
    James Greenleaf, Appellant, vs. Nicholas L. Queen, and Eleanor his wife, heirs, and Richard Wallack, administrator, of Washington Boyd, deceased, Appellees.
    Where, by the terms of a deed, conveying' real estate in trust, lo he sold for the benefit of the creditor of .the. grantor, the trustee is directed to sell the property conveyed, by public auction — the trustee was bound to con-, form tcT this mode of sale. This was the test of value, which the grantor thought proper to require ; and it was not competent to the trustee to establish any other; although, by doing so, he might, in reality, promote the interests of those for whom he acted. 1145}
    When property conveyed in trust, to be sold at public auction, had been sold by private contract, and the property was afterwards offered for sale, in the manner prescribed by the deed of trust, for the purpose of making a title to the private purchaser; at which time, more was bid for ' the same, than the amount for which it liad been privately contracted to be sold ; the purchaser, by private contract, to whom possession was delivered, at the price agreed on, cannot allege that the sale was void; since, whatever may be the liability of the cesluy que trust, to those interested in the proceeds of the sale, for the amount offered at the auction fit is not an objection, on the part of the purchaser, to release him from his contract. {146}
    Where the vendee of real estate, had purchased it, subject to the dower of the widow — of which dower, he might have been informed, if he had used proper diligence, a Court of Equity will not interfere, to release the vendee : but will leave him to such legal remedy, as he may be entitled to, in case his title should, at any future time, be disturbed. {147}
    
    'Where a bill had been filed against a trustee, of real estate, and, after his death, administration had been granted to A; who, on the petition of creditors, interested in the trust, was also appointed by the Court, the substituted trustee; and the Court went on to decree, that A, as trustee, should execute certain conveyances ; the decree was held to be'inyalid; the course of proceeding, being rather to make the decree against A, in the character of administrator, because he claimed, as administrator, under a title derived from the original trustee, and was the person designated by law, to represent him ; or that a supplemental bill, in the nature of a bill of revivor, should have been filed against the substituted trustee ; in which all the proceedings should have been stated, and he required to answer the charges contained in the original and supplemental bill. {148}
    A decree of a Court of Chancery, is erroneous, which, after ordering certain acts to be done, to enable a party to execute certain duties assigned to him, dismisses the bill, as it puts the cause out of Court, and renders the decree ineffectual: and it is no answer to this objection, that it appears by tlie record, in the case, that the acts ordered to be done, have been performed; since the error is in the decree itself, and not in its execution. {148}
    A bill may be dismissed, where the plaintiff, when called upon to make proper parties, refuses, or is guilty of unreasonable delay, in doing so; but this must be done, on demurrer, plea, or answer, pointing out the person or persons, whom, .the defendant insists, ought to be made parties-. {149}
    
      When a debtor had conveyed to a trustee, real estate, to be sold for the bo-, nefit of creditors, and the trustee dying before the conveyance of the property to a purchaser, another trustee was appointed by the Court, upon the application of the creditors, to execute the trust; in a proceeding-, relative to the execution of the trust, and the conveyance of the estate, it is necessary that the heirs at law, of the first trustee, shall be parties to the same; as the legal title to the estate did not pass to the substituted trustee, by the appointment, but remained in the legal heirs. {149}
    APPEAL from, the Circuit Court of the county of Washington; the appellant having been complainant, in a bill in equity, filed 31st December 1819, in the Court below, against Washington Boyd, trustee of Charles Minifie.
    The objects of the bill, were to make void a contract made by the appellant, for the purchase of certain lots of ground, in the city of Washington, being the estate held in trust, for the creditors of Charles Minifie — that certain collateral securities, delivered by the appellant, with his-note for 3,815 dollars, being for -the purchase money of the lots of the trustee, should be returned; and that the note should be cancelled and surrendered — that'a release should be executed, of the judgment at law obtained by the trustee, on the note, and for a perpetual injunction and general-relief, See.
    Upon filing this bill, an injunction was granted, until further order of the Court; and, after various proceedings, the following decree was made: — -
    Greenleaf vs. ' Washington.Boyd, and others.' 1 In Chancery, April Term, 1824.
    “It is ordered by the Court, in this cause, that the trustee appointed by the order of January 21st 1823, make and execute a good and sufficient deed to James Greenleaf, for the property sold to him by the former trustee, Washington Boyd, according to the terms of that sale; to be approved by one of the judges of this Court, and filed with the clerk, tQ be delivered to the said Greenleaf, upon the payment of the purchase money; and that hp also obtain and file with the clerk, a sufficient deed, of -release, from Zachariah Walker, to be approved of by one of the judges of this Court, to the said James Greenleaf, releasing all title and claim to any and every part of the lots and property of the said Charles Minifie, sold by Washington Boyd, as trustee, or mentioned in the aforesaid deed of the trustee, Richard Wallack, to .James Greenleafj and that, upon the said deed, and the said deeds of release being executed, signed, approved, and filed, as aforesaid,, that then the injunction be,dissolved, and the trustee authorized to proceed in levying and collecting the amount of the judgment for the purchase money, as mentioned in said bill.' And the original bill, and bills of revivor, having been set down for hearing, upon the bills, answers, and exhibits,' and all the proceedings in the cause — it is, by the Court, on this 15th of December 1824, decreed and ordered, that the said bill be dismissed with costs.
    “ And it is hereby further ordered and decreed, that, before proceeding in collecting said purchase money, a good/ and sufficient bond shall be executed, in the penalty of 500 dollars, by any one or more of the creditors, with security, to be approved of by one of the Judges of this Court, conditioned to indemnify the said Greenleaf, his heirs and Assigns, from all claim and demand of Francis Jameson, his heirs and assigns, to any part of the lots or property mentioned in the deed of the said Wallack, to said Greenleaf; which may have been purchased by the said Jameson, at the sale of the said Boyd, and filed with the clerk of the said Court.” '
    By order, William Brent, Clerk.
    
    15th December 1824.
    From this decree, the complainant appealed.
    The opinion of the Court, delivered by Mr. Justice Washington, fully states all the matter of the case.
    The case was argued by Mr. Jones, for the appellant; and by Mr. Key, for the appellees.
    Mr. Jones, for the appellant—
    1. The title of Charles Minifie, was never affected by the-sale of Boyd to Mr. Greenleaf. The authority to sell, was a special one, and the terms not having been complied with — as the sale was private, and not public. Minifie, or his heirs, or his creditors, may proceed against the trustee — no time precluding the same. The case of Daniels vs. Adams. Ambler, 191. 1 Brulg. Index, 41.
    A private sale was set aside, although more was obtained by the sale, than by a public sale; it being against the authority of the'trustee. The Court cannot vary the terms of a trust. 1 Anstruthi- 80. 4 Brown’s Chancery Cases, 479.
    
    2. Mr. Greenleaf had no notice of these objections to the title, until a few days before the filing of the bill; and it w-as then too late for this proceeding. 16 Vez. 9.79..
    
    The title could not be completed, without the consent of Minifie and his wife; and no steps were taken, to obtain this— nor were the measures adopted, in reference to the titles acquired by Jameson, Prout, and Walker, who purchased some of the lots at the public sale, effective. The purchaser would still be obliged to go into chancery, to complete his title to some of these lots so purchased. Nor has a title.' been made to him by the heir of Boyd — if Mr.' Wallack, the substituted trustee, coulcl convey her title, it could not be by virtue of the decree stated in the case, as- Mr. Greenleaf was not a party to the proceeding-.
    .The Court will not permit an executory contract, for land, to be'carried into specific execution, until the seller can give a complete title. 4 Vez. 97. 2 Vez. jr. 100. 2 Coxe, 294. 5 Vez. 147. 16 Ibid. 272.
    As to taking possession of property, being an acceptance of title, Sugden on Vendors, 9.
    The sale made to Greenleaf, was a fraud on the public; and no title to the purchase money could be derived under it. A confirmation of the title held by Mr. Greenleaf, by the legal heiWof Boyd, and by the creditors of Minifie, was necessary; and ft was not the duty of the purchaser, to seek out the heir. He had. called upon Boyd, who had the trust, to do what was pr.oper.
    Tftif e was no ground to dismiss the bill, for want of proper ‘parties — this should have been pleaded; this is never done, unless in a case where no decree can be made, without affecting those- who are not before the Court.
    Mr. Key, for the appellees. — '
    This is a case, where a purchase was made, when property was high, which has since fallen; and the purchaser, therefore, desires to relieve himself from the bargain. The. terms of the trust were complied with, by the trustee — a public sale was made of the property — Greenleaf took possession, knowing all the facts; and, not until after judgment against him, for the purchase money, did he ask for a specific, performance, and an injunction as to notice. Cited, 2 John. Chanc. Cases, 197.-
    -The purchaser has not done what he ought to -have done, to obtain a title. He should have filed his bill against-all the persons interested — Minifie and the creditors; but the bill was against. Boyd gl'one; and this authorised .the conclusion, that the aid of Boyd only was wanting.
    The case is one of a bona fide and regular sale, by the trustee — possession taken by the purchaser — execution of. his contract, with full knowledge of~all the circumstances, by the delivery of his promissory note, for the purchase money; and, afterwards, by proceedings without proper párties, and altogether irregular, an attempt by the purchaser to; defeat the chums of the creditors of the césíuy que trust.
    
   Mr.,‘Justice .Washington

delivered- the opinion of the Courts—

• This cause comes from the Circuit Court of the District of Columbia, for the county of Washington. The appellant filed bis bill in that Court, against Washington Boyd; setting forth, that on the 19t'i of March 1817, the said Boyd, as trustee under a deed of Charles Minilie to him, entered into a contract tvitb the plaintiff, for the sale of sundry lots in the city of Washington,'at the price of 83,500, payable in 6, 12 and 18 months; for which, including the interest, and amounting in the whole to 5,815 dollars, he. then gave his note to Boyd, who acknowledged the receipt thereof by an instrument under his hand; and thereby agreed, that on the payment of the note, he would convey to the plaintiff the said lots, which had been previously sold at public auction, two of them to Elliot, as agent for the plaintiff', and the others to Francis Jameson, ■‘William Prout, and Z; Walker. Tliat, although the title, to these lots which had been sold to Jameson, Prout, and Walker, had not been released from their claims, the defendant, Boyd, had nevertheless recovered a judgment against the plaintiff for the amount of his note before mentioned, upon which he threatened to sue out an execution. The prayer of this bill was for an injunction, and a conveyance of the lots with a clear title.

The plaintiff afterwards Filed an amended bill setting forth the original negotiation's between the plaintiff’ and Boyd, in March 1816, for the purchase of the above lots, which resulted in a contract, by which the plaintiff was to be considered as the purchaser of them, at the price of 3,500 dollars, payable with interest, in 6, 12 and 18 months. That the defendant had nevertheless thought proper to expose the said lots to sale at public auction, some time in April 1816, and had caused Elliot, the plaintiff’s agent, to be set down as the. purchaser of two of the lots only, at the priceof 3,500 dollars, although neither Elliot nor the plaintiff was present; and that the remaining seven lots were struck oft', three of them to Jameson at 159 dollars,, one to Prout at 45 dollars 15 cents, and the remaining three to Walker, at 264 dollars 90 cents, making in the. whole, the sum, of 4,019 dollars 5 cents.

That matters remained in this situation until the 19th of March 1817, when the written contract mentioned iivthe original bill was entered into.

The bill then sets forth the judgment obtained by Boyd against the plaintiff, upon his note for the. purchase money of the lots, and the deposit by the latter with the former oí' certain securities as collateral security for the debt, in consideration of a suspension of the execution until some úme in December 1819, It farther charges, that the plaintiff was ignorant of the tille and authority of tlm defendant to dispose of the above property, until within a few days preceding the filing of this amended bill; when, upon examining the land records of the county, he found the deed of trust from Charles Minific and one James EneJI and Farrell, to the said- Boyd, conveying' the above lots to him in trust,- to dispose of the same at public sale, on 6,' 12 and' 18 months credit, and to-apply the proceeds'to the payment of thedebts of the said Minifie, and to hold what might remain after such payments, subject to the décree of the Circuit-Court of the said district and county, in the suit brought by the wife, of said Minifie for alimony; and the balance, if any, to be paid over to said Minifie. ■ The bill then concludes, by charging that the contract made by the plaintiff-, with the defend ant, for the purchase of the said lots, is void, because it was made in contravenlion of an injunction'obtained by Mrs. Minifie, -and because-the purchase, by the plaintiff, was made at private, and not at public sale; that the title is likewise defective for the same reasons, and. because the property is subject to the claim of Mrs. Minifie for alimony and for dower, and.is not released from.the claims of Prout, Jameson, and Walker, to the seven lots sold to them.' The prayer of this bill is,- that the contract may be declared void.; that the judgment upoii the plaintiff’s note may be perpetually enjoined; and that the pledged securities may be restored .to the plaintiff.

The injunction asked for, was granted, till -further, order.A petition was filed in the same Court, by William -Prout and' Others, creditors of Charles■ Minifie, setting forth'the death of-Washington Boyd, leaving. Eleanor, the wife of Nicolas' L. Queen, his heir at law; and praying that another trustee might be appointed to complete the execution, of the trusts of -the. deed from Minifie to Boyd. To-this-petition, Queeñ and his. wife appeared and filed an -answer, admitting the. truth of the' allegations in the petition, that the said Eleanor is the heir at law of Boyd; and submitting to.such decree as' tl)e Court might think proper to make.

That cause being set .for,hearing on the petitionand answer, the Court, on the 21st January.-1823, -made a decree by which Richard Wallack was- appointed trustee in -the place of Washington Boyd, deceased, upon his giving bond and security ; with authority- to complete the trusts left unexecuted by Boyd, ac, cording, to. the provisions of the trust deed; and to recover and' collect the purchase money for; such of the trust property as had.been sold by Boyd; and upon the payment thereof, to.convey said property by a good and---sufficient deed, in feb, to the ' purchasers-thereof, and to bring the said proceeds of sale into the Court, to be .distributed -as the said Court- might direct, according to the deed, óf trust A bond was accordingly- executed by Wallack, approved by one of.the .Judges of the Court, and filed amongst the proceedings in that cause; a transcript of which proceedings was made'an exhibit- in this cause; on the, same day, the above decree was passed, the Court decreed, in this cause, that the plaintiff should, on or before a certain day, proceed in'the samé* by making the heirs of Washington Boyd defendants; as also such other persons as mightbe necessary to enable the Court ..to decreé therein; otherwise that the bill of the plaintiff should be dismissed.

In Máy-1824, the plaintiff filed a bill of' revivor against N. L. Queen and Eleanor his wife, heir at law of Washington Boyd, arid Richard Wallaek, administrator of the said Boyd; to which bill .Queen' arid wife appeared,- and ’by"consent' of parties, the answer'filed by, them to the petition of -Prout and others, was received as an-answer to the bill of revivor, and the original suit, was agreed- to stand revived;

■’ The .cause was then set for-hearing on the bills, answer and exhibits,,and. all the proceedings in this cause, .and also in the petition of Prout and. others before mentioned; whereupon the Court decreed that Richard. Wallaek, the trustee appointed by the order of the 21st .of January 1823, should‘execute a good arid sufficient deed .to the plaintiff, for the property sold to him by .Boyd,-.the former, trustee, according-to the' terms of that sale, to be approved by one of the Judges of the Court; to be filed with the clerk; and to. be delivered-to the plaintiff, upon the payment'of .the purchásé money; that he should also obtain and file with the clerk, a sufficient deed of release, by Zachariah Walker, to be approved as. aforesaid, to the plaintiff, releasing all title arid claim 'to. any and every part of the property-of •Charles ;Miriifie, sold by Boyd as his trustee; and that upon - the said deeds being executed, approved, and filed, as aforesaid, the injunction granted in- this cause should be dissolved, and the trustee be authorized to ■ proceed to levy arid collect the ampuirit of the, jhclgment for the purchase money, as mentioned In. the bfll. The decree then proceeds to dismiss the .bill, with costs; and that before próceeding to collect the said purchase money, a good arid sufficient bond should be- executed, in the penalty of 500 dollars, by any one or more of the creditors, with security, to bé approved by one of the Judges of the Court,, with condition to indemnify the plaintiff, his heirs and assigns, from ail claim arid demand of.JFrancis Jameson, his; heirs and assigns,, to any part of the lots or property, mentioned in the deed of the .saidf Wallaek to Greenleaf; which might have been purchased -by the said Jameson, at the sale, of Washington Boyd; and filed- with the clerk of the Court. - From this decree, the plaintiff appealed to this Court. A ,deed by Richard Wal-láck to James fireenleaf,, bearing date the-2d of August 1825, a .bond of indemnity executed by Jonathan and William Prout, arid a-deed’of. release by Z¿ Walker, as directed by .the aforesaid-decree, dated the 3d and, fth of February 1825, were exé-’enied, approved, and filed with the clerk of the Court, in conformity with the decree, and form parts of-the record brought up by this appeal.

The first objection made by the.appellant’s counsel to the decree of the Court below, is, that the contract between the appellant and Washington Boyd, forthe saleof the lots'mentioned in the bill, was void, for want of- authority ih the latter, to dispose of the property in-any other mode, than1 at public auction. Such, it must be-acknowledged, is the mode prescribed by the deed of trust} nor can it be questioned, but that the trustee was bound to conform to this, as well as to the oither requisitions of tha.deed, under which he professed to. act. This was the test of'yalue, which the grantor thought proper tore-quire; and it was not competent to the trustee to establish any other, although by doing so, he might, in-reality, promote the interest of those for whom he acted.

But what are the facts in the present case?

The nine lots, which formed the subject of the correspondence between the appellant and the trustee, in March 1816, -and of the written contract, on the 19th of ,March 1817"; were actually advertised, as directed by the deed. of.trust; were set up for sale, as the amended bill alleges, at public auction, in April 1816, and were' sold for the sum of 4019 dollars 5. cents. Two of them were set down to S. Elliot, the agent of the appellant, at the price of 3500, dollars; and' the other seven were struck pff to Jameson, Prout, and Walker, for'the remaining sum of, 519 dollars '5 cents.

It is not even charged in the- bill, much less is there any proof in the cause, to warrant a ■ suspicion that the sale was not fairly conducted; or that any person bid for the two lots set down to Elliot, more than the s.um at which they were charged tó him.

In making the sale in that mode, no deception was practised upon the appellant; since he was informed, by Elliot’s letter to him, of the 16th of March 1816, that Mr.-Boyd had further postponed the sale of Minifie’s property, and would consider him, Greenleaf, as the purchaser for 8500 dollars. The writer adds “ I have stipulated, that the whole property shall Be included.. It is necessary, to go through the forms prescribed by the decree;” meaning, no doubt, if the letter, be truly-transcribed into the record, the trust deed. But, on the 19th of March 1817, when the contract was-finally reduced to writing,the appellant was,distinctly apprized, that the whole of the lots had been sold' at public sale, at six, twelve, and eighteen months; - and he was then satisfied to give his note for the stipulated sum agreed • to be paid for' the nine lots, upon the engagement of Boyd, to make a • deed for the- same t.o Samuel Elliot. Upon what plausible ground, then, can the appellant now insist, that the lots were not. sold at'public auction, and, on that ground, to seek to be relieved against the payment of his note, given for the purchase money, thus agreed to be paid, for the property? The argument urged by his counsel, that tlie contract is void, because the lots were sold to the appel-lanffór a less sum than that at which they were struck off to the purchasers, at the public sale, cannot, for a moment, be maintained; since, whatever might be the liability of the trustee' to the cesluy que trust, to pay the difference between those -sums, it is surely not an objection, in the mouth of the appellant, sufficient to release him from his contract.

But, were it to be admitted,: that Boyd acted in derogation c>f his \rust, in selling the property to the appellant for a less sum than he actually- sold it for ht public auction, and that on that account, the title of tlie appellant might be impeached; thay not the objéction- be removed by the agreement of the parties, beneficially interested- in the property under the deed of tyust, ’to confirm the sale; or, by their acts, tending to pro-’ duce the same result ? Of this we. apprehend there cannot exist a doubt. Now, who are the parties for whose benefit this trust was created ? They are the creditors of Charles Minifie, in the first instance ;" and after they are satisfied, Mrs. Minifie, to the extent of the sum which might be decreed to her for alimony; and then Charles Minifié, as.to any balance which might remain. But it appears from • the exhibits filed in the cause, that the amount of the debt due by. Minifies and for which judgments were obtained against him; exceeded considerably the sum at which these lots sold at public auction, independent of - the interest due upon those debts, and the.costs of thfe different suits in which the judgments were entered. The only persons, then, who are beneficially interested in the property conveyed by the deed of trust, are the creditors of Charles Minifie, who. have united in a suit, against the heir at law of Boyd, for the purpose of having a new trustee appointed to carry into execution the sale made of the property'by: the former trustee, under the deed of trust;, and they are,, as. the bill charges, the active parties- in enforcing the payment of the purchase money; after these solemn acts, done in affirmance of- the .sale made' to the plaintiff, the creditors would never be. permitted; by a,Court of Equity,, to; impeach it; nor can-thfe. alleged breach of trust be urged - by the appellant, as a reason for annulling the contract, or excusing him from the payment' of the purchase money.

. The,next objection made by .the appellant’s counsel to the-decree .of the Court below,' is, that the title of -the property, which it'directs to .be conveyed to--the appellant, is defective; being, encumbered with the claim of Francis. Jameson to three' of the lots, and with the right of dower of Mrs. Minifie in the whole of the property.

It is very manifest, that the title of Jameson, if any he has, is merely nominal. The salé to him was made in 1816, upon six, twelve, and eighteen months credit; and, by the terms of the sale, he was required to give his note for the purchase money, with an approved endorser, negotiable at one of the banks in this district. The' bill does not charge, nor is it even alleged at the bar, that a note was given by Jameson for the pur-, chase money, bid for these lots; not one cent of it has been paid by him, or even demanded; or that, from, the year 1816, when the sale was made, to the present moment, a claim to the property has been asserted, or intimated, by this person. But, it does appear, by the testimony of a witness examined in.the cause, that the plaintiff, Greenleaf, has been in. possession of the whole of the property, from the time that he purchased it; and that Jameson had, upon the application of Boyd to relinquish his claim to the property, consented to do so.

Upon this state of facts, this Court can feel no hesitation in saying, that Jameson had not such an equitable title to the lots purchased by him, as a Court of Equity, would enforce against the trustee of Minifie, or against the plaintiff. Whether that Court, would require a title like this to be released, in a case where a trustee was a party plaintiff, asking for a specific exe cution of the contract, need not be decided in this case. But we are clearly of opinion, that the want of such a release cannot.be urged by the vendee; as a cause for rescinding the contract.

The objection founded on the right of dower of Mrs. Mi-nifie, is quite as untenable as the one that has just been disposed of. The plaintiff, when he made the purchase of this property, was apprized that he was dealing with a trustee— and knew, or might have known, from the land records of the county in which the property was situated, whether Mrs. Mi-nifie'was a party to the deed of trust; and had, or had not, relinquished her right of dower. He required of the trustee no stipulation in relation to this right — and it may therefore be fairly presumed, that the value of it was taken into considera-' tion, in fixing the amount of the purchase money to be paid for the property. In such a case, as well as in that which we have just disposed of, á Court of Equity will not interpose to relieve the vendee, but will leave him to süch legal remedy as he may be entitled to, in case his title should, at any future, time, be disturbed by these claims.

The Court is, upon thé whole, of opinion, that the objec- • tions to the decree, which have been noticed, are insufficient to warrant a reversal of it. It is, however, exposed to other objections, which must produce this result, and which now remain to be examined.

■The first is, that Richard Wallack, the substituted trustee, who is required by the decree, to perform a number of acts, in order to entitle him to levy and to collect the amount of the judgments for the purchase money, and upon the performance of which the injunction is dissolved, was no party to the controversy in the Court below. The suit, it is true, was revived against him in his character of administrator of Washington Boyd,- and also against the heir at law of Boyd; to which mode'of proceeding no objection could be taken, if the decree had been against him in his character of administrator, because, in that character, he claimed under a title derived from the party, by whose death- the abatement of the' suit was causedand was the person designated by law to represent him,. in relation to his personal estates.

But this was not the case in respect to Richard Wallack, as-the Substituted trustee and successor of Boyd. The power, with whieh the. latter was clothed, became vested in Wallack, not by operation of law, but by the appointment of the Court, subsequent to the institution of the suit.. The original suit, which abated by the death of Boyd, became also.defective 'by the termination of'his powers, and the appointment of anew trustee, and could only be prosecuted against him*by way of á supplemental bill, in nature of a bill ,of re.vivor; in which it would be necessary to state, not only the original bill and the ■proceedings thereon, and the death of the former trustee; but the appointment of Wallack as his successor, and his acceptance of the trust; and to require him to appear and answer the charges contained-in the -supplemental and original bills. For any thing appearing upon the face of this record, Wallack is an entire stranger to the trust with which the decree connects, him, and without any power, whatever, to make a valid conveyance. For thére being no supplemental bill, or allegation in any bill that Wallack had been appointed to complete the trust which Boyd had left unexecuted, and to collect the purchase money for the property which that trustee had sold, and that he had accepted such appointment; these facts cannot be considered as- having been established by the proceedings and decree in the suit of the creditors of Minifie, against the heir at law of Boyd. See Mitf. 33. 63. 70.

The next objection to the-decree is, that after decreeing Wal-lack to perform a number of acts to entitle him .to levy and collect the amount of the judgment against .the- appellant, as before mentioned, it proceeds to dismiss thé bill with costs; thereby- putting the cause out of Court, and rendering the other parts of the depree ineffectual. Should Wallack, for example, refuse, to execute a. conveyance of the‘property, to..the, plaintiff in the Court below, pursuant to the decfee, thfe nonexistence of tlie suit on which' that decree was 'made, wóúld prevent .any process of contempt frofn issuing againsthiro, for .the purpose, of compelling him to execute, the .decree. ,It is no answer to this objection, that- it appears by the record in this case, that Wallack has- in" fact executed the .decree on. his ' part; since the error complained of is in the decree itself; and not in its execution.

It was insisted by the counsel for the appellees, in anticipa-tion ; of -the above objection,- that .the Court below would .have been warranted' in dismissing the bill, absolutely, .without requiring any thing to be performed by the new trustee, in'consequence of the omission of the plaintiff id that suit to make proper parties.

That a bill may be dismissed, where the plaintiff, when Called upon to make proper parties, refusbs,.or is guilty of unreasonable . delay, in doing so, need not be questioned — but to do so without a demurrer, plea, or answer, pointing out the person .‘or .persons. who the defendants- insist ought, to - be made partied,' is unprecedented, and would-most unquestionably-.be erroneous, although the decree should assign this as the ground of dismission; which is not done in. the.pres.ent case.

The last objection to the decree, which, it is thought necessary to notice,. is, that, the'heir at law of Washington Boyd, deceased, is not'required to release her 'title--to the. proper/-, ty in controversy to the appellant;, a. majority; of this Court being of opinion, that the legal estate, in that' property did hot' pass to Richard'Wallack, .under the decree-of,the 2ist of' January 1823, .before referred tó,but is yet outstanding in the heir at law of Boyd

The decree, of the1 Court below must, for these errors, be reversed, and the cause ,-is- to be remanded.to that Cout-t for further proceedings to.be had.thereon,. in conformity with the' principles beforé stated.;

Decree. — This cause came on, &Cs on consideration whereof, It, is the opinion of this Court,' that there is error in the said decree, in requiring any act to he perforated by Richard' Wal-lack, before be was made a party to. the said suit, by regular proceedings against him; according to the' course and practice ef a.Court of Chancery, and had'either answered the bill making him such a party, or the same had been taken for confessed, against him; and that the,said'4ecree-is also errdneous,"in-dismissing the bill of the pláintiff in the Courtbelo w; and also, in not decreeing the said Nicholas L.' Queen, and Eleanor' Quqen his wife,'the defendants in, the said suit, to. release to the appellant,. James Greenleaf, all their right and title to the property directed by the said decree to be conveyed to him, by the said Richard Wallack; for which errors, it is now by this Court decreed and ordered, that the said decree be reversed and annulled, and that the cause be remanded to the Court below, tp be there proceeded in, according to law, and in conformity with the principles stated in this decree.  