
    Sophia Bostick et al. vs. James Winton et al.
    
    1. W ill. Construction. Remainder. Power of appointment in tenant for life. Where a testator devised to his son the tract of land upon which said son then lived, during his life, or so long as said son shall continue to reside on the same, at his death or removal to go to the children of such son, or their representatives in fee, with a discretionary power of disposition to said son, at any time before Ms death or removal therefrom, by deed or will to convey said land to any one or more of his said children, so as to vest the entire estate in said child or children, provided that if said son should fail to exercise said power of disposition, that said children shall take equally at the termination of the particular estate, with a provision that the wife of said son, (should she survive him,) should have a life estate in said land ; such a remainder is vested in all the children, subject to the special devise to the wife, and oould only be defeated by the bona 
      
      fide exercise of the power of appointment. It took effect at the death of the son, or Ms removal from the land, provided he had not legally exercised said power of appointment. Upon this contingency alone the remainder depended, and if it did not happen, the children, whether horn before or after the death of the testator, are the unquestionable owners of the estate.
    2. Power op appointment. How exercised to be valid. A power of appointment must be exercised in good faith for the benefit of those who are intended beneficiaries under it. If it appear that it has been exercised col-lusively, and for the benefit of the party exercising it, such exercise is a fraud upon the power and cannot be maintained. Thus, where a father has a power of appointment to either of his children he might choose, and being- required to give bail for his appearance at court to answer a criminal charge, conveyed the estate to one of his sons in order to render said son a good and sufficient surety on his bail bond, who was to reconvey at the end of the prosecution, and the father afterwards sold the land, the son executing- a deed to the purchaser, but receiving no part of the consideration therefor, such exercise of the power being- for the father’s own benefit, was therefore void.
    3. Caveat Emptor. Purchase at execution sale. Notice of imperfect adverse title. While a creditor or other person purchasing at a creditor’s execution sale, is not affected by notice of imperfect adverse titles; yet, in a contest with those who rely upon a good and perfect legal title, caveat emptor is the rule, and such purchaser must look to and stand upon the title he has purchased.
    prom franklin.
    This bill was filed by tbe 'complainants, Sophia Bostick and her children in the chancery court at Winchester, for'the purposes and upon the facts fully given in the opinion. At the February Term, 1853, Hon. B.. L. Ridley, Chancellor, rendered a decree in favor of complainants, from which the respondents appealed.
    Colyae, for complainants,
    with whom was W. P. HiokeRsost, who said :
    1. Littleberry Bostick took a life estate with the power of appointment to any one or more of his children. His children took a vested remainder, subject to ho divested by the bona fide execution of the power of appointment. See 4 Kent’s Commentaries, pp. 20-5, and 323-4. Fearne on Remainders, 228.
    2. The power never was executed, or if executed it was done fraudulently, and for the benefit of Little-berry Bostick; and such an execution is absolutely void. See 1 Story, § 255. Sugden on Powers, ch. 7, § 2; ch. 9, § 4. Butcher vs. Butcher, 9 Vesey, 382. Madd. Ch. Prac., 246-252. 2 novenden on Frauds, 220-2. Kemp vs. Kemp, 5 Vesey, 856.
    3. Defendant, Winton, is not a purchaser without notice, and if he was he is not protected in this sort of a case. 2 ITovenden on Frauds, 220, 221. 3 Flay-wood, 147-152. 1 Yerger, 71-73. 2 Yerger, 196. 1 Humph., 491-497. 6 Yerger, 108-115. 1 Greenleaf’s Ev., 239-243; see § 262.
    Thompson and Tübney, for respondents,
    with whom was E. H. Ewing, who said:
    1. Is the remainder in this case, vested or contingent? Upon this point I shall rely upon the brief of Mr. Thompson.
    2. If vested, was there actual fraud in the execution of the power? If there was not, then Winton’s title is good. Upon this point I shall rely mainly upon the argument of Mr. Turney. I would, however, call the attention of the court especially to the position of John G. Bostick, who has every inducement now of real interest in behalf of his family, to have the conveyance to him set aside. His testimony proves against him, if now true, both “fraud and falsehood at the date of his father’s conveyance to him. What he says now, is, that he and his father concocted a fraud, and told falsehoods to Ready and Sneed to conceal it. "What reliance can be placed on him. Ready and Sneed and Judge Anderson prove the execution of the power to have been fair. Littleberry Bostick was, according to their proof, to have no interest in the property, present or future. The Court will, however, examine this testimony more particularly 'than I can do under the circumstances. The competency of Ready and Sneed is not successfully attacked. Their testimony is in favor of the fairness of their clients; is not objected to by their clients, and is in regard to a matter about which there is no proof — -that they were employed as counsel by either of the Bosticks. Certainly John C. Bostick was not their client. Their testimony is mainly as to the res gestae.
    
    3. Suppose there was actual fraud in the transaction as between the two Bosticks, how does this aífect "Winton ? He is a Iona fide purchrser without notice: 1. Because he was himself ignorant of the fraud; and if not, 2, he stands in the shoes of Ready and Sneed and Tur-ney, neither of whom knew of the fraud.
    4. But it is said that where there is a fraud upon a power of this description, even a bona fide purchaser without notice, will not be protected. Ho authority supports this idea. 2 Hovenden on Frauds, pp. 220, 221,- &c., states that, in such a case equity will not aid a bona fide purchaser against a remainder-man in possession. In the same connection, however, and at pp. 223, 224, it is said that where such a purchaser had got possession the Court would not take the least step imaginable, against him. The cases cited in Ho venden, viz: Twton vs. Benson, 1 P. Whirs., 496. Strode vs. Blaeliburn, 3 Ves., 225. Wallwyn vs. Lee, 9 Ves., 24; and Seward vs. Saunders, 2 Ves., 458,' sustain this latter doctrine. Winton is in possession.
    5. It is said, though, that the defense of bona fide purchaser, without notice, is not well set up. Winton says he paid $2,000 for the land, part to Turney, and for part he gave his notes; that these notes were traded off by L. Bostick and paid by him, (Winton.) The payment to Turney was at the date of the conveyance. The payment of the notes were not to 'be escaped because they were traded off. There was no adverse possession of the land; there never has been. Little-berry Bostick was in possession of the land, and is stated to have been so, and acted for John Gr. Bostick. The price given for the land was, though not a full price, yet a fair oneand all these facts appear in the answer, though not very technically, yet substantially. The requisitions of a plea of this kind, or of an answer setting up this defense, are, in substance, complied with. If) however, Winton, standing in his own shoes, cannot be said to be a bona fide purchaser without notice, or to have put in his plea in proper form as to himself; yet, as standing in the shoes of Beady and Sneed and of Turney, he does occupy this character, and they are shown to have occupied it. I cite no authority upon this latter point, because it is doctrine familiar to the court.
    6. Winton’s title is good, because he stands in the shoes of Beady and Sneed, who were creditors and purchasers ' under a judgment and execution against John G-. Bostick, who had the legal, and to all appearance, the equitable title to the land. They had no notice of any fraud in the conveyance from Littleberry Bostick to John Gh Bostick, and if they had, as creditors, were not bound xto notice-it. It is not a case where the doctrine of caveat emptor applies. They purchase under a title apparently good, and their grantee is in possession. The judgment sale under it, and sheriff’s deed to Ready and Sneed, are all stated in the answer, as well as their sale and deed to Turney, and his deed to "Wdnton; all of these deeds are offered by defendant, and without objection are received in evidence in the court below, and are now parts of this record. The judgment, it is true, is not in the record, nor is it necessary, where the purchaser under the judgment, or his assignee, is ■ in possession, and his title is attacked. The sheriff’s deed is, in such a case, prima fade evidence of the facts recited in it, and conclusive, if unobjected to, unless the contrary be shown. This doctrine has been repeatedly recognized by this court, and especially at the last -term in the case of Edmis-ton <& McEtom vs. Robertson et al. If Winton were driven to his ejectment this might be different. This last position is conclusive of the case.
    Hickbeson', in reply.
    It is assumed that John G-. Bostick has every motive of family feeling and interest in behalf of complainants, and therefore his testimony is to be received with caution. It is true he is the brother of a portion of complainants, and the son of complainant Sophia N., and so far as such position may affect him he is liable to criticism. But, on the other hand, he has every motive of self-interest and preservation, in favor of defendant, Winton, to whom he conveyed the tract of land in controversy by a deed, containing a clause of general and special warranty. In any event, Winton gets John G.’s portion of the land, and if complainants gain the remainder of the tract John G. is liable to him upon his deed aforesaid. So that there is personal interest in favor of defendant, and family feeling and attachment in favor of complainants; but if he stood alone and unsupported, the attack made upon him would be less difficult; but he is sustained by John G. Bostick, of Memphis, who proves the transaction. lie is sustained and corroborated by Philip Boberts, who it will be seen, was one of Littleberry’s securities, and was present when the thing was done, I mean when the security was given, and Judge Anderson says the execution of the deed and the giving of the security were at the same time. As to the reason why the deed was executed by Littleberry to John G., (and this is the important fact,) he is directly sustained and corroborated by Judge Anderson, and is substantially sustained as to the object in making the deed by Beady and Sneed. Mr. Beady says Littleberry said before or about the time he executed the deed, “that it (the deed) would answer an important purpose, that of enabling John G. to become one of his securities.” So that the only difference between them is, that Beady and Sneed, and Judge Anderson did not hear the agreement between John G. and Littleberry; that if Littleberry made his appearance the land was to be rcconveyed back to Littleberry as it was before; and it is wholly unimportant whether this statement is true or false; for the important inquiry is, was this power executed by Littleberry by a contrivance with his son, so as'to enable the father to receive a beneficial interest by the execution of the power. If so, it is actual fraud. See 1 Story, § 255, and authorities cited. All the witnesses on both sides prove this to be so.
    2. It is said, if there be actual fraud in the transaction, that Winton is an innocent purchaser himself, and is protected. I still hold that the proof all shows that he had actual notice. So far as the result of this case is concerned, it is wholly unimportant whether it be the law that such notice is necessary or not, for he was actually notified by the facts and by persons who knew how it was. But simply to vindicate the law, I call the attention of the Court upon this point to the following additional authorities not quoted in my brief in this case; which authorities I think show that were he even an innocent purchaser, he cannot, as against complainants, hold the land. See Alyn vs. Belcher, 1 Eden, 138. 2 ITovenden, 222. See Shales vs. ShaVy, 8 Sem., 156, 157, cited in note 4, pp. 386-7. 1 Story Eq.
    MBiile it is laid down in al‘1 the books that bona fide innocent purchasers, for a full and fair consideration, and clearly shown to be such, are favorites with courts of equity; the doctrine can only prevail in cases where the opposite party has been guilty of some laches, so as to give such as set up the defense of an innocent purchaser superior equity; or in case3 where such, party Iras innocently and fairly acquired tire legal, and is attempted to be ousted by a party whose title is defective, and who has no superior equity. The defense cannot prevail against a widow’s right to dower, because the right to dower is a legal right, and the plea of an innocent purchaser can never be applied to, or prevail against a legal title. See 1 Story Eq., § 630, and note 2, same page.
    The same principle applies with equal force to the case at bar, and is the ground upon which the distinction proceeds; the complainants here have (if the power was not executed, or if fraudulently executed; for, if fraudulently executed it is no execution at all) a clear legal title. A title liable to execution at law may be sued and conveyed as any other estate. See 4 Kent, 204. This title is acquired under the will of ‘William Bostick; and to enforce this legal title by the removal of the incumbrances that defendant has upon it, created not by complainant’s vendor, but by others, that they come into this court, and the defendant relies upon an equitable defense, the defense of an innocent purchaser, to such legal title; such defense cannot be made. See 1 Story, § 630.
    3. It is said he stands in the shoes of Beady and Sneed and Turney, who are innocent purchasers if he is not. This cannot avail him: 1st. Because they are not such innocent purchasers. They contracted directly with Littleberry Bostick, the trustee. They appropriated the trust fund directly to the payment of the individual debt due them by the trustee. 2nd. Because this defense cannot avail a defendant unless relied upon in defendant’s answer. He does not, in his answer, rely upon the defense now set up for him. He does not rely upon the fact that Ready and Sneed, or Turney, are innocent purchasers, and claim to protect himself under them as such. This is absolutely necessary. See authorities cited upon this point. 1 Ter., 71-73. 2 Ter., 196. 6 Tpr., 108-15. 1 Humph., 491-7. The bill says nothing about this; it is not set up in the answer, and this court can only decree upon matters stated in the bill or answer, and cannot decree upon the proof alone. This principle is familiar to the court.
    4. It is said that .although these defenses may not prevail, still it is said Ready and Sneed had the land sold, became the purchasers, and they conveyed it to Turney, he to Winton, and therefore, as creditors, they are not affected by notice: 1st. To this it is answered, that it is not true that John G-. had the legal title. A deed fraudulently executed conveys no title, except as against the party executing it. Complainants having the legal title cannot be ousted of it by any such conveyance, they not being parties to it. 2d. It is not true that defendant’s vendor, John G-. Bostick, or Turney, or Ready and Sneed, ever was in possession of the land, but on the contrary, it was up to, and until after 'those transfers, in complainant’s possession. 3rd. There is no allegation in complainant’s bill stating the existence of a judgment in favor of Ready and Sneed, nor in favor of Mr. Turney. There is, in the bill no allegation upon this subject. This judgment, sheriff’s sale and deed, are set up in the answer, not for the purpose now insisted upon but as muniments of title. There is nothing, I suppose, better settled, than that, where a party sets up matters in his answer in advance of the allegations in the hill, that the onus is upon the defendant to prove these allegations; in other words, nothing is evidence for the defendant in his answer unless it is responsive to the bill. Defendants have not introduced the record of any judgment or execution authorizing a sale of land in controversy. They have received a sheriff’s deed, simply. This is not evidence of a judgment or execution. A party relying upon a sheriff’s deed for title, must produce and read the record of the judgment authorizing and directing such sale, and without this the sheriff’s deed is no muniment of title. See Kimlrough vs. Bmton, 3 Humph., 129. 3 Humph., 16. Mitehell vs. Ivpe, 8 Yerg., 179. The record must show also that defendant in the execution was served with process. If these things do not appear the judgment is a nullity, and the court must so determine on the production of the record on the trial of a collateral issue, either at law or in equity. 5 Haywood, 139-55. 1 hleigs’ D., 448-9.
    But it is said, that if the purchaser execution sale is in possession, and has a deed reciting the fact of the existence of a judgment, that is sufficient. I can find no such case. It is possible that such might be the case if the party suing for the land was the execution debtor, whose title the purchaser, at execution sale had purchased. I can see some reason why this might be so, for the facts would be within his knowledge, and he, in such case, might be compelled to show negatively that there was no such judgment. But this is not that case; it differs from it in two important particulars- 1st, "Winton is not the purchaser at execution sale; 2nd, complainants are not the execution debtors, nor do they claim under or in privity with him, the execution debtor, but they claim under a superior legal title; they claim under the will of William Bostick, executed in 1835; and they, it is insisted, are to be ousted of their legal title by a sheriff’s deed, and this without any judgment against any one. This would be strange law. If such doctrine has ever been recognized by this court, I have not been able to find it.
    But again, can a purchaser at execution sale acquire any legal title superior to that' held by the execution debtor ? Surely not; he, so far as the legal title is concerned, stands in his shoes! So far as the questions of notice and of Urns are concerned, he may in many instances be better off; but these are equitable defenses, and have no application to the ease at bar, for complainants’ title is purely legal, and to such title these equitable defenses cannot be set up. This defense is not made in the answer, and cannot be decreed upon. In any and every aspect in which the case can be presented, the decree of the chancellor is correct and ought to be affirmed.
    It is said complainants did not object to the reading of the sheriff’s deed. True, nor could they have done so; it is correctly proven, and defendants had the right to read it for what it was worth, and without the judgment it proves nothing.
   CaRüthees, <J.,

delivered the opinion of the court.

This bill was filed by the children and widow of Lit-tleberry Bostick, claiming the remainder in a tract of land under tlie will of 'William Bostick, the father of said Littleberry, against the defendant Winton, who claims by purchase and regular deraignment of title, as he insists, under the will.

The facts as they appear in the record are these: William Bostick made his will and died in 1835. In the third clause he devises to his son Littleberry, a tract of land on which the latter then resided, of three hundred acres, in Eranklin county, during his life, or so long as he continued to live upon it; “at his death or removal, the same to go to his children or their representatives in fee.” He then gives him a limited power of disposition in these words: “But I give to my son, Littleberry, at any time before his death or removal, by deed or will, the power to dispose of said land to one or more of his children, so as to vest the entire estate in such child or children, if he should think proper to do so.” In the 7th clause he gives to the wife of said Littleberry, if she should outlive her husband, fifty acres of said tract of land, including the mansion house, with timber to support the same during her lifetime or widowhood. In the 14th clause he provides that if the parent should fail to exercise the power of disposition to one or more of the children, then they all shall take equally at the termination of the particular estate.

In 1841, Littleberry Bostick, in the exercise of the power given him in the will of his father, made a deed in fee for the tract of land to his son, John G-. Bostick. At this time Littleberry was under a prosecution for the murder of Lefever, and anxious to procure bail for his appearance. He offered his said son, John G-., who, being then insolvent, would not be taken by the court. Whereupon, the land was conveyed to him under advice of counsel, and he was then received as hail. lie also became security of his father for his lawyers’ fees, amounting to $1,000. In June, 1842, Ready and Sneed recovered judgment on their fee note, and levied upon the said land as the property of John G. and Littleberry Bostick, and became the purchasers at the amount of their debt, including interest and cost, $574.12. II. L. Turney had taken a mortgage on the same land to secure his fee note for $500 against the said Littleberry and John G.

On the 27th of January, 1845, Mr. Turney redeemed the land of Ready and Sneed, and received a deed. John G.^ soon after the deed to him, removed to Georgia, never having taken possession of the land, but the wife and other children of said Littleberry remained upon it, as before, until his time of confinement in the penitentiary expired, and he returned, when he sold the land to defendant, Winton, for $2,000. About $1,200 of this was necessary to pay off the incumbrances in favor of Mr. Turney. The balance was paid to Littleberry, or those to whom he assigned the notes. John G. came up from Georgia and made the deed to Winton, and Mr. Turney also executed a quit claim deed.

■It is jDroved by John G. that he told Winton he had no title, and explained fully to him the whole affair. The proof also shows that the land was worth at the time from three to four thousand dollars. He also proves that he was to convey the land back to his father after the prosecution was ended, and that he got no part of the consideration for which it was sold to Winton. The proof is clear that Winton knew all about the state of the title, and the cause of the deed to John &., as well as the rights of complainants.

The said Littleberry died- in 1848, leaving the complainant Sophia, his widow, and the other complainants, together with defendant, John GL, liis only children.

It will be seen from this statement of facts, that the main question which alises is, whether the conveyance to John G. was a valid exercise of the power conferred upon Littleberry by the will of "William Bostick. And we consider it very clear that it was not. Littleberry Bostick took only a life estate in the land, coupled with a power of appointment to any ’one or more of his children, subject to the special devise of fifty acres to his wife, Sophia, if she should outlive him. The remainder was vested in all his children, and could only be defeated by the Iona fide exercise of the power of appointment. 4 Kent, 201, 202, and Reame on Rem., 277. 16 Virg., 491.

In this case the remainder vested in such children as Littleberry had at the death of the testator; and on the birth of other children, the estate opens and they are let in and become invested of equal proportions of the-property. 4 Kent., 205. The vested remainder in the children first becoming capable, is only disturbed by after born children in quantity so as to let in the latter for equal shares. II. So, by the terms of this will, an estate is given to Littleberry subject only to his continuance upon the land, and at his removal from it, or death, the remainder which was vested is to take effect, provided he has not legally exercised the power of appointment. Upon this contingency alone the remainder depended; and if it did not happen, the complainants, whether bom before or after the death of the testator, are unquestionable owners of the estate. Haywood's heirs vs. Moore, 2 Humph., 584-588. Fearne, 228-9.

Then was this power so exercised as to pass the estate to John G-., and defeat the contingent remainder to the complainants? The question is answered in Story’s Eq., § 255: “ A person having a power of appointment for the benefit of others, shall not by any contrivance use it for his own benefit. Thus if a parent has power to appoint to such of his children as he may choose, he shall not, by exercising it in favor of a child in consumption, gain the benefit' of it himself, or by a secret agreement with the child in whose favor he makes it, derive a beneficial interest from the execution of it.”

This position is well sustained by the cases referred to by the commentator, and we regard it as unquestionable law. In the case before us, the power was avowedly exercised in favor of John G-. for the benefit of Littleberry, and was to enable him, by becoming the owner of the land, to become security or bail, and for fees. It was then a fraud upon the power, and cannot be maintained. It did not therefore disturb, or in the least affect the rights of complainants which depended upon the contingency of a valid and "bona fide exercise of the power.

But secondly, it is insisted that the defendant is an innocent purchaser, without notice. ¥e think that question does,-not arise in this case, because the proof shows clearly that Winton, at and before his purchase, had full notice or knowledge of all the circumstances attending the conveyance to John G. and tho continued claim of complainants. Mr. Turney proves that at the time the deeds were executed to Winton, that the Bosticks agreed to get complainants to convey their interest to him. There can be no doubt of the fact that he purchased with full knowledge of the claim of complainants, and of the reasons and object of the conveyance to John G. But as he was getting the land at little-more than half its value, he resolved to risk it, and must take the consequences. It is then entirely unnecessary to examine the other grounds presented in the argument for and against the right of an. innocent purchaser to plant himself on that defense, and defeat the opposing title. We leave these questions to be settled when they necessarily come up.

Tho third ground assumed is, that the defendant stands in the shoes of Ready and Sneed, who were judgment creditors, and as such not bound to notice the title of complainants, and must prevail over it. The judgment creditors of Littleberry and John G. Bos-tick only purchased such title as they had, at the time of sale, and that passed to Mr. Turney at the redemption from them.

The defendant then, by his purchase and deeds from Bostick and Turney, only became invested with such title as they had. And this title as against complainants, must still depend upon the validity of the conveyance to John G. The title of complainants is derived from the will of William Bostick, and is a good and perfect legal title, which could only have been defeated in the single mode prescribed in said will; and this we have seen has not been done, as the fraud and bad faith in which the power was exercised renders it null and void, and leaves the rights of these remainder-men in the same condition precisely as if it had not been attempted. It is true that a creditor, or one purchasing at a creditor’s execution sale, is not affected by notice of adverse titles which are imperfect for want of registration, &c., but still they must look to, and stand upon the title which they purchase in a contest with those .who rely upon a good and perfect legal title. Caveat emptor is the undoubted rule in such cases. 2 Yerg., 394. 8 Yerg. 46, 58-9.

The defendant here has all the rights of John G. Bostick, Ready and Sneed, and Turney, but no more. The complainants have a clear legal title under the will, the valid exercise of the power out of the way; and this must prevail against a naked legal title derived under the sheriff’s sale.

The unreported case of Edmiston & McEwen vs. Robertson et als., decided at last Term, to which we are referred, rested upon a different principle entirely. In that case, the complainants endeavored to set up a parol defeasance upon an absolute deed, converting it into a mortgage, against those who claimed as purchasers at execution' sale of the same land as the property of the vendee.

That case was decided upon the ground that an equitable title resting in' parol, could not prevail over a purchaser of the legal title, fair upon its face, and duly registered under a judgment and execution against the legal owner. And further, that a knowledge by such a person of the outstanding equity, would not affect him any more than ~ notice of an outstanding unregistered deed. It would of course be different in cases of purchasers at private sale with notice. This was the point decided in that case. It has no analogy to this. There the person who had made a clear and unconditional conveyance of the land, which had passed into the hands of others^ attempted to disturb them by the assertion of some reserved equity to be established by parol and change the character and effect of his own deed. Here the title obtained' by the defendant, and those under whom he claims, originated in acts with which the complainants had no connection or concurrence. They come forward with a title originating in a different source, and independent in its character. There is no principle which can repel them, and they must prevail.

We have not thought it necessary to notice several other points presented which would be equally fatal to the success of defendant.

There is no error in the decree of the chancellor, and it’ will be affirmed.  