
    
      Hughes v. Caldwell. Caldwell v. Chapline’s Heirs.
    August, 1840,
    Lewisburg.
    (Absent Parker, J.)
    Deeds ot Trust -What Sale under Will Not Be Set Aside- Feme Covert — Lapse of Time* — Case at Bar.—
    The trustee in a deed conveying land to secure payment of a debt, by his will devises the land to his executors, and expressly directs and empowers them to sell the same in execution of the trust. The executors accordingly sell the land, their sale being fairly made, and for a price which is the full value at the time. This sale is made in 1818, after the death of the grantor in the deed ; whose heirs are two daughters, both married, and one of them absent from the commonwealth when the sale takes place. The husband of the other is present at the sale, assents to it, and receives the surplus proceeds after payment of the debt, one moiety as the share of his wife, the other as the share of the absent daughter, for whom he undertakes to act. The husband of the latter having died, she returns to Virginia in 1820, and thenceforth resides with her brother in law and sister, in the same town in which the land is situated. The purchaser makes valuable improvements on the property ; and no claim whatever is made or intimated by any of the parties, until 1835, when a bill is filed by the husband and wife and the widowed daughter, seeking a redemption or resale, on the ground that the executors of the trustee had no authority to sell. The wife dying pending the suit, the same is revived in the names of her children and heirs. Held, 1. the devise by the trustees passed the title to his executors ; 2. the executors had. however, no authority to act in execution of the trust; but, 3. under the circumstances of the case, the sale shall not be disturbed, even in favour of the heirs of the party whose coverture continued from the lime of the sale until the institution of the suit.
    By a deed dated the 20th of April 1809, John Lee and wife, of Ohio county, conveyed to Alexander Caldwell (among- other property) two lots in the town of Wheeling, upon trust to sell the same, and apply the proceeds to the payment of certain debts due from Lee.
    *By another deed, dated the 13th of August 1811, John Lee conveyed to Noah Linsley, his heirs and assigns forever, all the property comprised in the former deed, (subject however to the trust created by that deed, so far as the debts therein mentioned had not been paid,) upon trust that Linsley should proceed to sell the same at public auction or private sale, for cash or upon a reasonable credit, and out of the proceeds pay, first, the balance remaining due upon the deed of trust to Alexander Caldwell, and then a debt of 807 dollars with interest, due to the ad-ministratrix of Joseph Swarm deceased.
    John Lee and Noah Linsley both died in the year 1814. The wife of Lee survived him, and he left also four children his heirs at law, namely, Sally Ann, Ann Maria, Elizabeth L. and John C. Lee. Linsley died without having executed the trust created by the deed of 1811, and by his will he devised (inter alia) as follows: “I do devise to my executors hereinafter named, or the survivor of them, all lands conveyed to me in trust, and I do direct and empower them, or the survivor of them, or their executors, to sell and dispose of the said property in the same manner that I, if living, could and ought to do, to effect the purposes and intention of the respective conveyances.” Samuel Sprigg and Noah Zane were appointed the executors, and they proved the will and took upon themselves the execution thereof.
    In 1818, Linsley’s executors, in pursuance of the authority and direction contained in the will of their testator, proceeded to sell the two lots in Wheeling, at public auction. Daniel Steenrod became the purchaser, at the price of 2470 dollars, and received from Sprigg and Zane a conveyance of the property-, bearing date the 6th of April 1818, The price of 2470 dollars was the full value of the two lots at the time of the sale.
    *At this time, all the daughters of John Lee were married women; Sally
    Ann was the wife of Josiah Chapline; Ann Maria, the wife of James C. Hughes; and Elizabeth L. the wife of Timothy Adams. Chapline and wife were residing in Wheeling ; Hughes and wife were nonresidents of the commonwealth. The interest of Adams and wife and of John C. Lee in the equity of redemption of the two lots, had, previously to the sale, been purchased by Alexander Caldwell: and both Caldwell and Chapline were present at the sale, and assented to it. After satisfying the debt due to Swann’s administratrix, secured by the trust deed, the executors of Linsley paid to Caldwell, as the assignee of Adams and wife and of John C. Lee, S88 dollars, being one half of the surplus proceeds of the two lots: and they paid to Chapline the remainder of that surplus ; a moiety of ii as the share to which he was entitled in right of his wife, and the other moiety as the share of Hughes and wife, for whom he undertook to act in receiving the same.
    In the year 1820, James C. Hughes died, and his widow removed to Virginia, and thenceforth resided with Josiah Chapline, who for several years succeeding lived in the town of Wheeling, and afterwards in its immediate neighbourhood.
    By a deed dated the 26th of January 1820, Daniel Steenrod and wife sold antf conveyed to James Caldwell, for the price of 3150 dollars, the two lots which Steenrod had purchased at the sale made by Linsley’s executors. Josiah Chapline was one of the justices who took the acknowledgment and privy examination of mrs. Steenrod. James Caldweil paid the purchase money, and in 1826 and 1827 (during which period Chap-line and wife and mrs. Hughes were residing in Wheeling) proceeded to make large and valuable improvements upon the property.
    'x'By a deed dated the 10th of December 1826, and duly recorded, John C. Lee bargained, sold and conveyed to Jane Lee Chapline (a daughter of Josiah-Chap-line), for the consideration of 300 dollars expressed in the deed, “all the undivided real estate lying in the county of Ohio or Tyler, which he inherited as one of the heirs of John Lee deceased, and all claims which' he may have on the estate of the said John Lee deceased;” together with a horse',' saddle and bridle.
    At January rules 183S, Josiah Chapline and Sally Ann his wife, Ann Maria Hughes, and JaneL. Chapline (by the said Josiah her next friend), exhibited their bill in. the circuit superior court of law and chancery for the county of Ohio, against James-Caldwell. By a subsequent amendment, Daniel Steenrod and Timothy Adams and wife were also made defendants. After setting forth the execution of the trust deed of August 1811 by John Lee, the sale‘"and conveyance of the two lots to Steenrod by.the executors of the trustee, Steehrod’s sale and conveyance of them to James Caldwell, the coverture of the plaintiff Sally Ann at the time of the said sale by the executors of the trustee, and ever since, the coverture of the plaintiff Ann Maria at the time of that sale and until about the 7th of July 1820, and John C. Lee’s conveyance to the plaintiff Jane L. Chapline, — the bill proceeded to charge, that by the said conveyance from John C. Lee (who was stated to have since died) Jane L. Chapline became entitled to all his interest in the real estate of his father, including the two lots in Wheeling: that the authority to sell those lots, conferred upon Linsley by the deed of August 1811, was a personal trust, which he could not rightfully delegate, and which, after his death, could not rightfullj' be executed without the ■ aid and decree of a court of equity ; consequently, the sale of them by his executors having been made without such aid and decree, the plaintiffs may rightfully insist that the same *be set aside and annulled: that the said -lots are exceedingly valuable, and are in reality worth several thousand dollars more than the price at which they were sold. The prayer was, that Caldwell might be decreed to reconvey the lots to the plaintiffs, upon such reasonable terms as should seem just, in order that a resale might take place under the directions of the court; and for general relief.
    Caldwell, in his answer, stated, that at the time he purchased the lots from Steen-rod, paid his purchase money, and received his conveyance, he had no knowledge of any defect whatever in the title, or of the pretended equity of the complainants: that Chapline knew of his intended purchase, and neither made any .objection to it, nor intimated that he, or any one else, had any claim to the propertjr. The answer of this respondent set forth the several facts (already detailed) that Alexander Caldwell had acquired the interest of Adams and wife and of John C. Lee, before the sale made by the. executors of Linsley; that said Caldwell and the plaintiff Chapline were .both present at the sale, assented to it, and received the surplus proceeds— Caldwell the shares of mrs. Adams and John C. Lee, and Chapline those of his wife and mrs. Hughes; that the property produced its full value; that Chapline and his wife had been residing in Wheeling and its immediate vicinity, ever since the sale by Linsley’s executors, and mrs. Hughes residing with them ever since the death of her husband in 1820; that Chapline was one of the justices who took mrs. Steenrod’s acknowledgment and privy examination; and that the respondent had made expensive improvements on the property. These improvements, the answer alleged, were to the value of 7000 dollars; and though Chap-line, his wife, and mrs. Hughes were in a situation to see the lots, and did see them, almost constantly while the improvements were in progress, yet they stood quietly by, making no objection *to the improvements, and no claim to the lots; and with full knowledge of all the facts relative to their pretended rights, had slept over those rights for seventeen years. Respondent insisted that his equity was superior to any possessed by the complainants; that he had also the legal title; and consequently that his enjoyment of the property ought in no manner to be disturbed.
    Steenrod answered, referring to and adopting the answer of his codefendant Caldwell. No answer was put in by Adams and wife.
    To the answers of Caldwell and Steenrod, the plaintiffs replied generally.
    Pending the suit, mrs. Chapline died, and the cause was revived in the names of Jane L. Chapline and others, her children and heirs at law.
    John C. Lee’s assignment of his interest in the two lots to Alexander Caldwell, was produced and filed as evidence in the cause. It is under seal, and bears date the 20th of April 1817. Much of the testimony taken related to the point whether John C. Lee had attained his age of twenty-onq years at the date of that instrument. It seemed probable that he had not; although he must have attained full age in the course of the same year. But it appeared that in August 1826 he was in Wheeling, and had a settlement at that time with Alexander Caldwell. Several receipts given by him, for different sums of money paid him by Caldwell, were produced and proved. All of them are dated in August 1826. One of them is for money paid on account of his “share of the proceeds of the two lots on the main street in Wheeling, now owned by James Caldwell:” and another, dated some days afterwards, is “in full of all claims and demands.”
    The cause was heard the 13th of June 1837; when the court decreed, that as to the plaintiff Ann Maria Hughes, and also as to the plaintiff Jane L. Chapline so *far as she claimed under the deed from John C. Lee, the bill be dismissed with costs. But the court, being of opinion that the executors of Linsley had no authority to sell the lots in the bill mentioned, and that the heirs of Sally Ann Chapline were not barred, by lapse of time or otherwise, of their claim to redeem their undivided fourth part of the said lots, or to have the benefit of a resale, — decreed that the cause be referred to a commissioner, for accounts to be taken of the debt and interest secured by the trust deed to Linsley; of the rents and profits of the lots since the sale by Linsley’s executors, and by whom received, — charging the same with the taxes, insurance, and other charges on the property, necessarily and properly paid or incurred, and with the value of the permanent improvements made upon the said property; and of the moneys received of Linslejr’s executors by Josiah Chapline, on behalf of himself and his wife: all which the commissioner was directed to report, in order to a final decree.
    On the several petitions of Ann Maria Hughes and James Caldwell, appeals were allowed them respectively from the decree.
    Price, for the appellant Ann Maria Hughes, and the appellees the heirs of Sally Ann Chapline.
    Johnson, for James Caldwell.
    
      
      
        Trust Deeds — Sale—Setting Aside.— in Morriss v. Virginia State Ins. Co., 90 Va. 375. 18 S. E. Rep. 843, it is said, after tbe sale bas been made, tbe court interposes witb more reluctance than when it is applied to in tbe first instance, and before tbe sale is actually made. Citing Taylor v. King, 6 Munf. 366 : Harris v. Harris, 6 Munf. 368 : Gibson v. Jones, 5 Leigh 370 ; Hughes v. Caldwell, 11 Leigh 348.
    
   TUCKER, P.

Some of the points which have been argued at the bar do not fall within the view that I have deemed proper to take of the rights of the parties: I have therefore not intimated any opinion upon them. A short statement will best present the point on which I consider these cases as turning.

In 1809, John Lee conveyed the lots in question to Alexander Caldwell, to secure certain debts. In 1811 he conveyed the same lots to Noah Linsley, another trustee, to secure other debts. Lee died in 1814, and Linsley *in the same year. Linsley by his will devised these lots to his executors Sprigg and Zane, with power to execute the trust. This authority I take to be, beyond question, void. In 1818, the persons entitled to the equity of redemption in this property were A. Caldwell for one half, mrs. Chapline for one fourth, and mrs. Hughes for one fourth. In that year, the creditors having applied to Sprigg to proceed with the sale, he and his coexecutor did so. The lots were bought by Steenrod at 2470 dollars; a full price, as is clearly proved. The sale was assented to by A. Caldwell, representing one half, and Josiah Chapline the husband of Sally Ann, who represented one fourth. Mrs. Hughes, representing the remaining fourth, was covert and out of the state. After the sale, and payment of the debts, A. Caldwell received one half of the balance, and Josiah Chapline received the other half, on account of his wife and mrs. Hughes.

On this simple state of facts certain questions arise, the answers to which must decide the cause. Had the executors the title to the property in them by the devise? Unquestionably: whether they had the power and authority of trustees or not, the title clearly passed to them by the will. Had the creditors a right in any way to enforce a sale? Without doubt: they might have filed a bill of foreclosure; and that was the regular mode in which they should have proceeded. The sale by the executors was certainly irregular and unauthorized by the deed. But though unauthorized and irregular, will the court, even upon the application of infants and femes covert who have been guilty of no default, set it aside under the circumstances of this case? I think not. The creditors had a right to enforce the trust. Under a false impression of the law, they apply to the trustee’s executors to sell. The person representing one half the equity of redemption assents to the sale, under the like impression ; and the tenant by curtesy of another fourth does the same. The trustees proceed; 'x'the sale is fairly made; a full price is obtained; the purchaser pays up his money ; It is scattered by distribution among the creditors, and the owners of the equity of redemption; and the sale is in effect ratified by the representative of one half, by the receipt of his portion of the surplus, and by the husband of the representative of another fourth, by the receipt of her portion. Since these transactions, sixteen years roll by without objection: another person (James Caldwell) purchases of the bidder at the sale, pays up his money, and builds largely on the property, which has been thus greatly increased in value, not only by the natural rise in a growing city, but by actual and expensive improvements. Will a court of equity unravel all that has been done, and decree a new sale, merely because of the irregularity; an irregularity, too, of which the best counsel of the day seem in no wise to have been aware? This is the true question to be decided.

That a court of equity would not be disposed to realize the dreams of profit which probably gave rise to this suit, seems clear from the course it has pursued in yet stronger cases. The complainants can upon no principle be entitled to recover the valuable improvements which have been made upon the property by the purchasers, in the confidence of title, and before any intimation of claim on the part of Lee’s representatives. In Southall v. M’Keand & others, 1 Wash. 336, the claim of Southall was made known to M’Keand, but he instituted no suit to enforce it, till M’Keand had placed improvements to ten times the value on the lot. The court decided he should only have the value at the time M’Keand purchased, which was directed to be ascertained by a jury. They said, it was unreasonable he should in equity avail himself of the increased value produced by his own delay, since M’Keand had a right to suppose, from that circumstance, that he had deserted his claim. So in our case. A sale was made, of the ^validity of which no one doubted. There was no mala lides in the trustees, the purchaser, or the vendee of the purchaser. All parties sui juris had acquiesced in the transaction. The defendant Caldwell held the property for eight years before he began his improvements. No pretence of title was set up. He then proceeded to build, while the parties sui juris silently looked on. It would indeed be unreasonable that they should now avail themselves of the increased value produced by their own conduct, since Caldwell had a right to suppose that they had no claim to the property, or that they had abandoned it. And here let it be observed, that the time from which abandonment is presumed is not governed by the rules which prevail as to aa equity of redemption. Twenty years are not necessary to justify the presumption of abandonment. It depends upon the acts of the parties, and the circumstances of the case; and it might in this case well have been presumed by Caldwell, from the acquiescence of all the parties interested who were sui juris, and of the natural protector of the only party who was not. See the remark of judge Cabell in Cresap v. M’Lean & al., 5 Leigh 391, and the cases there cited by him.

The case of Pierce’s adm’r &c. v. Trigg’s heirs, decided at the last term, affords another instance of a similar description. In that case an irregular sale had been made, and the parties interested were infants at the time of the sale. They sought a resale. The court refused it; but as there was no proof that the price was a full price, it directed a valuation to be made of what the property was worth at the time of the sale, and the excess, if any, over the price for which it had sold, to be paid to the claimants.

Pursuing the principle of these cases, then, it is very clear that the plaintiffs can have no benefit of the improvements made by Caldwell. Their only pretence of claim is to the value of the lots.

In considering this pretension, let' us recur again to the fact that the creditors had a right to have the sale made in 1818; that all the parties, then sui juris, approved it; that a general mistake prevailed among all concerned, as to the powers of the executors to sell; that every thing was fairly conducted, and that the trust property commanded a full and fair price. Ought a court of equity now to set aside the sale, and direct a resale, or ought it even to direct an enquiry as to the value of the property in 1818, in the expectation that upon such valuation the plaintiffs might get something more? I think not. When that has been done, which ought to have been done, though not precisely in the manner it ought to have- been done, equity should not interfere. The claimants themselves have no equity, and never had any. They have sustained no injury, and without that they can have no equity. Had a bill of foreclosure been filed, a court of chancery would have decreed a sale in 1818. It would have appointed a commissioner, or the executors themselves, to sell; and most probably the latter, as they were liable to no exception, and the title was in them. If so, precisely that has been done, which the court would have ordered to be done; and therefore it must be taken to have been well done. Por what a trustee (and such the executors were) is compel-lable to do by suit, he may do without suit. 2 Ponb. Eq. 175. There is then no motive for the action of a court of equity. On the other hand, there is the strongest motive for its not acting; for it cannot bring back the year 1818. Its only proper power would be to do now what should have been done then. But that it cannot do, because it cannot carry itself back to the date at which the creditors had a right to have a sale. If indeed the property had been sacrificed, measures might be taken, as in Pierce’s adm’r &c. v. Trigg’s heirs, and in White v. Atkinson, 2 Wash. 94, to ascertain the proper redress. But the proof is ample that the sale *was fair and the price full, and indeed there is no allegation to the contrary.

It remains but to refer to the case of Taliaferro v. Minor, 1 Call 524, to show, that though a sale by trustees has not been made in strict pursuance of a power, and though the parties complaining were infants when it. took place, a court of equity will not set it aside, if every thing was fair, notwithstanding á loss has accrued to the infant parties interested in the transaction. It may be regarded, I think, as sustaining the position, that if a sale be made by trustees when it ought to have been made, and if it be fairly made and for a full price, a court of equity will not interfere with it, even at the instance of infants, though the trustees may not’ strictly have pursued their authority. This appears to me sound doctrine, and decisive of these cases.

The result is, to affirm the decree in Hughes v. Caldwell, and reverse it and dismiss the bill in Caldwell v. Chapline’s heirs.

The other judges concurred. In Hughes v. Caldwell, decree affirmed: in Caldwell v. Chapline’s heirs, decree reversed and bill dismissed. 
      
      Reported 10 Leigh 406. — Note in Original Edition.
     