
    * John C. Winans and Samuel Winans against Aaron Brookfield, 
    
    IN CASE.
    Evidence. Damage?,
    THIS was an action on the case, for overflowing lands, tried before the Chief Justice, at the Essex circuit, in September, 1819. The declaration was in the common form ; the lands situated on Rahway river; the pleas, not guilty, and liberum, tenennentum, with notice, &c. The plaintiffs, who were infants, shewed title to the lands, by descent from their father; and proved, that since the dam was built, by defendant, in 1815 or 1816, about three acres of the land had been overflowed, so as to injure and destroy grass, trees, &c. to the value of $300, in the opinion of some of the witnesses. That in April 1809,'the administrators of plaintiffs’ father, obtained an order of the Or. phans’ Court, to sell seven acres, to raise $78, a deficiency in the personal estate; that one of the administrators bid at the sale, and the land was struck off to him; and he afterwards sold to defendant for $500; the administrator representing the land to be valuable, on account of the mill-seat upon it. The defendant proved the injury to be $60, or $70, or $90; that there was one, or one and a quarter acre, overflowed;\ and that the dam had been raised about eighteen or twenty inches, by the defendant, which occasioned the overflowing. The defendant offered to read the deed from the administrators to him, for the land ; to which the plaintiffs objected ; because it appeared, upon the face of the deed, that the administrators had not pursued, but exceeded their authority; that one of them bid off the land, and then conveyed to defendant, without any public sale. The Chief Justice overruled the deed. The jury found a verdict for $269, damages.
    The rejection of the deed ; and the amount of damages; were the reasons filed for setting aside the verdict.
    
      Attorney-General.
    
    The deed was not to be rejected, because one of the administrators bid; this is an exception, only in a court of equity. 14 John. 407. 2 John. Ch. Cas. 252, 263. The deed was, really, made to the highest bidder, the purchaser, and there was no pretence of fraud; the heirs received the money. Besides, the lot was bought for a mill-seat, as appears by the *deed itself; and it follows, that the purchaser had a right to use it for that purpose, though he did overflow the adjoining land. Again; the deed was proper evidence in mitigation of damages; and by its rejection, they were made excessive. That they are so, is manifest from the whole evidence.
    
      Scudder in answer.
    1. The seller cannot be the purchaser. Sug. Vend. 393. 3 Br. Ch. 120. 8 Br. Parl. 63. 2. A man cannot make a deed to himself. 3. The statute requires the highest bidder to be the purchaser; this must be strictly followed by the administrator. He must pursue his power, like an attorney. Pow. on Pow. 78, 83. 4. If the deed was valid, it was inadmissible, because unconnected with the issue. The administrator could only convey title to the land, not a right to use it, so as to injure and destroy the remainder of the estate. Even if the intestate had sold, the buyer would have no such right. And the deed could not support the plea of liberum 
      tenementum,, because the complaint was for injury done to other lands, not those in the deed..
    The damages were not excessive; not equal to what was sworn to.
    ■ But 'Brookfield, the defendant, is dead ; the action does not survive against his administrators; and the effect of setting aside the verdict, would be to deprive the plaintiff, altogether, of its benefit. This the court cannot do. Pat. 146, sec. 1, 147, sec. 6. 1 Saun. 217, n. 1. 1 Bur. 147.
    
      
      
         An administrator may purchase the real estate of his intestate at a judicial sale, but, if collusion be proved, the deed is voidable. Den, Rickey us. Hillman, 2 Hal. 180. Runyan vs. Newark Rubber Co., 4 Zab. 475. Mulford vs. Bowen, 4 Hal. Ch. 751. 1 Stock. 797. Obert vs. Obert, 2 Stock. 98. 1 Beas. 423. Mulford vs. Minch, 3 Stock. 16. Culver vs. Culver, 3 Stock. 215. Wortman vs. Skinner, 1 Beas. 358. Huston vs. Cassedy, 2 Beas. 228. S. C. 1 McC. 320. Howell vs. Sebring, 1 McC. 85. Johns vs. Norris, 7 C. E. Gr. 102. March Term 1875, Court of Errors. Smith vs. Drake, 8 C. E. Gr. 102. An executor or trustee cannot sell the trust property to himself. Arrowsmith vs. Van Harlingen, Coxe 26. Den vs. Wright, 2 Hal. 175. Den, Obert vs. Hammel, 3 Har. 74. Winter vs. Geroe, 1 Hal. Ch. 319. Williamson vs. Johnson, 1 Hal. Ch. 537. Scott vs. Gamble, 1 Stock. 218. Holcomb vs. Holcomb, 3 Stock. 281. Trenton Banking Co. vs. Woodruff, 1 Gr. Ch. 118. Hurter vs. Spengeman, 2 C. E. Gr. 185. Staats us. Bergen, 2 C. E. Gr. 297. Booraem vs. Wells, 4 C. E. Gr. 87. Blauvelt vs. Ackerman, 5 C. E. Gr. 141. Wright vs. Smith, 8 C. E. Gr. 106. Colgate vs. Colgate, 8 C. E. Gr. 372. Romaine vs. Hendrickson, 9 C. E. Gr. 232. See Earl vs. Halsey, 1 McC. 332. Den vs. McKnight, 6 Hal. 385. Shepherd ads. Hedden, 5 Dutch. 338, per Green, C. J. Runyon vs. Newark India Rubber Co. 4 Zab. 468. But the title of a subsequent innocent holder is not affected. Scudder vs. Stout, 2 Stock. 377. Booraem vs. Wells, 4 C. E. Gr. 87. Johns vs. Norris, 7 C. E. Gr. 102. See Brown vs. Folwell, 3 Hal. Ch. 593.
      
    
   The Court,

discharged the rule, and directed judgment to be entered on the verdict. The deed could have no operation upon the question of damages. If it be considered a valid deed, free from legal exception, it can give the defendant no right to overflow the. adjoining lands; lands, not contained within it. And although the damages seem high, yet, as some of the witnesses swore to more than were given, and as the jury were the best judges of their amount, the verdict cannot be set aside on that ground.

Rule discharged.  