
    Owens, &c. vs Cowan’s Heirs; Beatty vs Same; Carneal vs Same.
    Writs or Error to the Pulaski Circuit.
    Chancery.
    Case 42.
    Case staled.
    
      Sale of infants’ real estate. Executors. Devisees. Vendor and vendee. Damages.
    
    
      October 14.
   Judge Breck

delivered the opinion of the Court.

In 1811, the last will and testament of Thomas Carneal, was admitted to record in the Franklin County Court. The testator, after devising specifically, a large portion of his estate, makes the following provision:

“The residue of my estate, consisting of lands in the States of Ohio and Kentucky, and all money bonds, I convey in trust, unto my friend and relative, Thomas Todd, for the express purpose of paying my debts, of every description, which I desire may be sold at such credit as be may judge right, between the creditors and the estate.”

Thomas Todd and six other persons were appointed executors.

The object of the biil-of Owens.

At the same time the will was proved, Todd awd all the other executors, by a writing under their hands and seals, renounced their right and refused to qualify as executors, or in any manner to take upon themselves the -execution of the will. Todd also formally renounced, in open Court, the devise made to him in trust, for the payment of the testator’s debts, and refused to accept the trust; and thereupon, administration, with the will annexed, was granted to James Coleman. The testator left three children, Thomas D. Carneal, S. H. Coleman, the wife of the administrator, Coleman, and Alice Car. ■neal, who subsequently matr-ied James D. Breckinridge,

In 1813, William G, Cowan purchased from Thomas Bryan, representing himself as the agent of Carneal’s heirs, 317 acres of land i-n the county of Pulashi, being part of a tract of 713 acres, patented in the name of the ■testator, Thomas Carneal. Bryan executed a bond to Cowan for a conveyance.. Shortly afterwards, Coleman, the administiator, endorsed upon this bond that the consideration for the land had been all paid by Cowan, and bound himself to convey the same by general warranty ■deed, as soon as a .propersurvey was brought forward.

Cowan moved upon the land shortly after his .purchase, and continued in possession thereof till his death, in 1835, and after his death, it remained in possession of his heirs till February, 1840, when, upon their petition, 206i acres thereof, the residue having been allotted to the widow as dower, was sold under a decree of the Pulaski Circuit Court, and John Owens became the purchaser thereof, and obtained the possession.

In June, 1841, Owens and his surety for the purchase money for the land, exhibited this bill, seeking to set aside the sale, upon the ground that it was irregular and void, that Cowan's heirs had no title to the land, and that ■one Beatty claimed and was in possession of a portion of it. They charge (hat the title was in Thomas D. Carneal, the only surviving heir of the patentee, Thomas Carneal, except as to the part claimed by Beady. Owens also ■charges that the heirs of Cowan, well knowing the defects in their title, had fraudulently concealed them from 6im at the time of his purchase.

Answer of Cow-an’s heirs made eross bill against Cameal, &o.

Th. V. Cameal’s answer and cross bill against Cow-an’s heirs.

Cowan’s heirs answer, insist upon the validity of the sale under the decree, deny any fraudulent representations or concealment in regard to their title, and insist that the complainant, Owens, had long resided near the land, and knew all about the title. That he knew of the pretended claim to some part of it set up by Beatty, They pray that his claim may be quieted and if Beatty is ascertained to be in possession of any portion of the 2061 acres, that he may be decreed to surrender it. They make their answer a eross bill and make Thomas D. Carneal, &c. defendants. They alledge the sale to their ancestor by Coleman, as administrator with the will annexed of Thomas Carneal; that the sale was made for the payment of Carneal’s debts; that the purchase money was all paid immediately after the purchase, and they exhibit a deed from Coleman, as administrator with the will annexed, of Thomas Carneal, but made subsequent to the exhibition of complainant’s bill. They pray a conveyance from T. D. Carneal, if necessary to perfect their title, and rely upon the length of possession by them and their ancestor.

Carneal answers and resists the claim set up by Cow-an’s heirs, denies that Coleman, as administrator with the will annexed, had any authority to sell the land to Cowan, or that Bryan had any authority. He states that shortly after the probate of the will of his father and before the purchase of Cowan, he transferred to Coleman all his interest in the estate, with some exceptions. That subsequently his sisters both departed this life, his sister Coleman leaving an infant son, who also died while an infant. That his sister Breckinridge died without issue, and that he thus became the sole surviving heir of his father. That Cowan’s heirs, if entitled to any interest in the land in contest, were only entitled to one third absolutely or in fee, and to an estate during the life of Coleman, in another third. He insists that Cowan and his heirs had been tenants in common with him, and should account for rents and profits, and makes his answer a cross bill, and prays a division of the land, &c. He also avers that in 1815, Coleman was removed as administrator, and that he was himself appointed.

Decree of the Circuit Couit.

Two guardians of infants uniting in a petition for the sale oí infant’s estate, and one swearing to the petition,is a substantial compliance with the statute.

The sale of infant's real estate is not invalia because theguardian did- not execute bond" as prescribed by the statute before the decree orsale if the fund was still in* the power of the Chan*cellor. Heshould secure- the fund to the ward by appropriate bond before- suffering it to* pass into the hands of the guardian*

Beatty claims a portion of the land in contest, under Carneal’s title, and relies upon a Sheriff’s sale, in virtue of an execution against Th. D. Carneal.

The Court below dismissed the complainant’s bill, so far as he sought a rescisión of his contract of purchase, and dissolved the injunctions, which had been awarded hirn, restraining the collection of the purchase money. The heirs of Cowan were decreed to convey to him, by deed with general warranty; and Beatty, by quit claim as to the supposed interference between the tract claimed by him and the Cowan tract, and a habere facias is directed to be issued upon the application of the complainant, to enable him to obtain possession of the small portion thereof in the actual possession of Beatty.

The cross bill of Carneal is dismissed at his cost.

To reverse this decree writs of error are severally prosecuted by Owens, Carneal and Beatty, and Cowan’s heirs assign cross errors.

In the revision of the case the objections made to the decretal sale, under which Owens purchased, will be first noticed.

Five of the heirs who petitioned for a sale, were infants, and petitioned by their statutory guardians; J. W. Hargrave and Sarah Cowan were guardians jointly, for three of the infants. It is objected that Hargrave only made affidavit to the petition, though the other guardian united in it; affidavits were made by the guardians of the other two.

The objection is very clearly not available, even if there had been no affidavit by either of the guardians, as all parties, in answer to the complainant’s bill, confirm the sale and pray that it may be enforced, and it appearing for the interest of the infants that it should be, the Chancellor, on that account, as has been decided by this Court in analogous cases, would not disturb it. But both guardians uniting in the petition, and the affidavit by one, we think, was a substantial compliance with the requisitions of the statute.

2d. It is objected that no bond was executed by the guardians, either prior or subsequent to the sale. But the Court required the commissioner appointed to make the s-ale, to execute bond with security, before he proceeded to act under the decree, and in a sufficient penalty for the protection of all the heirs. The bonds for the purchase money were directed to be taken payable to the commissioner. Besides, when- the complainant exhibited his bill, the petition case was within- the power of the Chancellor, and for aught that appears in the record,, may be so still. It was in the power of the Chancellor, before permitting the proceeds of the sale to go into- the-hands of the guard-i-ans, to require from them sufficient bonds for the additional protection of their wards. And such bonds, it may be presumed, would have been required.

'When- a- devise is made of lands to a trustee to- pay debu, &c. and be refuses- to-accept the trust, the title devolves ttpon the heirs of the devisor,, subject to the debts, &e. (3 Sana, 185*).

—And where land is dev-isedto ejt’r. in trust to be sold to paydebls, and the trustee refuses to execute ¡he trust, the admr’r with the will annexed may sell under the authority of the act of 1810, (1 St. Law, 671.)

The failure to require bonds from the guardians, did* not affect the jurisdiction of the Court, nor, as the whole case and- the proceeds of the sale were still within the-control of the Court, did it oppose any obstacle to the confirmation-of the sale, or constitute a sufficient reason for avoiding it by the complainant. Some other objections questioning the correctness and regularity of the proceedings- and the validity of the sale, are urged, but they a*re deemed untenable and need not be noticed.

The objections to the title present more difficulty. It is evident tha-t the heirs, at the exhibition of the complainant’s bill, were not vested with the legal title to the land’, but we are inclined’ to the opinion they had a valid and perfect equity. By Todd’s renunciation of (he devise to him, and his refusal to accept the trust, the title vested in the heirs, charged, however, with the payment of the testator’s debts: Helm, &c. vs Darby's administrator, (3 Dana, 185.)

The 44th section of the act of 1797, (1 Stat. Laws, 666,) provides, that “the sale and conveyance of lands devised to be sold, shall be made by the executors, or such of them as shall undertake the execution of the will, if no other person- be thereby appointed for that purpose or, if the person so appointed shall refuse to perform the trust, or die before be shall have completed it.”

Upon the refusal of Todd to perforin the trust, the power to sell devolved upon the executors. But as they all refused to qualify, the administrator, with the will an-Hexed, under the act of 1810-11, (1 Stat. Laws, 671,) was vested with the power. If the sale made to Cowan was made by Coleman as administrator, and we think it may be so considered, it was a valid sale. He received the purchase money, and covenanted to make the conveyance. He proves that it was necessary to sell the land for the payment of the testator’s debts, and that he sold it as administrator..

The conveyance oí an administrator with the will annexed, made afLerhe is super-ceded by another adm’r. passes no title except such as he may have independently of his character a» administrator*

He moreover proves, that Bryan, in making the sale, acted as bis agent, and that he, Coleman, received the purchase money, and confirmed it. While Coleman was administrator, a conveyance by him as such, would have passed the legal title ; but after his removal, we are not satisfied that he would still be authorized to convey.

The deed, therefore, made by him to Cowan’s heirs since the commencement of this suit, would only convey such title as he held or could convey, irrespective of his character as administrator. Upon the hypothesis, that by the renunciation of the devise to Todd, and his refusal to accept the trust, the title vested in the heirs, the deed from Thomas D. Carneal, made in 1811, vested in Coleman the title to one undivided third part of the land in contest. He was also entitled to an estate during his life, to another third, in right of his wife, by the courtesy. Upon her death, her title to one third, subject to the courtesy, descended to her son, who dying while an infant, the title passed to Thomas D. Carneal and Mrs. Breckinridge. And upon the death of Mrs. Breckinridge without issue, her title vested in Thomas D. Carneal, who thus became invested with the title as to two thirds, subject to the life estate in Coleman as to one third.

The chancery proceeding in 1815, by which Todd was decreed to convey, and did convey to Th. D. Carneal all the title and interest, if any, which was vested in him by the will, was unnecessary, and nothing passed by it. The title was previously vested in the heirs. Nor can the agreement among the heirs to renounce the will and hold by descent, have any bearing upon this controversy.

So far as the title was in Carneal, it was held in trust for Cowan and his heirs. It did not enure to the benefit of Coleman in virtue of. Carneal’s conveyance to him in 1811. By that deed, he transferred the interest only which he then possessed. It had no reference to, and would not pass the subsequently accruing title and interest.

Can lands devised for the payment of debU be sold under execution or judgment against the heir? — Qr. See Helm vs Darby. (3 Dana, 185.)

It results from this view of the case, that the Court be. low erred in not decreeing Carneal to convey to Cowan’s heirs whatever title might be vested in him, in the tract purchased by their ancestor from Coleman, or Bryan as his agent, or at least to convey to Owens to the extent of the 206í acres. Cowan’s heirs held under Carneal’s title, by an executory contract, and Owens had a right to require (bat he should be vested with the legal title. The necessary parties were before the Court, and the title should have been perfected accordingly. It also results that the cross bill of Carneal was properly dismissed.

The allegation by the complainant, of a fraudulent concealment by the adult heirs, of the nature and condition of their title, is denied, and not sustained by the proof. Their ancestor had been in possession of the land at the time of the sale, claiming it as his own, near thirty years. It had been twenty years, or very nearly, since Thomas D. Carneal had instituted an ejectment for the recovery of the land, and had failed in the effort and abandoned it. Under such circumstances, the heirs might well suppose their title valid.

As to the claim of Beatty, it is in proof that Owens had resided near the land, and knew all about it, and that really the only question was in regard to the actual boundary of the Cowan tract.

Beatty claims under a Sheriff’s sale, made in virtue of an execution against Thomas D. Carneal, as trustee, administrator with the will annexed, and only surviving heir of Thomas Carneal, deceased. It is questionable whether the land, charged as it was with the payment of the debts of the testator, was subject to execution, and whether any thing passed by the sale. According to the principle settled in Helm and Darby’s administrator, supra, the land was equitable assets in the hands of the administrator, and not subject to be sold under execution. But waiving that question, it is manifest from the Sheriff’s deed, and from the testimony, that the land sold by the Sheriff, and embraced in bis deed, was not intended to constitute, and does not constitute any part of the 317 acres purchased by Cowan. The boundary in the deed is to run “with the line of a survey of three hundred-and seventeen acres, sold to William G. Cowan, and whereon the said Cowan now (then) resides; thence with the line of Cowan’s survey to the beginning.” These lines of Cowan are satisfactorily established, and as established, Owens gets his 206£ acres. It is true Beatty claims to run within Cowan’s lines as established, and it appears he has in actual possession, within the lines of Cowan, at one corner, a small piece of about an acre, which bad been previously in possesion of Cowan. We are of opinion the decree is right in requiring Beatty to release to Owens any claim or title he may have to any portion of the land purchased by Owens, as it clearly appears, as we have seen, that the tract so purchased by him is all within the well established lines of Cowan’s survey of the 317 acres, made long before the sale under execution. The decree in that respect, would have been right, even if it were conceded that the Carneal title passed by the Sheriff’s deed to the portion of the Cowan tract, as claimed by Beatty. Cowan, as has been shown, bad the elder and superior equity, and be was in actual possession, claiming up to the extent of his lines at the time of the Sheriff’s sale. The purchaser, therefore, had notice of Cowan’s equity, and if he acquired the title of Carneal to any portion of Cowan’s tract, in equity he would be bound to surrender it. Beatty occupies no better attitude than Goggin, who was the purchaser at the Sheriff’s sale. We are inclined, also, to the opinion, that the Chancellor was right in requiring Beatty to surrender to Owens the small field in his possession, and therefore, that there is no error in the decree, which he can render available.

"Where a vendee files his bill alleging a defect of title in vendor and the title be perfected after the filing the bill or obtained by cross bills in the same suit, no damages should ihe awaided.

Finally, we come to the conclusion that the Court was right in sustaining the sale made to Owens, but erred in not requiring Carneal to release his title. The cross error of Cowan’s heirs, that the complainant’s injunction should have been dissolved with damages, and his bill dismissed with cost, is not available.

B. § A. Monroe and Goodloehr Owens, &c.; Harlan fy Craddock and Rot for Cowan’s heirs etal.

s0 fa? the decree dismisses the cross bill of Carneal, it is affirmed, and it is also affirmed upon the writ of error prosecuted by Beatty. Upon ihe writ of error prosecuted by Owens, &.c., it is reversed for the error indicated, and the cause remanded for further decree, consistent with this opinion.  