
    Henry Laird v. George W. Scott et al.
    
    1. Voluntary Conveyances. Act of 27th, Elizabeth, chapter 4. Construction of not so fixed and settled in England at date of American Revolution as to be a rule of properly. Tlie construction of 27th Elizabeth which in England since decision of Doe v. Manning, 9 East, 59, decided in 1807, by Lord Ellenborough, has been the settled law, that a voluntary conveyance is conclusively presumed to be fraudulent against a subsequent purchaser for value even with notice, was at the date of our American devolution unsettled, some Courts holding this construction, and some differently. ITence the English construction, only finally settled in 1807, was never adopted in Tennessee as a rule of property.
    Case of Cains v. Jones, 5 Yerg., 249, decided by Judge Catron in 1833, examined and the conclusion of that case that in Tennessee the English rule of construction had been adopted, dissented from.
    2. Same. Same. The acts of 27th and 13th Elizabeth swperceded by mir act of 1801, ah. 25. The act of 1801, ch. 25, was intended as a substitute for both the English statutes of 13th and 27th Elizabeth, and contains amendments and additions to 27th Elizabeth inconsistent with the English construction thereof. Under the act of 1801, a voluntary conveyance made with the intent to defraud a subsequent purchaser for value, is void against him with or without registration and with or without notice. A voluntary conveyance not proven and registered will be held fraudulent as against a subsequent purchaser unless such subsequent purchaser had actual notice of the prior conveyance. If a voluntary conveyance be made without fraud and is registered, it will prevail against a subsequent purchaser, whether such purchaser had actual notice or not of the prior conveyance.
    3. Same. Case in judgment. Husband made voluntary conveyance of a lot to his wife for and during her natural life to her sole and separate use and benefit, free from debts or control of her husband, and at death of wife the lot to be equally divided among four named children in fee simple, with power, however, of alienation to the wife for re-investment in other property to be held by her for life and in remainder to the four children. This conveyance was registered. Subsequently husband and wife by registered deed, for and in consideration of $200, and for services rendered them, and for natural love and affection, sold and conveyed to their son Joseph sixty feet of the unimproved portion of the lot aforesaid, the value of which portion was about equal to the fourth or the share in remainder belonging to said Joseph at the ter-ruination of tlie life estate of the wife and mother. In the certificate of privy examination to this deed the word “ voluntarily ” was omitted. The son took possession of the sixty feet under this deed, erected valuable improvements thereon, and to secure certain debts of his, executed three several deeds of trust on said sixty feet and the improvements. These deeds of trust were enforced, the sixty feet bought by one of the creditors, the complainant Laird, to whom the trustees executed registered deed. Subsequently to all this, the husband and wife treating the title of their son Joseph and Laird as void, conveyed the same sixty feet formerly conveyed by them to the son, to their daughter and son-in-law, Eloise Scott and G. ~W. Scott, the defendants, for the consideration of $2,000. Laird filed bill to declare this conveyance to Scott and wife void and a cloud upon his title derived through the son. Held, the deed to the son conveyed no title to him to the sixty feet, because: 1. The word “voluntarily” was omitted in clerk’s certificate of privy examination. 2. The wife had power only to sell for re-investment — not to convey for love and affection, or for advancement and partition. 3. The subsequent conveyance to daughter and son-in-law Scott, was void for the last named reason also. 4. Husband and wife having acquiesced in possession of the son, the erection of improvements by him, and the son being competent to convey his fourth interest in remainder, Laird, the purchaser, is the owner not of the sixty feet but the one-fourth undivided interest of the son in the whole lot, to be partitioned upon principles of fairness and equity upon the death of life tenant, the wife and mother; and meanwhile, pending the life estate, Laird is entitled to possession of the sixty feet and the use of the improvments.
    FROM SHELBY.
    Appeal from decree of Chancery Court of Memphis by both partes. W. M. Smith, J.
    Weight & McKissick for. the complainant,
    whose brief is not in the record as furnished the reporter.
    W. Y. C. Hhmes for defendants,
    with whom was Wm. L. Scott, who insisted—
    1. The deed, 25th August, 1854, from Barbiere, sr., and wife, to Barbiere, jr., shows on its face that it was not an execution, or attempted execution, of the power; but that it was a fraud upon the power and a breach of trust, in which Barbiere, jr., participated.
    2. It would be fraudulent, because of gross inadequacy: Wright y. Wilson, 2 Yer.; 10 Yer., 202-5; 2 Head, 289.
    3. It was not in execution of the power, because of the recitals of the consideration of past services as well as of love and affection: Campbell v. Fields, 1 Col., 416; Yowng v. Young, 7 Col., 476.
    4. It was not a valid execution of the power, because the whole lot was not sold; a part could not be sold: Niehol & Miller v. Iiandlay, 10 Grattan, 340; Hill & Wife v. McRae, 27 Ala., 175; Perkins v. Clack,, 3 Head, 734; Harris v. Alderson, 4 Sneed, 250.
    5. Barbiere, jr., stood in a trust relation to his sisters, both as to their interests in the particular estate and in the remainder, and was guilty of a breach of trust to them by taking the lot for $200, even if he ever paid it, and there is no pretense that he did.
    6. Laird is affected with notice of the breach of trust and fraud upon the power, both actual and constructive.
    
      Actual, because his attorney, Eldridge, investigated the title, discovered the defects and appreciated them. See his deposition: Myers v. Ross, 3 Head, 62, 63; Union Bank v. Campbell, 4 Hum., 394. Also, because Eldridge shows he furnished him with an abstract of the title and a statement of the difficulties: Eldridge’s deposition. Also, because they are recited in the trust deed to Eldridge, trustee for benefit of Laird: Record, p. 106.
    
      Constructive, because this deed was registered, and a part of Laird’s chain of title. See notes to Elliot v. Merryman, 1 Lead. Ca. Eq., p. 92, that the trusts attach on the property in such cases in the purchaser’s hands.
    
      7. These questions are, however, not raised by this record, the pleadings being framed in hostility to them.
    8. There are no questions here of conflicting equities between complainant and Scott and wife. Here is a family settlement. Mrs. Scott is a member of that family. Pending the particular estate, Laird shall not intrude. He has no equity that will allow him to disturb the family or any member of it. If there could be a question of equities between them, Scott and wife’s are superior, for Laird claims under a fraudulent purchaser.
    9. Laird’s rights are, that he is entitled to be substituted to the place of Jo. Barbiere, when the particular estate falls in. At that time, whatever the Court would set apart to Barbiere, jr., it will give to Laird, and nothing more. The improvements will then be adjusted in fixing the shares of the parties, and the equities, as they then exist. Until that time, his rights remain in abeyance.
    Laird’s principal grounds for relief are: 1. Estoppel. 2. That he is a subsequent purchaser for value, claiming against a previous voluntary conveyance, and that, therefore the deed of February 12, 1851, is void as to him.
    
      
      First. As to Estoppel. ' Estoppel divides itself into two heads: estoppel by deed, and estoppel in pais.
    
    1. As to estoppel by deed. It can have no application as to Joseph, sr., because the legal title had passed to the trustees under the deeds of trust prior to 1851; and the equitable title had passed by 'the settlement deed. He had nothing' to convey, and has never had since; so that, as to him, the estoppel has had nothing to operate upon. It can have no operation as to Eloise Barbiere; for, admit for the sake of argument, that estoppel by deed can operate against a married woman where her husband joins with her;' where there are covenants of warranty, and where all the formalities of. the statute as to privy examination have been complied with; and upon this question the authorities are conflicting: Doane v. Waleot, 5 Gray, 332; Coleord v. Swan, 7 Mass., 291; and the doctrine seems to be favored by Fletcher v. Coleman, 2 Head, 387; Hamilton v. Zimmerman, 5 Sneed, 39-48. Contra: Jaclcson v. Handerheyden, 17 John., 167; Morrison v. Wilson, 13 Cal., 494. Still it will not be questioned but that the formalities of the statute must be complied with. The priv/ examination to deed of August 20, 1854, is fatally defective. The word “voluntarily” is left out: See Belson & Henderson v. Fice & Gains, 1 Clo., 223. As the deed of a married woman, therefore it could not cause estoppel by deed: Willcs v. Fitzpatrick, 1 Hum., 54; Lowell v. Daniels, 2 Gray, 168, 170.
    But it will be contended that it is to her sole and separate use, and with express power of disposition, and thus becomes operative as to her life estate.
    
      Although she is donee of a power, she is still a married woman. A married woman may execute a power, and in its execution we may admit, for the sake of the argument, she may pass her beneficial interest. But the power is the sole authority to convey; except as she executes the power the deed is inoperative, and she remains burthened with all the disabilities of coverture. It is the power conferred by the settlement deed that takes her out of the disability. If she pursues the power the title passes out of her; if she does not, she stands in the same relation to the property as if no power of disposition had been given, and the doctrine of estoppel has no application. If she pursues the power the title passes out of her, not by virtue of any principle of estoppel, but by virtue of the execution of the power; if she does not, her relationship of married woman, with all its disabilities, remains in full operation. And hence the estoppel can no more apply to her life estate than to the remainder interests. The faulty execution of the power as to the remainder estate, is equally .a faulty execution of the power as to the life estate; for her capacity to convey either, is alone by virtue of the power.
    The Chancellor held the estoppel applicable to the life estate, but not to the remainder.
    I have already attempted to show that the deed to Joseph, jr., was a fraud upon the power and a breach of trust, and that the life estate was inseparably interwoven with trusts in favor of the remainder-men, operating upon the life estate. The power given by tbe deed of settlement by no means contemplated, or tolerated, a severance of the life estate from tbe trusts connected witb it; nor tbe severance of this life estate from tbe remainder interest. Indeed, tbe terms of tbe settlement deed renders ber powerless tp divest herself of it. She may change the property, but not tbe trusts.
    If the doctrine of estoppel can have any operation, it must be estoppel in pais; and that brings me to the second head—
    
      Estoppel in Pais. And ,it is sought to make this applicable both to the mother, Eloise, and the children, Eloise, Sophia, and Madaline.
    It will be claimed that they stood by and saw Joseph, jr., erect valuable and permanent improvements upon the lot, and said nothing. These three girls were at that date of about the ages of sixteen, eleven and eight years of age — innocent children — school girls, perhaps, “with satchel and shining, morning face,” in as blissful ignorance, no doubt, of their own rights as of those of their older brother.
    As to minors, the doctrine is well settled. They must have competent understanding, be fully informed, and be guilty of actual fraud: Barham v. Twrberville, 1 Swan, 437, 441. See particulary p. 441, and Cooley v. Steel, 2 Head, 608. See Hamilton v. ZUmmerman, 5 Sneed, 39, 48.
    Indeed, actual, intentional fraud is at the bottom of this doctrine of estoppel in pais as to everybody. It is either actually proven or presumed to exist from the circumstances of the case: Wash. Real Prop., 455, 467, 2nd Ed.; Lowell v. Daniels, 2 Gray, 118, 170;. Morris v. Wilson, 13 Cal., 494. ■
    Let us test this estoppel in pais doctrine by the facts in this case.
    Joseph, jr., built with a full knowledge of the powers of Mrs. Eloise Barbiere and the trusts imposed on her. If the deed to him was a valid execution of the power, he can hold under it; if not, he had full knowledge of its defects in relation to the settlement deed. He did nothing in ignorance; he knew every fact which his mother, Eloise Barbiere, knew. He built upon the faith of the deed of August 20, 1854 — not upon the faith of any false and fraudulent representations, or indeed of any representations; nor was he at all deceived, or even influenced, by her silence. What (fould she have said but “stop building; I had no power to convey to you.” Yet he knew this as well as she. She could have but pointed him to the deed of -February 12, 1851; but we are bound to presume that he knew as much of this as she did. Indeed the only explanation we can give for her joining in the deed of August 20, 1854, is the deed of February 12, 1851.
    If there were fraud on the part of Mrs.' Eloise Barbiere, it could not be made operative to affect her title.
    In Wilks v. Fitzpatriok, 1 Hum., 58, it is said: “It is insisted she was guilty of fraud in joining her husband in the transfer, and then setting up her equity against it. If this were so, the wife never could be protected in her rights; and all her deeds, while covert, tbougb void at law, would be set up against her on the ground of fraud:” Lowell v. Daniels, 2 Gray.
    But even if estoppel by deed or in pais could be applied as to Eloise Barbiere, it could only be in behalf of a Iona fide purchaser.
    The whole doctrine of estoppel is based upon the idea of perfect good faith on the part of the purchaser, and that he has been innocently misled and deceived: Wash, on Real Prop., vol. 2, p. 454, 2nd Ed.
    It is a monstrous doctrine, that a vendee, participating in a breach of trust by reason of the conveyance, and that, too,, to the injury of parties toward whom he sustains a trust relation, shall plead the doctrine of estoppel against the party with whom he has participated in the breach of trust, and seek to fasten the estoppel, through the party actively guilty of the breach, upon the injured beneficiaries who are his co-tenants.
    The only true application of the doctrine of estop-pel in this case is against Joseph, jr., in relation to his co-tenants — his sisters Eloise, Sophia, and Madaline.
    Having accepted the benefits of the settlement deed, as we are bound to presume he did, and thus becoming their co-tenant, he could take no step in antagonism to their rights.
    The other ground upon which relief is predicated is, that Laird is a subsequent purchaser for value, claiming against a previous voluntary settlement; which, it is claimed, is void, under 27 Eliz. ch. 4; Act of 1801, ch. 25, s. 2; Code, 1760.
    In the first place, the deed of August 20, 1854, from Joseph, sr., and Eloise to Joseph, jr., shows, from the fact that Eloise joins in it, that it was intended to be made under the settlement deed of February 12, 1851, because Eloise Barbiere joins in the deed as a party jointly seized. Unless intended as a conveyance by virtue of settlement deed, there was no reason for a conveyance from her. Dower, in Tennessee, only exists as to the property of which the husband is seized at his death; therefore, she had no interest except under the settlement deed. If intended as a conveyance by virtue of deed February 12, 1851, it was proper that husband should join. The question is unsettled in Tennessee, whether, under such a deed as that of February 12, 1851, the husband should join. So far, therefore, from being antagonistic to the voluntary deed, it was based upon it.
    In the second place, if this be not true, Laird can occupy no higher ground than Joseph, jr. If the previous voluntary settlement is void as to any one, it is as to Joseph, jr., because he is the purchaser from the grantor of the settlement deed. I know of but one case where vendee has a superior right and title to his vendor, that is, innocent purchaser for value without notice; which is a creature of equity, purely defensive in its character; not dependent upon, or in any way connected with any statute.
    Joseph, jr., can not attack the voluntary settlment, because he is a beneficiary under it, and the presumption is he accepted its benefits: See Goss v. Singleton, 2 Head, 67; 3 Hum., 442; 7 Hum., 303; because, he thus became the equitable co-tenant of his brothers and sisters, and sustained a fiduciary relationship toward them because of this co-tenancy; because, the deed of August 20, 1854, is partly for love and affection, and is not therefore properly a conveyance for value; and because, his purchase was not bona fide, the property conveyed being worth $1,200, and the consideration paid $200 — inadequacy so gross as to indicate fraud. Under all the decisions, English and American, upon 27 Eliz., ch. 4, the purchaser for value must be a bona fide purchaser.
    But suppose all these positions are untenable, and that Laird is a bona fide subsequent purchaser for value. The construction of 27 Eliz., ch. 4, by the English decisions: Doe v. Manning, 9 East, 63, that as against a subsequent purchaser for value, with actual notice of the previous voluntary settlement, such settlement is void, is not the American doctrine. On the contrary it is expressly repudiated by the American decisions: Sterry v. Arden, 1 John. Ch. B., 264; Verplank v. Sterry, 12 John. B., 555; Jackson v. Town, 4 Cowen, 603, 604; Rucker v. Ham, 14 Mass., 139; Cathcart v. Robinson, 5 Peters, 280; Clapp v. Letherbee, 18 Pick., 131; 1 Bay. (S. C.) B., 173; Beal v. Warren, 2 Gray, 450, 457; 4 Kent, (3d Ed.) s. 67, p. 463-4; 1 Story Eq., s. 427, et seep, and cases cited in notes; Atherly on Marriage Settlements, 178, 179. In 1 Eonbl. Eq., 269, 270, and Sugden on Vendors, 433, great dissatisfaction with the English doctrine is expressed. See also 1 Cruise Digest, (Greenl. Ed.) title 7, c. 2, s. 7, note; 1 Am. Lead. Cases, (3d Ed.) 78; Salem v. Bennett, 1 Conn.,- 525; Bennett v. Bradford Bank, 11 Mass., 421.
    But this. precise question is directly adjudicated in accordance with these American cases in Hubbs v. Broohwell, 3 Sneed, 575, which settles this question in Tennessee, and expressly recognized in Bedford, Trustee v. Williams, Adm’r, 5 Col., 202-210.
    Now Laird was a purchaser with actual notice.
    1. This is sufficiently apparent from the frame of his amended bill; it is carefully prepared; full in its recitals, and in its comments upon deed of settlement, and nowhere intimates that he was a purchaser without notice. He s says: “ Your orator charges that he is a purchaser of said property for a valuable consideration, and as such entitled to protection of a Court of Equity,” but not that he had no notice.
    2. Eldridge’s deposition places it beyond reasonable doubt. He remembers the fact “that Laird was exceedingly careful as to having the title examined, and a favorable report in reference thereto, before he would give possession of the goods.” He says further: “ I think I examined everything on the Register's books affecting the title;” and supposes — for such was his invariable custom — that he furnished Laird a “written abstract of title, or deraignment of title, and that whatever clouds or whatever infirmity of title of any character he saw or suspected, was, in all probability, noticed in the abstract.” He says, moreover, “there was something about the title that gave me some uneasiness or doubt at the time I examined it,” and “my impression is that that doubt was based upon the language of the deed from Joseph Barbiere, sr., to his wife Eloise.”
    And see the deed of October 5, 1855, from Joseph, jr., to Eldridge for Laird’s benefit, which recites: “And in the event of any litigation arising in connection with the subject-matter of this trust to which said trustee may become a party, said Barbiere and Laird bind themselves to indemnify” said trustee, etc.
    Eldridge was the solicitor employed by Laird, before he would purchase, to make this investigation. Notice to the agent is actual, not constructive, notice to the principal: Myers v. Ross, 3 Head, 62-63; also Union Bank v. Campbell, 4 Hump., 394, cited in this 3 Head case. This will settle the case against Laird upon 27 Eliz., c. 4, and act of 1801, c. 25, s. 2.
    But there is an important question connected with this discussion, although not essential to the decision of this case, which the Court may be willing to consider and to settle now; and that is, what is the true construction of the 27 Eliz., c. 4, as incorporated in our act of 1801, c. 25, s. 2, in that class of cases when the subsequent purchaser for value is a purchaser bona fide, and without actual notice, claiming against a voluntary settlement free from actual fraud ?
    This, it seems to me, should be definitely settled, as transactions of this character are constantly occurring, and because the doctrine in Tennessee, from the cases decided, is not clearly apprehended. Doubts as to proper construction of statute of 1801, (which embodies 27 Eliz., ch. 4,) are suggested in Marshall v. Booker, 1 Yerg., 14; and again so late as Whitlock v. Qrisham, 3 Sneed, 240, it is said to be a “vexed question.” And see Searcy v. Carter, 4 Sneed, 284, that “a Court of Equity will not extend its relief where the property has passed from the covenous and voluntary grantee,” etc., citing 1 Story Eq., s. 434, from which it is a quotation. The principle is a sound one, which is there announced, and is merely that an innocent purchaser from a fraudulent grantee will be protected, etc. Searcy v. Carter, was a case of actual fraud. And in Cains v. Jones, 5 Yerg., some of the later English cases are cited with approbation which announce a doctrine directly in conflict with TIubbs v. JBrodcwell, 3 Sneed, 575.
    
      Cains v. Jones was a case of actual fraud: the conveyance for value was in fact first executed, although last registered, and then the voluntary deed executed, which was first registered. Unquestionably the voluntary deed was made in actual fraud of the conveyance for value; and the date of registration, while it might determine the priority of title, had nothing to do with the actual fraudulent intent, except in that case to furnish additional proof of it. The decision was right, and there was no reason for adopting, or so much as referring to the English cases since the Revolution. The true construction of 27 Eliz., c. 4, and Act 1801, c. 25, s. 2, I take it, res integra in Tennessee.
    The leading English case, Doe v. Manning, 9 East, was decided long after the Revolution — in 1807. Lord Ellenborough’s disapprobation of the doctrine which he feels compelled by the weight of authority at that date to announce is plainly observable.
    In a note to Evelyn v. Templar, 2 Bro. Ch. R., 124, the Reporter shows how the construction of the statute is disapproved and lamented by the English Judges, while they adhere to it. He says: “The construction of the English Courts as at present, (this was long after the Revolution,) has been frequently lamented and censured, as contrary to the words and objects of the statute. * * * The Courts have,
    however, reluctantly considered themseves as bound by the authorities, and have at the same time noticed it as a proper subject for legislative interference.”
    The construction of the 27 Eliz., c. 4, was not settled at the date of our Revolution: Cathoart v. Robinson, 5 Peters, 280; VerplanJc v. 8'terry, 12 John. R., 535. See opinion of Spencer, J., pp. 554, ■ 558.
    When it is remembered that the 27 Eliz., c. 4, says nothing about voluntary conveyances, but only provides for such as are made “for the intent and purpose to defraud and deceive such person as shall purchase the lands,” and when it is remembered that voluntary family settlements are not only recognized but sanctioned and encouraged by our Courts as being in discharge of moral obligation, I respectfully submit that the sensible construction, the obvious purpose of the statute, should be adopted, and the highly artificial, unjust, senseless, and oppressive construction of the English Courts should be repudiated.
    We should follow the earlier adjudications, made recently after the passage of the 27 Eliz., and adopt Lord Mansfield’s construction in Doe v. Rutledge, Cowp., 713. There should be actual mala fides, such as really existed in Cairns v. Jones, 5 Yer. Probably the sound construction would be ' that the mala fides must be as to purchasers, and if alone as to creditors, should not avail purchasers. Such seems to be the cases of Foster v. Walton, 5 Watts, 378; Douglas v. Douglas, 10 Ohio, 162; Satoyer v. Eastwood, 19 Wend, 514; Bank of Alex-dria v. Patton, 1' Eob. (Va.), 499; also, Stevens v. Morse, 47 N. BL, 532.
    
      Beal v. Warren, 2 Gray, 450, 457: That the voluntary conveyance is good, whether the purchaser has or has not notice.
    Deeds of gift are recognized by us, and their registration provided for: 1789, c. 59, s. 2; 1831, c. 90, s. 1.
    
      As to the effect of Begistration. Our statutes give to registration the effect of actual notice to the subsequent purchaser.
    Act 1831, c. 90, s. 1, provides, amongst other instruments, for registration of deeds of gift, by sec. 12, “if not so proved and registered, shall be void as to subsequent creditors, or bona fide purchasers, without notice;” and by sec. —, “said instruments, so registered, shall be notice to all the. world from time of registration:” Code, 2072, 2073. Sec. 2075.: “If unregistered, not good against a bona fide purchaser without notice.”
    The registry acts are intended for the protection of the community from frauds and impositions: MeOul-look’s Lessee v. Udalay, 3 Yer., 346, 347.
    The quit claim deeds from the trustees, Poston and Smith to Laird, could not strengthen his title, because they both recite that the debts secured by the deeds of trust had long since been satisfied. The payment of the debts operated eo instanti to pass the legal title out of the trustees, and into Joseph, sr.: Mwrdoeh v. 
      Johnson, unreported; Carter v. Taylor, 3 Head, 30; and upon the principle of estoppel to pass it at once out of Joseph, sr., and into Eloise, his wife, under and by virtue of the settlement deed, or he stood as a technical repository of the legal title because of relation of husband and wife; for at the date of the payment of the debts, Joseph, sr., had already passed his equitable estate by virtue of the deed of 12th February, 1851. If they were in fact paid before that date, then, of course, the settlement deed was even of greater legal efficacy.
    Nor can Laird claim the improvements erected by Joseph, jr. "Where a party puts improvements under a defective title, with knowledge of the defects, he does it at his peril: Bell v. Bowers, Knoxville, 1867; Maynard, Special J. He can only come into equity on the ground of fraud.
   Nicholson, C. J.,

delivered the opinion of the Court.

On the 12th of February, 1851, Joseph Barbiere conveyed to his wife, Eloise Barbiere, for natural love and affection, and for the better securing a maintenance and support for the said Eloise and their children— viz., Joseph, Eloise, Sophia, and Madeline — a lot in South Memphis, known as “Lot No. 1 in Block No. 34,” to her, the said Eloise, for her sole and separate use and benefit, maintenance and support, and free from debts, liabilities and control of her said husband or any future one, for and during the natural life of tbe said Eloise; and at ber death, to be equally divided in .fee simple between the said children, Joseph, Eloise, Sophia, and Madaline, and their heirs: Provided always, and it is hereby expressly understood and agreed (anything in the preceding conveyance to the contrary notwithstanding), that the said Mrs. Eloise Barbiere may have full power and authority, at any time, to sell and convey the said tract of land, with the appurtenances, in fee simple, and re-invest the proceeds in such other property as she may think best, for her sole and separate use during her life, and at her death to be equally divided amongst said children, as hereinbefore provided for.” This deed was registered March 11th, 1851.

On the 25th of August, 1854, Joseph Barbiere and his wife Eloise, for and in consideration of two hundred dollars, by Joseph Barbiere, jr., paid, and for the further consideration of services rendered to said parties by said Joseph, jr., and for the further consideration of natural love and affection, gave, granted, bargained and sold to said Joseph Barbiere, jr., sixty feet fronting on 'Vance street, off the east end of Lot No. 1, in Block No. 34, aforesaid, with covenants of general warranty. This conveyance was registered on the 4th of September, 1854; but in the certificate of privy .examination of the wife, the word “voluntarily” was omitted.

On the 9th of September, 1854, Joseph Barbiere, jr., conveyed the lot to Win. A. Goodwin, in trust, to secure a note of $1000 due to the Memphis Building and Loan Association.

On the 12th of September, 1854, Joseph Barbiere, jr., conveyed the said lot to L. J. Dupree, in trust, to secure three notes, amounting to $2,400, payable to James D. Goff.

On the 6th of October, 1855, Joseph Barbiere, jr., conveyed said lot to Thos. D: Eldridge, in trust, to secure three notes, amounting to $2,000, payable to Henry Laird.

Joseph Barbiere, jr., failed 'to pay the several debts so secured, and on the 7th of June, 1858, the several trustees proceeded to sell said lot, when the same was purchased by Henry Laird at $1,647, whereupon the trustees, on the 8th of June, 1858, conveyed said lot to said Henry Laird, and the deed therefor was registered on the 24th of January, 1859.

By virtue of this conveyance, Henry Laird claims title to the lot in controversy, and files his bill to have his title relieved of a cloud resting upon it, by reason of a conveyance for said lot, made by Joseph Barbiere, sr., and his wife Eloise, to Eloise Scott, wife of G. W. Scott, dated December 31st, 1864, for the consideration of $2,000, in hand paid by said Eloise Scott, formerly Eloise Barbiere.

It appears from the proof, that when the lot was conveyed to Joseph Barbiere, jr., on the 24th of August, 1854, it was unimproved, and was not probably worth more than one-fourth of the entire lot No. 1, in block No. 34, with the improvements then on it. Immediately after the conveyance, Joseph Barbiere, jr., took possession and commenced building thereon, and in a short time erected valuable improvements, his father and mother and sisters living on the lot No. 1, and being cognizant of the improvements being made, and making no objection thereto. Joseph Bar-biere, jr., was of age in 1852, his sisters all being minors, aged respectively 14, 12 and 8 years, one of whom, Eloise, has since intermarried with defendant G. W. Scott.

Complainant took possession of the lot after his purchase in June, 1858, and continued in possession until the lot was conveyed by Joseph Barbiere, sr., and wife Eloise, to Eloise Scott, on the 31st of December, 1864, when she took possession and placed thereon a tenant.

Joseph Barbiere, sr., and his wife answer on oath: that, it is true the deed recites a valuable consideration of $200, but the deed shows on its face, together with the total inadequacy of the consideration stated, and the other surroundings, that the deed was voluntary; that they made the deed of February 12, 1851, in good faith to Joseph, jr.; that they acquiesced in his claims of ownership, and in the erection of the improvements; that they ignorantly deemed they had a right to convey to him for a home a part of the ground, and the intention was that he might erect a residence thereon and live close to them.

Of the several questions raised in the argument, we will proceed to notice those which we deem material in the determination of the case.

Complainant insists that the deed of February 12, 1851, by Jos. Barbiere, sr., to his wife Eloise, being voluntary, is void as against him, he being a subsequent purchaser for value. He stands upon the’ original title of Jos. Barbiere, sr., and above the deed made to his -Wife in February, 1851.

It is maintained for complainant, that by the construction of the 27 Elizabeth, c. 4, in England, prior to the American Revolution of 1776, and by the adoption of that statute in North Carolina, and its construction in that State, and by its construction in our own State, it has become settled as a rule of law and of property, that a voluntary conveyance of land is void as against a subsequent purchaser for value, with or without notice. We recognize the soundness of the principle, that a rule of property may be so firmly established by a long train of iudicial decisions, that it can only be altered by legislative ■ enactment. But to give this degree of force to judicial legislation, it is essential that the acquiescence in the rule should have been so long and so uniformly sanctioned and recognized, that its correctness has ceased to be questioned and is implicitly followed as established authority.

The first section of the 27 Elizabeth, c. 4, recites by way of preamble, that forasmuch as the Queen’s most excellent majesty and divers of her good and loving subjects, after conveyances obtained or to be-obtained, and purchases made or to be made of lands, tenements, etc., for money or other good considerations, may have, incur and receive great loss and prejudice, by reason of fraudulent and covinous conveyances, etc., heretofore made or hereafter to be made, of, in, or out of lands, etc., so purchased or to be purchased, which said gifts, grants, etc., were or hereafter shall be meant or intended by the parties that so make the same, to be fraudulent and covinous, of purpose and intent to deceive such as have purchased or shall purchase the same, etc.

By sec. 2, for remedy of which inconveniences, and for avoiding of such fraudulent, feigned and covinous conveyances, etc., it is ordained and enacted, that every conveyance, grant, etc., of any lands, tenements, etc., had or made at any time heretofore, or at any time hereafter to be made, for the intent and of purpose to defraud and deceive such person or persons as have purchased and' shall purchase in fee simple, fee tail, etc., the same lands, tenements, etc., shall be deemed and taken ouly as against that person or persons, etc., his and their heirs, etc., to be utterly void, frustrate and of none effect.

By sec. 3, it is provided that this act shall not extend or be construed to impeach, defeat, make void or frustrate any conveyance, etc., of any lands, tenements, etc., had or made upon or for good consideration and bona fide to any person or persons, etc.

It can not be denied that in England, for many years, it has been firmly established that under this statute a voluntary conveyance, without any valuable consideration, is fraudulent and void against a purchaser for a valuable consideration. In other words, under' the established English construction of the statute, the law presumes fraud from the want of a valuable consideration, and such presumption admits of no contradiction. Or, as Chancellor Kent says: “It is settled, in England, that a voluntary conveyance, tbougb for a meritorious purpose, will be deemed to bave been made with fraudulent views, and set aside in favor of a subsequent purchaser for a valuable consideration, even though he had notice of the prior deed:” 4 Kent, 463.

But the question now to be determined is, was this the settled construction of the statute, at the date of our separation from Great Britain, in 1776? If so, the construction of the statute having become a rule of property, it was adopted, together with the statute itself, a part of our laws after we became an independent people.

This question arose in the case of Cathcart v. Robinson, 5 Peters, 264, 'in which Chief Justice Marshall said: “This being a voluntary conveyance, is, at this day (1831) held by the Courts of England to be absolutely void, under the statute of 27th Elizabeth, against a subsequent purchaser, even although he purchased with notice:” Citing 1 Mad., c. 271; 18 Ves., 110; 2 Taunt., 523. He adds: “At the commencement of the American Bevolution, the construction of the statute of 27th Elizabeth seems not. to have been settled. The leaning of the Courts toward the opinion that every voluntary settlement would be deemed void, as to a subsequent purchaser, was very strong. A few cases are to be found in which such conveyance has been sustained. * * *

“There is some contrariety and some ambiguity in the old cases on the subject; but this Court conceives that the modern decisions, establishing the absolute conclusiveness of a subsequent sale, to fix fraud on a family settlement, made without valuable consideration— fraud not to be repelled by any circumstances whatever — go beyond the construction which prevailed at the American Revolution, and ought not to be followed.

“The universally received doctrine of that day unquestionably went as far as this. A subsequent sale, without notice, by a person who had made a settlement, not on valuable consideration, was presumptive evidence of fraud, which threw on those claiming under such settlement the burden of proving that it was made bona fide.”

Chancellor Kent, at page 464, vol. 4, refers approvingly to the decision in Cathcart v. Robinson, and in a note it is said: “ The better American doctrine seems now to be, that voluntary conveyances of land, bona fide made, and not originally fraudulent, are valid against subsequent purchasers:" Citing 4 Cowen, 603; 14 Mass., 139; 5 Peters, R., 280.

That the construction of 27 Elizabeth, which declares voluntary settlements, however meritorious, abso-solutely void against a subsequent purchaser for value, with or without notice, was not acquiesced in even in England, as finally settled at the date of the American Revolution, we think is conclusively shown by reference to the case of Doe v. Manning, 9 East, 59, determined on the 25th of November, 1807. In that case Lord Ellenborough reviewed all the cases involving the construction of the statute, showing that down to that date, the controversy had continued between those who held on the one side, that voluntary settlement was only presumptively fraudulent, and those who held that it was conclusively fraudulent against subsequent purchasers for value. After citing a number of cases sustaining the first view, he said: “Had these cases not been opposed by many others of great weight and authority, there would have been but little doubt in our minds as to this construction being the true one.” He then cites the cases sustaining the other view, and concludes: “Thus stand the authorities on both sides of the question, and the weight, number, and uniformity of those which establish the point contended for on behalf of the plaintiff, (that voluntary settlements were absolutely void) very much preponderate.”

Following the preponderance of authorities, Lord Ellenborough reluctantly yielded his assent to the rule, that a voluntary settlement was absolutely fraudulent and void against a subsequent purchaser for value, with or without notice, but concluded by saying: “And we can not but say, as at present advised, and considering the construction put upon the statute, that it would have been better if the statute had avoided conveyances, only against purchasers for a valuable consideration without notice of the prior conveyance.”

This decision was made in 1807, and we think it may be safely regarded as having finally settled the English construction of 27 Elizabeth, and fully sustains the conclusion of Chief Justice Marshall, that the question was unsettled at the date of the American Revolution.

The construction of the 13th and 27th Elizabeth came before the Court of Errors of New York in 1826, in the case of Seward v. Jackson, 8 Cow., 406 to 456. The Supreme Court had held that a voluntary conveyance was conclusively fraudulent as against subsequent creditors. The Court of Errors, 24 to 1, reversed the decision below. A leading question in the case was, whether the English decisions were so firmly established prior to 1775, as to be absolutely binding as precedents. The English cases were thoroughly examined and reviewed, together with many American cases, and the conclusion was thus stated: “Do the English decisions, then, previous to 19th of April, 1775, settle the question in favor of the conclusive presumption, with so _ much clearness and certainty, and this Court is bound by them, as by common law authority, in construing an act of the Legislature passed in 1787? In my judgment they do not; but there is, on the other side of the question, great weight of authority, supported by the obvious meaning and spirit of the act.”

We conclude, therefore, that when we separated from Great Britain, and brought with us the 27th Elizabeth as a part of our inheritance, we did not receive it with that fixed and settled construction which has since obtained so firmly in the English Courts as to make that construction a rule of property in that country. The only evidence furnished us that the English construction of the statute was adopted in North Carolina, is furnised in the case of Freman v. Eatman, 3 Ired. Eq., 81, decided in 1843. In that case Judge Ruffin says, that “whatever doubt may be entertained whether the purposes or language of the act of 27th Elizabeth, c. 4, authorized the construction, we conceive, that before our act of 1840, c. 28, it was settled so firmly as not to be shaken by any authority but that of the Legislature, that a voluntary conveyance, though for the meritorious purpose of providing for a wife and children, is, by that statute, made fraudulent and void against a subsequent purchaser for a fair price, though with notice of the prior conveyance.” He cites in support of his opinion, Gooch’s case, 5 Rep., 60; 1 New Rep., 332; 9 East, 59, and 2 Taunt., 69. We have already shown, by reference to the case of 9 East., 59, cited by him, which was decided in Í807, that it was not until that case was decided by Lord Ellenborough that the construction of 27th Elizabeth was finally settled in England. We have also shown by the authority of Chief Justice Marshall, in Cathcart v. Robinson, that at the time of the American Revolution, the construction of the statute was unsettled. We therefore infer, that when Judge Ruffin decided that the construction of • the statute was too firmly established to be then disturbed, he meant that it was settled by the English decisions, made both before and after the Revolution. As to the weight to be conceded by us to the English decisions as to the construction of the statute made subsequent to the Revolution, Chief Justice Marshall said: “But however we may respect subsequent decisions, and certainly they are entitled to great respect, we do not admit their absolute authority. If the English Courts vary their construction of a statute which is common to the two countries, we do not hold ourselves bound to fluctuate with them.” "While, therefore, we have the highest respect for the opinion of Judge Ruffin, we can not accept it as furnishing conclusive evidence that the English construction of the 27th Elizabeth had become a rule of property in North Carolina, prior to the time when Tennessee was organized into a State, in 1796, though it may prove that such was the settled construction in North Carolina in 1840, when the Legislature interposed and repealed it. We concede, that upon our organization as a State, we inherited the 27th Elizabeth as one of her laws, but not with the English construction of it as part of that statute.

Nor can we yield to the decision in the case of Caines v. Jones, 5 Yer., 249, decided in 1833, the force claimed for it by the counsel for complainant. It is true that Judge Catron recognized fully the English construction of the 27th Elizabeth, and relies upon some of the English cases already referred to. But he makes no allusion to our act of 1801, which super-ceded the 27th Elizabeth, and treats the latter statute as still in force in Tennessee, probably on the assumption that there was no difference between the two statutes, and, therefore, that the construction of each was the same. While we entertain the highest respect for the opinion of Judge Catron, and concede that his conclusion is supported by the English authorities, yet we can not concede to it more than the weight due to the decision of an eminent Judge. We can not accept it as conclusive evidence that the construction of 27th Elizabeth, which he adopts, was so firmly established in Tennessee as to constitute a rule of property, to be altered only by the Legislature.

"We-have said tbat tbe 27th Elizabeth was super-ceded by our act of 1801. Upon examination, it will be found that the act of 1801 was intended as a substitute for the two British statutes — the 13th and 27th Elizabeth — the former having reference to fraudulent conveyances of personal property as well as lands, and designed to protect creditors against such conveyances; the latter confined to lands, tenements, etc., and designed to protect subsequent purchasers for value against such fraudulent conveyances. The provisions of the two English statutes are combined into one in our act of 1801; and it is upon the construction of this act, and not of the English statute of 27th Elizabeth, that the question before us must be determined.

The first section of the act of 1801, c. 25, specifies the contracts that must be in writing.

Sec. 2. Every gift, grant, conveyance of lands, tenements, hereditaments, goods or chattels, or of any rent, common or profit, out of the same, by writing or otherwise, and every bond, suit, judgment or execution, had or made and contrived of malice, fraud, covin, collusion or guile, to the intent or purpose to delay, hinder or defraud 'creditors of their just and lawful actions, suits, debts, accounts, damages, penalties or forfeitures; or to defraud or deceive those who shall purchase the same lánds, tenements or hereditaments, or any rent, profit or commodity out of them, shall be henceforth deemed and taken only as against the person, persons, his, her, or their heirs, successors, executors, administrators or assigns, and every of them whose debts, suits, demands, estates, interests, by. such guileful and eovinous devices and practices aforesaid, shall or might be in any way disturbed, hindered, delayed or defrauded, to be clearly and utterly void; any pretence, color, feigned consideration, expressing of use, or any other matter or thing to the contrary notwithstanding.”

A comparison of the foregoing portion of sec. 2 of our act of 1801, with the English statutes aforesaid, will show that in these provisions are combined the essential provisions of s. 2, c. 5, of 13th Elizabeth, and of s. 2, c. 4, of 27th Elizabeth. The first provision is to secure creditors against fraudulent conveyances and devices; and the second is to protect purchasers. The first includes lands and chattels ; the second is confined to lands, tenements, etc.

The section then proceeds to direct how conveyances, not on consideration deemed valuable, are to be proven and recorded or registered, to make them valid against subsequent creditors or purchasers, viz.: “And, moreover, if a conveyance be of goods or chattels, and be not on consideration deemed valuable in law, it shall be taken to be fraudulent within this act, unless the same be by will duly proved and recorded, or by deed in writing acknowledged or proved: if the same deed include land also in such manner as conveyances of land are by law directed to be proven or acknowledged.”

This provision, which is not found in the English statutes, was before this Court for construction in the ease of Booker v. Marshall, 1 Yerg., 13. It was the case of a voluntary conveyance of a slave, and the • question was, whether the voluntary conveyance was void as against a subsequent purchaser' for value. Judge Emmerson held that, “ contrary to the construction of the 27th Elizabeth, under which it matters not though the subsequent purchaser have notice, our law deems notice to the subsequent purchaser a fact, which cuts up by the roots the allegation of fraud on the subsequent purchaser as to personalty.” But he expressly waived the question, whether, in case of a voluntary conveyance of realty, notice would operate to postpone a subsequent purchaser, if there was no intentional fraud in the voluntary conveyance. But it seems to us that when he held that the foregoing provision of the act of 1801 protected a voluntary conveyance of personalty against the presumption of fraud by reason of the notice furnished to the purchaser by registration of the conveyance, he virtually settled the question which he waived.

The provision includes not only voluntary conveyances of personalty, but also lands in the same conveyances, and in such cases the registration of voluntary conveyances of realty and personalty in the same deeds would be as much protected by the notice of registration as if the deeds included personalty only. Can it be supposed that the Legislature meant that voluntary deeds of personalty, or of personalty and realty in the same deed, should be protected by registration against a subsequent purchaser, but that a voluntary deed of realty only would have no. such protection by registration and notice? It is more reasonable to suppose that tbe Legislature intended to provide that voluntary conveyances, whether of realty or personalty, should not be presumptively fraudulent, either as to creditors or purchasers, if such conveyances were acknowledged or proven and registered according to law, leaving the question of actual fraud in the execution of the conveyances an open question, to be determined by the facts.

But the language of the 3d section of the act of 1801 is too plain and unambiguous to admit of any doubt as to its meaning: “This act shall not extend to any estate or interest in any lands, goods or chattels, etc., which shall be upon good consideration, and bona fide lawfully conveyed or assured to any person or persons, bodies politic or corporate, or to any person lending his own property to any person or persons without an intention of fraud.” This section is applicable expressly to conveyances made on good consideration; and they are not to give way to subsequent purchasers for valuable consideration, if the voluntary conveyances were made bona fide and lawfully conveyed or assured. The words “lawfully conveyed or assured” are amendments of the 3d sec. of the 27th Elizabeth, and refer to the mode of proving and recording conveyances provided for in sec. 2, to make them valid against subsequent purchasers.

This construction of the act of 1801 is sustained by the decision of this Court in the case of Hubbs v. Brookwell, 3 Sneed, 574. Judge Harris, after quoting the first clause of sec. 2 of the act of 1801, c. 25, says: “By tbis statute such conveyances (those actually fraudulent) are clearly and utterly void,” as against creditors and bona fide innocent purchasers without notice, who are “ deceived thereby; ” but they are valid as against the fraudulent vendors, “their heirs, successors, executors, administrators or assigns,” who had notice, and of course were not “deceived thereby.”

But we think our registration laws are to be looked to in determining the- true construction of the act of 1801. The object of these laws is to prevent frauds, by giving notice to creditors and subsequent purchasers. To this end the mode of proving and registering all kinds of conveyances is specifically provided for; and the legal effect of registration 4s defined in s. 6 of the act of 1831, carried into the Code in art. 9, s. 2071, et seq. Conveyances so registered are notice to all the world, and take effect from the date of registration. The instrument first registered has preference, unless the party claiming under the subsequent instrument had full notice of the previous instrument.

The law provides for the registration of voluntary conveyances of lands, and when registered, they operate as a notice to all subsequent purchasers. After registration of a voluntary' deed for land, a subsequent purchaser for value can not claim to be an innocent purchaser without notice. But if the voluntary conveyance was intended to defraud a subsequent purchaser, the notice by registration will not affect his right to attack the voluntary conveyance for actual fraud.

It follows, that a voluntary conveyance, made with tbe intent to defraud a subsequent purchaser for value, is void as against him with or without registration, and with or without notice. A voluntary conveyance, not proven and registered, will be held as fraudulent against a subsequent purchaser, unless such subsequent purchaser had actual notice of the prior conveyance. If a voluntary conveyance be made without fraud, and is registered, it will prevail against a subsequent purchaser, whether such purchaser had actual notice or not of the prior conveyance.

The act of 1801 not only superseded the 27th Elizabeth, but it contains amendments and additions thereto inconsistent with the English construction of that statute. Whatever respect was due to the English statute and the construction thereof in English Courts, prior to the passage of our act in 1801, the statute itself, as well as the English construction thereof, ceased from that date to be authority in Tennessee.

Applying these principles to the deed of Joseph Barbiere, sr., to his wife Eloise, on the 12th of February, 1851, we hold that as the same was duly proven and registered, and as we regard it, in view of the surrounding circumstances, as a proper settlement on his wife and children, made, as far we can see, without any fraudulent intent, it is to be regarded as a valid convéyance in trust for the benefit of his wife and children.

The next question is, what were the interests taken under the deed by the wife and children? In stating the purpose of the conveyance the grantor says: “It was for the better securing a maintenance and support for the said Eloise and the children, to wit: Joseph, Eloise, Sophia and Madeline.” For this purpose he conveys the legal title to his wife Eloise, “for her sole and separate use and benefit, maintenance and support, and free from debts, liabilities, and control of her said husband or any future one, for and during the natural life of the said Eloise, and at her death to be equally divided in fee simple between the said children, Joseph, Eloise, Sophia and Madeline.” The wife took the legal estate as trustee for the support and maintenance of herself and the children during her life, with remainder to the children specified at her death. The children took vested interests in the remainder, which they held as tenants in common.

The proviso then defines the powers of the trustee: Provided, the said Mrs. Eloise Barbiere may have full power and authority, at any time, to sell and convey the said tract of land, and re-invest the proceeds in such other property as she may think best, for her sole and separate use during her life, and at her death, to be equally divided amongst said children, as hereinbefore provided for.” She had the discretion to sell or not; but if she chose to exercise the discretion, she could only do so by selling and re-investing the proceeds in other property. Two limitations were imposed upon the exercise of her powers. It could only be exercised by a sale. A sale ex vi termini means a conveyance for a fair consideration. Next she was restricted as to the purpose of the sale: it must be to obtain proceeds for re-investment in other property. She had no power to dispose of any of the lot except by sale, and for no other purpose but for the purpose of re-investment; and the property so received by investment, to be held subject to the same uses as the original lot, and at her death, to bé divided among the children.

Upon this construction of the deed of February 12th, 1851, the conveyance made by Joseph Barbiere and Eloise to Joseph Barbiere, jr., on the 25th of August, 1854, was an invalid and defective execution of the powers vested in her. The conveyance purports to be made for three distinct considerations — $200 in money — past services — and love and affection. It was partly a sale and partly a voluntary conveyance. The consideration of the sale was in part for a precedent liability resting oh past services. This shows that the sale was not made for the purpose of reinvesting the proceeds. The power was to sell, and not to give. As an exercise of her powers, therefore, the conveyance for love and affection was invalid. It follows, that Joseph Barbiere, jr., obtained no title to the lot by the conveyance, regarding it simply as an exercise of the trustee’s powers under the deed of February 12, 1851.

But it is argued, for complainant, that Mrs. Bar-biere took a life estate under the deed of February 12, 1851, which passed by the deed of August 25, 1854, to Joseph Barbiere, jr. If the life estate which she acquired and owned was an ordinary life estate of a married woman, not coupled with a trust for the benefit of her children as well as herself, it ' would follow, that her conveyance of the fee simple would carry whatever interest she had, provided the conveyance was acknowledged and registered in pursuance of the statute in such case provided. In the certificate of acknowledgment of the deed by Mrs. Barbiere, the word voluntarily ” is omitted. It is not easy to discover that the word voluntarily ” has a distinct and different meaning from the words “freely, without compulsion, constraint or coercion, by her husband.” And yet the Legislature has required all these words to be used, in order to give validity to the conveyance. ¥e have no right to dispense with any one of the requirements prescribed by the Legislature to pass the title of a married woman, although it might appear to us that such requirement was wanting in substance: Henderson v. Rice, 1 Col., 224.

Rut outside of this objection to the deed, we are of opinion that the only interest which Mrs. Barbiere took, under the deed of February 12, 1851, was one that she could convey in no other way than that prescribed. in the deed. Her power of disposition was defined in and controlled by the instrument which communicated the title, and under the well-settled doctrine of this Court, she could divest herself of that interest in no other mode than that pointed out in the deed: Morgan v. Elam, 4 Yerg., 447; Marshall v. Stephens, 8 Hum., 159.

It follows that Joseph Barbiere, jr., took no title whatever by virtue of the deed of August 25, 1854. But he was the owner of a remainder interest of one-fourth of the entire lot, which' was vested in him as a tenant in common with his three sisters, subject to tbe life estate of tbeir mother. He had a right to sell or mortgage this undivided interest, and the vendee or mortgagee would become a tenant in common with the three sisters, subject to the life estate of the mother.

By reference to the deeds of trust made by Joseph Barbiere, jr., to Goodwin and others, it appears that he conveyed specifically the portion of lot No.- 1, in block No. 34, described in the deed of Joseph Bar-biere, sr., and wife, of August 25, 1854. He does not convey his undivided interest in the' entire lot, but he assumes that he is owner of the portion described by metes and bounds, and conveys that much specifically. In strictness, the purchasers from Joseph Barbiere would take, under the deeds of trust, none but Joseph Bar-biere’s undivided one-fourth of' the portion of the lot so specifically conveyed. But we are to carry out the intention of the parties, when that can be fairly ascertained; and in looking for this, we are satisfied that the arrangement between Mrs. Barbiere and Joseph Barbiere, jr., attempted to be consummated in the deed of August 25, 1854, was that Joseph Barbiere, jr., should have the lot described in said deed, as his one-fourth portion of the entire lot. He so took possession, and erected improvements on it as his portion of the entire property; and his purpose and intention in his conveyance to Goodwin and others, was to pass to them his entire interest in the whole property, erroneously assuming that his interest had been legally allotted by his mother’s deed of August 25, 1854. It follows, that when the lot was sold by the trustees and purchased by complainant, although he got a deed to the specific portion described in the deeds, he bought that portion as the entire interest of Joseph Barbiere, jr., in the whole property, and he thereby became a tenant in common with the three daughters, and was invested with all the title which Joseph Bar^ biere, jr., had in the entire lot. "When the life estate shall fall in, and the property become subject to partition, complainant will be entitled to the one-fourth share of Joseph Barbiere, jr. . Of course, in the proceedings for partition, the fixed rules for securing equality in the division, by taking into view the. questions of improvements and rents, and the rule governing cases where improvements have been made under an honest belief of title, will be adopted. But these are questions which would be prematurely considered now, except to the extent that they are now properly in issue. As we are satisfied that Joseph Barbiere, jr., took possession under an honest belief that he had acquired a good title, and under that belief made valuable improvements, all of which was known to and acquiesced in by all the other members of the family, and as the portion taken possession of and improved by Joseph, jr., was an anticipation of his rights as a remainder man made in a defective attempt to execute a power, and with the assent and approval of the tenant for life, we are of opinion that complainant, as his assignee, is entitled to the continued possession of the property, until the life estate shall fall in. At that time the adjustment of the equities among the several tenants in common will properly arise, when partition shall be made; but at present, we can only determine that complainant stands in the shoes of Joseph Bar-biere, jr., with all his equities, as to one-fourth of the entire lot, and that for the reasons stated, he is entitled to the possession of the premises. These are the only-matters which are legitimately before us at present.

As to the deed of Joseph Barbiere, sr., and his wife to G. "W. Scott and wife in 1864, it is only necessary to remark that it was a nullity, for the same reason that the deed of Feb. 12, 1851, was invalid.

The decree below is affirmed with such modifications as here indicated, and the cause remanded for further proceedings. The costs of this Court will be equally divided between complainant and defendants; the costs below will stand as adjudged below.  