveyed, bring back the estate, and vest the freehold perfectly in the feoffee—an operation, which, it seems, is not allowed to a deed of bargain and sale, or any other mode of conveyance. If necessary, then, to effectuate the intentions of the parties, we see no difficulty in construing the deed in question a feoffment, with livery of seisin upon the land conveyed. No precise words are requisite to a feoffment; and here was a livery in fact, according to the deed ; or, if that ceremony had been wanting, it would be supplied by the statute effect from an acknowledgment and registry, the impediment to the operation of the deed having been removed by an actual entry upon the land conveyed.

The opinion of the Court is, that the demandants are entitled to recover, notwithstanding the objections stated in the exceptions; and judgment is to be rendered according to the verdict. 
      
       3 Mass. Rep. 399, Gray vs. Gardner.
      
     
      
       Vide Willard vs. Nason, in error, 5 Mass. Rep. 240.
     
      
      
        Com. Dig. Feoffment, A. 1. — Co. Lit. 48, b. 49, a.
      
     
      
      
        Com. Dig. Feoffment, A. 3. — 2 Roll. 73.
     