
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    Nicholas Herbemont v. John Bostick.
    Where the executor sold and conveyed by deed, testator’s land, by a power derived from the testator’s will, and afterwards, the heir entered, and sold, and conveyed, by deed, the same land, without notice of the executor’s sale and conveyance, it was adjudged that the last conveyance was void, as the heir never had any estate which he could dispose of; and that' the registry of the deeds was immaterial.
    Motion for a new trial. Trespass to try titles, tried in Richland district, before Waties, J. Plaintiff claimed under a deed of conveyance from the widow, and the only daughter of Dr. Hailey, who was proprietor of the land in question. The defendant claimed under a deed of conveyance from the surviving executor of the last will of Dr. Hailey, by which a power was given to his executors to sell the same, and all the rest of his estates, real and personal ; and the will further directed (lie executors to put out at inte, rest £1800 currency, of the proceeds of such sales, and pay the testatoi’s brother in Ireland, duringJife, the interest annually accruing, after whose death the principal .was to sink into the residuum of the testator’s estate. The testator’s widow and daughter, as residuary legatees under the will, took the bulk of the estate, and the daughter claimed the land in question, as heiress, by inheritance, and sold to the plaintiff. The widow joined in the conveyance. The testator died prior to 1791. The defendant’s deed was not recorded.
    For the plaintiff it was contended, that as the deed to the defendant, from- the executor, was not recorded, the plaintiff’s deed was entitled to takes effect. But the presiding judge was of a contrary opinion. 'I’he motion in this court was oti the ground of misdirection ; and Nott, for the plaintiff, in support thereof, argued, that the power given by the will to the executors to sell, was a nuked trust, and conferred no estate on the executors. The estate did not vest in the executors, but descended to his heir at law. The executors did not execute their trust according to the will, and, therefore, the deed to the defendant is invalid. The poner to sell is coupled with a condition in law. Co. Litt. 236. If the land had been devised to the éxecutors, with directions to sell on a trust, the estate would have vested in them; but it was not so devised, but a power was given to sell. The estate was part of the residue undevised, in particular; therefore the heir had a right to enter, until a sale should he made ; and if no sale should be made, to keep as heir, and to alien. Until a sale by the executors, the purchaser from the heir might take the profits. The widow and daughter’s possession under the limitation act, good against the deed of the executors. The purchaser from the heirs was ignorant of the will. The deed made by the executors not being recorded, must yield to the deed from the heir. As both deeds emanate from the representatives of the testator, the first recorded is entitled to be preferred. A. A. P. L. 3. A. A. 1785. A case within the policy of the law, to prevent deceits by double conveyances to the prejudice of innocent purchasers. Fonbl. 22. P. L. 882. The act of assembly of 1785 is retrospective. The plaintiff’s deed, registered in Charleston, was right.
    
      Note. Per Lawrence, J., in Hilton v. Iienworthy, 3 East. 558. A power of sale does not, of itself, give the legal property. Where a man directs his executors to sell, until sale the land descends to the heir at law, and he may enter. So says Ld. Coke. Co. Litt 236, a. If no words of devise to trustees to carry the legal estate to them. Per Ld. Ellenborough. See 4 East. 496, Paddy v. 
      Maddera, and the cases cited. 4 T. R 89. Cowp. 355. 5 T. R. 538. 6 T. R. 175. 1 Bos. and P. 558. 2 Atk. 341'. Ld. Olenborongh says — The executrix took a fee; for she is charged with paymems of debts fche cannot have less than a fee, because she is empowered to sell, which she cannot do without a fee. \V here a devise is only after payment of debts, the charge is upon the land, and devisee takes nothing until after the charge is satisfied. But where the devisee himself is charged with the payment of the debts, there he must take the fee. 8 T. It. 1. 3 T. R. 356. 2 Bos. and P. 247.
    
      Stark, contra.
    
    The old act relative to double conveyances was repealed, by the act of assembly of 1785. And the last mentioned act has no retrospective operation. The deed to the plaintiff was made since 1785. It was not recorded in the clerk’s office of Richland district, as register of mesne conveyances, but in Charleston. But this is not a case of a double conveyance, within the intent of these acts.
   5th May, 1810.

Bay, J.,

delivered the opinion of the court. At the time the deed of conveyance was executed by the widow and daughter of Dr. Hailey, in quality of heir, the estate had been legally sold by Dr. Hailey’s executor, in pursuance of a power given by the last will of Dr. Hailey, empowering his executors, or the survivors of them, to sell. The pretended heir, then, had no estate, even admitting she might enter as heir. She could not rep-represent the testator in selliug this property, for it was already dis. posed of by his executor. The trust was executed. But she could not take as heir, but as residuary legatee, under the will. She could not represent the testator as heir, because he did not die intestate as to this property, or any other part of his estate. It is not a case within the meaning of the law relative to double conveyances.

New trial granted.  