
    *Mary Dabney v. H. Manning and C. B. Wick.
    .Power given to executor by will to sell land, when, in Ms opinion, sale can be made to good advantage, and proceeds devised to be distributed to children as they come of age, is a power connected with a trust, and executor entitled to possession of the land.
    .Lands sold on proceedings for partition, subsequently reversed, purchaser who entered under purchase not liable in trespass for acts done while decree was in force.
    This was an action of trespass for breaking and entering the plaintiff’s close, and was adjourned here for decision from the •county of Trumbull, upon a special case.
    The plaintiff was executrix of the last will of N. G-. Dabney, deceased, which had been duly proven and recorded, and the executrix had excepted the trust under it, and qualified. The will contained the following bequest:
    “ I do will and ordain, that my executors hereinafter named, do ¡sell my farm on which I now reside, containing one hundred and sixty-eight acres, whenever, in their opinion, they can do the same Ao good advantage.”
    
      By other provisions in the will, the proceeds of the sale were devised to be distributed amongst the testator’s wife and children; to be paid to the latter as they arrived at the age of twenty-one. The plaintiff, who was named executrix, was the wife of the testator. The other person named executor in the will declined to accept the appointment.
    The plaintiff adduced no other title or evidence of right of possession than that contained in this devise.
    The defendants set up a defense upon the following foundation: The heirs at law of N. Gr. Dabney were some of them infants. One, who was of full age (the executrix not having sold the estate), filed a petition for partition, in the court of common pleas of Trumbull county, where such proceedings were had, that the court made an order for the sale of the land, it being reported incapable of division. That order appointed N. Scott to make the sale, in these words: “It further appearing to the court here that there is no administrator on the estate of N. Gr. Dabney, it is ordered by the court that N. Scott be appointed administrator, to' make distribution of the avails of said lands, etc. It is also ordered by the court here, that an order issue to said administrator to sell the land, in the petition described, at public vendue,” etc.
    Under this order, Scott proceeded to sell the land; the defendants became the purchasers, and Scott made them a conveyance, in which no reference is made to the judicial proceedings under which he acted. He describes himself as *11 administrator to sell the lands and tenements of Nath. Gr. Dabney, late deceased;” and in the covenant of title, he recites his power thus: “ I, the - said Nehemiah, in my said capacity as administrator to sell the' lands and tenements of N. G-. Dabney, late deceased, do, for myself, my heirs, etc., that at, and until the unsealing of these presents, I am, in my said capacity of administrator, well seized of the premises as a good indefeasible estate in fee simple, and have good-right to bargain and sell the same in manner and form as above written.” Under this deed, the defendants entered and took possession. Subsequent to the sale and conveyance, a writ of error was brought, on the proceedings in partition, and the order of the court of common pleas, directing the sale, was reversed. The defendants then abandoned the possession.
    Upon this state of facts, two questions were raised for decision
    
      1. Had the plaintiff such possession of the premises, as that she ■could maintain an action of trespass for an unlawful entry upon it?
    2. Can the defendants protect themselves under the purchase ■from Scott?
    P. W. Btjrr, for plaintiff:
    The devise to the plaintiff, as executrix, eonferred upon her a power or trust, coupled with an interest. Howell v. Barns, Pow. Dev. 306; Jackson v. Ferris, 15 Johns. 346.
    The power to sell, given to the executors, is to be exercised by them, in point of time, at their discretion. The proceeds of sale are to be appropriated in payment of legacies, which are not to be paid until legatees respectively arrive at full age. By these provisions, a trust of an important nature is created in the executors, which entitled them to the possession of the land. They, consequently, can sustain trespass for disturbing that possession.
    The sale under which the defendants entered, made by Jones, as administrator, can neither protect nor justify them. Jones could not be appointed administrator, because there was an executrix. Toll. Ex. 119, 120. The grant of administration being void, all acts performed under it are void. *Id. 127, 128. And an enti’y under such authority is a trespass upon him to whom the right of possession belongs.
    Loomis and Mutcaut, for defendants:
    The sale and conveyance by Scott, under an order of the court, forms a valid defense to the present action. The court had juris■diction over the subject, and in such case strangers who acquire rights are protected. In this case the defendants were sti’angers to the px’oceedings in partition, and can not be affected by their reversal. 3 Caine, 261. The original enti’y being lawful, the ■defendants can not be made trespassers by relation. 13 Coke, 21; 11 Coke, 51. And they abandoned the possession upon the reversal of the judgment under which they entered.
    | It is not conceded that, under the will, the plaintiff was invested with an intex-est or trust as well as with a power to sell. The •authorities cited in support of this position do not, so far as we ^an pei’ceive, warrant the conclusion that the will vested any title in the executors that took away the descent to the heirs, or defeated their right of possession previous to the execution of the power. But as we regard the other point of defense sufficient for the protection of the defendants, it is deemed unnecessary to discuss this.
    Burr, in reply:
    It is claimed by the counsel for the defendants that the order of court, the sale and deed by Scott, constitute a part of the proceedings in partition. The power to sell and make a deed to tha purchaser, in proceedings of this kind, is by statute (vol. 22, p. 230) confided alone to the sheriff. No discretion is given to the court of common pleas to make an order to an administrator to sell, substituting him in the place of the sheriff. The sale and deed by Scott were, therefore, without authority. The statute has not, the court of common pleas could not give it.
    The power and jurisdiction of the court of common pleas, with respect to proceedings in partition, are special and limited. As well might the defendants have produced a judgment and execution from a court at law, in support *of the sale and deed by Scott, in the character of an administrator. In both cases the sheriff is the proper and only officer authorized to sell.
    The argument for the defendants assumes too much. The court may have jurisdiction over the subject matter, and their proceedings, notwithstanding, be void/ There must be a jurisdiction over the process, and over the person of the defendant. Further, it is presumed that a judicial proceeding may be void for error in the judgment of the court, as where it should be adjudged that the defendant give a deed of conveyance in a personal action instituted in a court of law, or that the defendant submit to be beaten. An. attempt to enforce such a judgment would undoubtedly be illegal. The plaintiff need not have waited for the reversal, by a superior tribunal, of the proceedings in partition. They would have formed no barrier to an ejectment. The doctrine of relation, therefore, ■has no application in the present case.
    Whatever irregularity there might have been in the proceedings on the indictment, in the case cited from 3 Caine, it does not appear whether the proceedings were void or merely voidable. Nor does it seem material. The plaintiff in that case was, by the proceedings on the indictment, divested of the possession. The possession was in Bull at the time the supposed trespass was committed. It is clear, from the case of Lyford, 11 Coke, 51, and Manilla’s case, 13 Coke, 21, there cited, that the plaintiff could not have sustained his action, had Bull in that case ousted him, even without the color of a judicial proceeding. Had the proceedings been coram non judice, still the action could not have been sustained. The cases, therefore, are not analogous. In this case the defendants, Manning and Wick, entered upon the immediate possession of the plaintiff. Had the demandants been put into the possession of the premises by virtue of the proceedings in partition, had the defendants entered while the plaintiff remained divested of the possession, the cases would have been parallel.
   By the Court :

The testator in this case directed his executors to sell his real estate whenever, in their opinion, they could do so *to good advantage. He devised the proceeds of sale to be paid in shares to his wife and children, and appointed the payments to the children to be made when they should respectively become of age. We can not consider these provisions as giving to the executors a mere naked power to sell the land, because they confide a discretion as to the time of making the sale to good advantage, and because they are intrusted with the charge of the proceeds until the time appointed for paying it to the legatees. The executrix had an interest in the performance of the trust thus confided to her, and she had also an interest as one of the devisees of the proceeds. For the preservation of these interests, the law entitled her to the possession of the land, from which they could not be separated. 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. We are consequently satisfied that the' plaintiff has such right of possession as enables her to sustain this action.

The laws of this state provide, that where lands descend in parcenary to heirs, some of whom may be of full age, and some minors, those of full age may petition for partition; and the power of hearing and determining upon this petition is conferred upon the courts of justice. If, upon certain proceedings, it shall appear that the lands-can not be partitioned to advantage, power is given to the court® to direct a sale, and to distribute the money.

The proceedings and judgments of the courts, in a petition for partition, must, like judicial proceedings in all other cases, bind both parties and privies, while they remain unreversed, however erroneously they may have been conducted.

In this case, the court of common pleas clearly were invested with jurisdiction over the subject, and between the parties. Whether such interest descended to the heirs of Dabney, as entitled one of them to demand partition, was a judicial question, which that court were competent to decide. It naturally arose in the cause, and the decision of it concluded all concerned until reversed. The adjudication *upon every other fact in the cause, was of the same character.

It is urged, that by law the court are, in case of a sale being ordered, directed to require that the sale be made by the sheriff, and that, in this case, they appointed another person to make it. But this error could not have the consequence of taking away their jurisdiction, nor of rendering the sale void. They were authorized to direct a sale, by one person, and they directed a sale by another. There is no just analogy between such a case, and one where the court adjudge that to be done, which the nature of the action does not warrant, as adjudging that a defendant make a conveyance for land, or receive a beating in a personal action.

The judgment or decree, in the proceeding for partition, does not pretend to constitute Scott administrator for any other purpose, than perfecting the objects of that decree. The sale made by him was approved by the court, and the deed made accordingly, although it does not specially refer to the proceedings in partition as its foundation. The defendants purchased under the order of sale, and received their deed in confirmation of that purchase, and took possession under it. For the irregular proceedings of tho court, or of the person acting under its authorities, the defendants were not responsible. Whilst the decree remained in force, the plaintiff was divested of title, and the defendants invested with it. They committed no trespass by entering, for they entered under authority of law; and that they can not be made trespassers by relation, stands as strongly upon authority, as it does upon the principles of good sense, common honesty and justice. It is for the possession thus obtained and continued, and abandoned with the destruction of the foundation upon which it stood, that this suit is brought. It is our opinion that it can not be sustained, and that the law of the case is with the defendants, for whom judgment must be given.  