
    Robertson vs. Gaines, et als.
    
    1. The general principal of the common law is, that a mere naked power to sell, not coupled with an interest, given to several persons, must be executed by all, and does not survive. But when it is coupled with an interest, it may be executed by the survivor.
    2. A direction in a will to executors to raise money out of real estate for the benefit of creditors, without specifying how it was to be raised, conferred the power to sell such real estate for such purpose.
    3. Where a testator directs his executors to sell lands, without words vesting in them an interest in the lands, or creating a trust, such direction confers a naked power, which does not survive.
    4. Where, however, a testator directs his executors to sell lands for the benefit of creditors, or to do any act in which third persons are concerned, and who have the right to call on the executors to execute the power, such power survives.
    5. A trust will survive, though no way beneficial to the trustee.
    6. Where there is a trust charged upon executors in the disposition they are to make of the proceeds of the sale of real estate, it is the settled doctrine of a court of chancery, that the trust does not become extinct by the death of one of the executors.
    7. Where A. andB. were appointed executors, with authority to sell and convey land, and A. qulified as executor and acted as such, and sold and conveyed land: Held, that B. not having qualified or acted as executor, A.’s deed passed the title, though no renunciation or refusal by B. was entered of record.
    8. Where executors having power to sell and convey real estate, do sell and convey by deed with covenant of warranty, such covenant of warranty estops the de-visees of the testator from setting up and asserting an outstanding title against the vendee of the executors.
    Thisaction of ejectment was instituted by EidridgeB. Robertson, on the 11th day of April, 1837, in the circuit court of Shelby county, for the recovery of the possession of one thousand acres of land, lying in that county, and held by the tenants of Edmund P. Gaines. It was submitted to a jury at the October term, 1840, Sylvester Bailey, special judge, presiding. *
    
    It appeared, that at an early period in the settlement of the territory now constituting the State of Tennessee, Thomas Blount, of the State of North Carolina, engaged the services of Elijah Robertson as a locator of lands in the said Territory; that Robertson located many tracts for him; that in the year 1788, a grant issued from the State of North Carolina to John G, and Thomas Blount, for the tract of land now in controversy;' that about the year 1799, Thomas Blount being indebted to Robertson, for locating services, conveyed, jointly with John G. Blount, fifteen tracts of land to him, of which the present was one, and that said deed was lost, never having been registered. Elijah Robertson died in 1797, leaving heirs, to wit, Elizabeth Robertson, afterwards Elizabeth Childress, Patsey Robertson, afterwards Patsey Hannum, Sterling C. and Eldridge B. Robertson. Thomas Blount died in N. Carolina in 1808, having made his will. This will appointed his brothers John G. Blount and Willie Blount, and his nephews, Thomas H. and W. G. Blount his executors. It was proved and recorded in 1812. William G. Blount and Thomas H. Blount alone qualified and acted as executors. The other two did not qualify, nor did they act as executors. It does not appear that they ever refused or renounced the executorship by record or by any kind of writing whatever. This will, after otherwise disposing of two tracts, gave all the rest and residue of the share of the testator in the lands owned in Tennessee by testator and John Gray Blount, to the two sons and three youngest daughters of William Blount, deceased, with the condition, however, attached thereto, that out of these lands was to be raised by his executors, in such manner as they should think best, a sum of money equal to all the just debts of the testator, which should be appropriated to the payment of them. Gaines intermarried with Barbara Blount, one of the devisees provided for as above set forth, and had issue by her capable of inheriting.
    In 1823, John Catron having intermarried with one of the descendants of Elijah Robertson; and the heirs of said Elijah having requested that payment of the services of said Elijah should be made to said John Catron, he took to himself a deed for fifteen tracts of Sand, of which the tract in controversy is one, from the acting executors of Thomas Blount deceased, to wit, from Thomas H. Blount end William G. Blount. This deed recited, that Thomas Blount, deceased, was indebted to Elijah Robertson, deceased, for services performed in locating lands fop him; that said Thomas Blount, with his brother John G. Blount, did by formal deed, executed •about the year 1797, convey to the said Robertson, the fifteen tracts of land; that said deed of conveyance was lost without ever having been registered; that said Robertson had died, leaving heirs at law, and that Thomas Blount died in the year 1806, leaving a will, which appointed John G. Blount and Willie Blount, his brothers, and his nephews, Thomas H. Blount and William G. Blount his executors, and directed that his executors should raise out of the lands in Tennessee, a sum equal to all his debts, to be appropriated to the payment thereof. That Thomas H. Blount and William G. Blount qualified as executors of the said will, and had acted in execution thereof, but that the said John G. Blount and Willie Blount, had never qualified as executors or acted as such; that the heirs of said Robertson had assigned their claim against the estate .of Thomas Blount, deceased, to John Catron in part, and requested that “the payment should be made to John Catron by a conveyance of lands or otherwise, in full discharge of said demand,” and .that, therefore, “to supply the lost deed, and to discharge said demand of the heirs of Elijah Robertson against the estate of Thomas Blount, deceased,” the said executors sold and conveyed the land to John Catron.
    At the date of this deed, John Gray Blount,.to whom this tract in controversy was granted jointly with his brother Thomas, conveyed all his interest in the same to John Catron.
    Upon a division of the estate of Elijah Robertson, this tract was assigned to Eldridge B. Robertson, and conveyed by Catron to him.
    Bailey, special judge, charged the jury upon the above facts as follows:
    1. That where a party introduced a deed, and claimed under such deed, it was evidence for him as well as against him, and that the was bound by the recitals contained in it; that, therefore, if the jury found that the deed from the executors, introduced by the plaintiff, recited the fact, that a deed had been executed about the year 1789, by John G. and Thomas Blount to Elijah Robertson, for the identical tract of land sued for in this action, although it recited the subsequent loss of such deed without registration, still the recital would be notice to the plaintiff of such deed, and would be good evidence without further proof of a legal outstanding title to the whole tract in said Robertson, or if he was dead, then in his heirs; that when a deed was once signed, sealed and delivered, the vendor by the execution of it divested himself of the legal estate; no title, legal or equitable, remained in him; he was seized of nothing for the use of the vendee, and no act remained to be done by him to give effect to the conveyance.
    2d. That the law was, that if authority be given to executors to sell, a surviving executor might sell, and an acting executor was put in the same situation upon the renunciation of the other executors by the words of the statute of 21st Henry 8th, ch. 4. But that in order to understand who where meant by the term, acting executors, it was necessary to state, that where several persons were named as executors in a will, and some of them took upon themselves the execution of the will, and the others renounced, those who undertook such execution by due course of law, were deemed acting executors in contradistinction to those who did not act; and that the only evidence of such renunciation must be a renunciation made in the court where the will was proven, p.nd there put upon record, and that otherwise it would not appear but that all were acting, whilst only a part had executed the power given by the will, and that unless it appeared to them by record evidence, that a renunciation had been made by two of the executors named in the will, the deed by two to the vendee, Catron, would convey to him no title.
    The court further charged the jury, that so far as said deed purported to be made to supply a lost deed, to that extent it was a void execution, or if they believed that said deed was executed for the purpose of satisfying and extinguishing a locative interest in lands such as was usually implied from such services, it would not then be well executed, and would not on that account confer any title; and if the jury found said deed made for such purposes, they would regard it as null and void, and find for the defendant to the extent of land covered by said deed; but if they believed from the evidence before them, that Thomas Blount, in his life time, was indebted to Elijah Robertson for services in locating land at a fixed price, or at the worth of such services, not payable as a locative interest in the land entered, but as a debt to be paid by said Blount, then the power would be well executed, and to that extent they would find for the plaintiff.
    The jury returned a verdict for the defendant, Gaines. The plaintiff moved the court for a new trial, which was overruled and judgment rendered thereupon. The plaintiff appealed in error to the supreme court.
    
      W. T. Brown, for the plaintiff in error.
    
      Thomas J. Turley, for Gaines.
    The first and perhaps the most important and difficult question in this case is,
    Gan the power be executed by the two acting executors without the concurrence of their co-executors, who were living at the time, but who had omitted to prove the will and take upon themselves the trust?
    This will gives to the executors, as we contend, a nalced •power, a hare authority not coupled with an interesft. The fee is absolutely devised to his nephews and nieces, and with it also the rents of the lands, subject to be divested by some act or acts of the executors for the purpose of raising money to pay off the debts of the testator, if any were found to exist. Sug. Powers, 106 to 111, inclusive and authorities cited. Sug. Powers, 128: Law Lib., No. 38: 1 Thom. Coke, 396, marginal page, 397: Ibid. 398-99, &c.: Ibid.: 2 Thom. Coke, 118-17: 2 Shep. Touch. 448: Powell Dev. 233, 237-8, marg.: Law Lib. vol. 15, No. 55: 2 Burr Rep. 1027, Lancaster vs. Thornton: 1 Atk. 474-6: ,7 Yer. 18: 1 Williams Ex’rs, 415: 7 Cowan’s Rep. 187, 193.
    This being the case, it might be successfully argued, that the power does not survive.
    But all this doctrine about naked powers, and powers coupled with an interest or trust, we believe to be wholly immaterial to question, and unnecessary for this court to decide. The question is not, whether the power is coupled with an interest, nor whether it will survive. But the question is as already stated, whether, when all four of the persons named executors are actually living, though two of them have neglected or omitted to act, the other two can execute the power?
    The rule of the common law was, that when power to sell was given to several, a sale by some or one .of them was invalid. 1 T. Coke, 398: Sug.Pow. 162:20 Law Lib? 139-40: 2 Williams Ex’rs, 623-4: 2 Shep. Touch. 448:
    
      But besides the above authorities, we' have also the authority of the Parliament itself, that this was the rule. For in the recital of the act of the 21st, Henry 8, ch. 4, it is expressly said, that this was the rule, and that statute was made expressly to alter the law int that particular’. And as that statute is the law of this State, it is our business to see ho,w it has altered the rule.
    The words of thestatute are, “Where part of the executors,” &c.i from which it is manifest, that the validity of the sale made by part of the executors depends upon the fact, whether there has been a refusal of the rest. See all the authorities above cited.
    The question then is, what is a refusal?
    
    We say, a refusal can only be by some act made and entered of record. Went. Off! Ex’rs, 38 and 88 14th Ed.: 2 Rob. on Wills', 43, and he refers to Roll’s Abr. 907: 1 Williams Ex’rs, 153: 3 Bac. Abr. 43: Toll. Ex’rs 42: Swinb. on Wills, 6, sec. 12: 4 Pick. 33; 16 Serg. &Rowl. 416: 3 Binn. 69: 4 Yer. 16.
    Upon such renunciation the acting executor is put in the state of a surviving executor. Sug. Pow. 167, note 1: 3 Binn. 69': 1 Cains Cases, 16.
    And this is the law, whether the executor have only a power to sell, or whether the land is devised to them to be sold; thereby giving them an interest. 1 CokeLitt. 398: 2 do. 118, note 1: 2 Williams’ Ex’rs. 624. For if this were the law in the case of a naked power, where the executor took no interest, a fortiori, it is the law, where an executor took an interest. For the reason, that A. shall not sell the interest of B. while B. is living-
    But we also say, this power was not well executed by the executors, because it does not come within the provisions of the act of 21st Henry 8th. That statute provides for a case where the executors are ordered and directed to sell: and it is an imperative duty on them to do so. In this case a sale is not positively directed; it is discretionary in what manner they shall raise the money. 3d Bibb Rep. 349. It remains as at common law.
    Nor is it well executed, for the reason that it was not sold and conveyed for the payment of debts; a locative interest not being a debt. 6 Yer. 411. But if it were a debt, still that fact, to wit, the performance of the services in locating lands, should have been proven; the recital of that fact can be no evidence against us. The indebtedness must be shown by them to exist. It is the only contingency upon which they could sell. It is a condition precedent. The intention in this, as in all other cases, is the controlling and governing principle. 6 John. R. 73; also Cro. Car. 335:3 Chan. Cas. 221: Sug. L. Ven. 343-4: 1 Pick. 318: 14 Mass. Rep. 495: 2 Lit. Rep. 245 : 4 Monroe, 392: 2 Pirt. Dig. 206: 1 Powell Dev. 245, note. And, even, if the recitals were evidence against us of the existence of the debts; still they go on to show that the debts were extinguished by the first conveyance; therefore, executors had no right to convey the second time.
    We also contend that the plaintiff himself has shown an outstanding legal title in another. The recitals in his title deed show that fact, and he is bound by them, and cannot dispute them. 1 Stark. 302 to 3Q5:1 Saund. Pie. and Ev. 42:1 Story Eq. 387, sec. 400 : 6 Com. Dig. Plead. 239, sec. 5.
    An unregistered'deed passes the legal title. 3 Yer. 171: 10 Yer. 1.
    
      G. X). Searcy, for Gaines.
    The deed from Thomas Blount’s executors to Catron, recites, “that John G. and Thos. Blount, in the lifetime of Thomas Blount, conveyed the lands hereinafter described, by deed, to Elijah Robertson, in consideration of the services of said Robertson, rendered to them in locating lands. That the deed executed by the Blounts to Robertson is lost, and that this deed is made to supply the same.”
    Recitals in a deed are not only evidence against the party making them, but against any person claiming under him. They estop parties and privies: privies in blood, in estate, and in law. Jackson vs. Parkhurst, 9 Wend. 209.
    When an estate, passes by deed, the cancelling of such deed af-terwards, will not divest any estate out of the person in whom it was vested by that deed. Cruise, 497: Morgan-vs. Elam, 4 Yer. 375.
    The plaintiff cannot recover the premises in question, having shown an outstanding title in the heirs of Robertson.
    We further contend, that the deed from Thomas Blount’s executors to Catron, passes no title to the land in question. Thomas Blount devised this land to the three sons and two youngest daughters of William Blount, conferring upon his executors a power, out of the lands so devised, to raise a sum of money equal to his debts, which they were directed to apply to the payment thereof. Pie appointed John G., Willie, Thomas H. and William G. Blount his executors. Only two of the executors qualified; Thomas H. in N. Carolina, and William G. in this State.
    Upon the death of Thomas Blount, the legal title to the premises in question, by virtue of the will passed to, and vested in the devi-sees. The will conferred upon the executors a bare naked power, an authority not coupled with an interest. .Sugden, 131.
    Four persons were nominated by the will, who were to exercise their judgment as to the manner in which the money chargeable on the land should be raised. The rule of the common law is, that where power to sell is given to several, a sale, unless made by all of them, is invalid. Co. Lit. 113: Sugden, 139.
    We maintain, that the common law rule must govern this case. The rule as applicable to this case, has not been changed by the statute of 21st Henry 8, ch. 4. The words of that statute are, “that where part of the executors named in such testament, directing such lands, &c., to be sold by the executors, do refuse to take upon him or themselves the administration and charge of the same testament or last will, that then all bargains and sales of any such lands, &c., made by him, or them only of said executors, that so doth accept, shall be as good and effectual in law, as if all the said executors, so refusing the administration of the same will, had joined him in such bargain and sale.”
    It is manifest that the validity of a sale made by a part of the executors, depends upon the existence of two facts :
    1st. Whether the will directs a sale.
    2d. Whether there has been a refusal of the other executors to act.
    As to the first point: the will directs the executors, out of the lands devised, to raise a sum of money for the payment of debts. The power here given is a trust and confidence to be exercised by the executors jointly, according to their best judgment. It does not direct, nor necessarily imply a sale, but leaves it discretionary with the executors as to the manner in which the money shall be raised. The statute applies only to cases where lands are directed to be sold, and not to cases where a discretionary power is given ; where a trust and confidence is reposed. The case of Wooldridge’s heirs vs. Watkins, 3 Bibb, 350, is in point. There power was given the executors to sell or exchange, as they might judge necessary, for the advantage of the estate. It was held, that one executor, though he alone qualified, had no power to sell without the concurrence of the other executors.
    
      As to the second point; we contend that there has been no refusal, but only an omission or neglect to qualify. A refusal can only be made by some act of record — any act in pais, as a mere verbal declaration to that effect is not sufficient to give it validity; it must be solemnly entered of record. See Toller, 42: Wentworth, 88: Williams, 153: Bacon, Title Ex’rs, 405: 4 Pick.42: 16 Sergeant & Raw. 416.
    In Zebeck vs. Smith, (3 Binny, 69,) Yates, judge, said, “It seems to be admitted on all hands, that if authority to sell be given to executors virtute officii, an acting executor is put in the same state as a surviving executor, upon the renunciation of the other executors, by the words of 21st Henry 8, ch. 4. In this case two of the executors renounced; it is an authority.
    We rely upon the New York cases as fortifying the position here contended for. They turn upon a significant alteration of the statute of 21st Plenry 8, ch. 4. The words of the New York statute are, “and if any executor shall neglect or refuse to take upon him the execution of such will, then all sales,” &c. In the English statute the power is given to one of several executors, when the rest refuse. In the New York statute the power is given to one of several, when the rest neglect or refuse. By the first, an act is required to make the sale by one valid. By the second, a mere omission will suffice.
    Again: This deed passes no title to Catron, because it was not executed in pursuance of the power. The will gave the executors power, out of the lands devised, to raise a sum of money to pay debts. This power would authorise a sale, but a sale to pay debts only. It is a naked power, and must be strictly pursued. In the case of Taylor vs. Atkins, 1 Burrow, 120, Lord Mansfield said, “The intent of the parties who gave the power, ought to govern every construction. He to whom it is given, has a right to enjoy the full exercise of it. They over whose estate it is given, have a right to say it shall not be exceeded, the conditions shall not be evaded; it shall be strictly pursued in form and substance. And all acts done under a special authority, not agreeable thereto, nor warranted thereby, must be void.”
    This was not a sale for money, and a power to sell, does not au-thorise an exchange or barter, but a sale for money only. Taylor vs. Galloway, 1 Hammond, 232.
    It was not made in discharge of a debt:
    
      1st. Because the interest which Robertson acquired by locating the lands was not a debt, but a charge upon the land, an equitable right to an undivided interest in the land.
    2. Because this deed was not made in consideration of Robertson’s services in locating the land, but to supply a deed, said to have been made by Thomas Blount, in his life-time, conjointly with John G. Blount, which was lost.
    In the case of Floyd vs. Johnson, 2 Littell, 115, the court held, that a power to executors to sell land for special purposes, gave them authority to sell only for those purposes. Here the will charged the land with the payment of debts. The executors could sell for no purpose but that of paying debts.
    
      W, T. Brown, for Robertson, in reply.
   Gkeen, J.

delivered the opinion of the court.

Thomas Blount of North Carolina, made his last will and testament in 1808, which was proved and recorded in 1812, the sixth clause of which is as follows:

“I give and bequeath to the three sons and two youngest daughters of my second brother William Blount, all the rest of my share of the lands in Tennessee, owned by John G. and Thomas Blount, to be divided among them or the survivors of them, at the time of my death, equally, share and share alike, but it is to be understood that out of these lands, before a division of them is made, such as is herein directed, is to be raised by my executors in such manner as they shall think best, a sum of money equal to all my just debts, which they shall appropriate to the payment thereof.”

He appointed John Gray Blount, Willie Blount, Thomas H, Blount and Wm. G. Blount his executors, of whom Wm. G. Blount and Thomas H. Blount alone qualified. It was agreed, “that the other two executors did not qualify, nor would they qualify or act as executors, but no refusal or renunciation was ever made in court or entered of record, nor did they ever refuse by writing of any kind whatever.”

A deed was executed to the land in controversy, the 27th of September, 1823, to John Catron by the two acting executors, Thos. H. and Wm. G. Blount, reciting, “that whereas Elijah Robertson had located lands for the said Thomas Blount, deceased, and the said Thomas was indebted to the said Robertson for said locating, and about the year 1789, did by a formal deed, convey to the said Elijah the fifteen tracts of land hereinafter described, conjointly with his brother John Gray Blount, the said fifteen tracts of land having been granted to the said John Gray and Thomas Blount jointly, and afterwards said deed of conveyance was lost without ever having been registered. And whereas, in the year 1797, the said Elijah Robertson died, leaving Elizabeth Robertson, afterwards Elizabeth Childress, Patsey Robertson, afterwards Patsey Hannum, Sterling C. and Eldridge B. Robertson, his heirs at law. And whereas, about the year 1808, the said Thomas Blount died, leaving a last will, which contains power to pass real estate, and by which will he appointed his brothers John Gray Blount and Willie Blount, and his nephews Thomas Henry Blount and William G. Blount, his executors, and who by his will were instructed to raise .out of the lands granted to John Gray and Thomas Blount, and lying in Tennessee, in such manner as his said executors should think best, a sum equal to all his just debts, which they should appropriate to the payment thereof. And whereas, the said Thomas H. Blount and William G. Blount qualified as executors of said will, and have acted in execution thereof, the said John G. Blount and 'Willie never having qualified as executors to said will, nor acted as such. And whereas, the heirs of the said Elijah Robertson have assigned their claim against the estate of the said Thomas Blount, to the said John Catron, in part, and requested that the payment should be made to said Catron, by the conveyance of lands or .otherwise, in full discharge of said demand. Therefore, to supply said lost deed, and to discharge said demand of the heirs of Elijah Robertson against the estate of the said Thomas Blount; we the said Thomas H. Blount and William G. Blount, executors of the will of Thomas Blount, do hereby bargain,” &c.

E. B. Robertson plaintiff, derived title from a grant to John G. and Thomas Blount, the will of Thomas Blount, the aforesaid deed of his executors to Catron, a deed from John G. Blount to Catron, and a deed from Catron to himself.

The defendant, E. P. Gaines, intermarried with Barbara Blount, one of the devisees of the Tennessee lands, by whom he had issue capable of inheriting; and was admitted to defend for tenants in possession, as their landlord; claiming the land as such devisee.

I. The principal question arising upon this state of facts is, whether the conveyance to Catron by only two of the executors of Thomas Blount, the other executors named in the will never hav* ing qualified or acted as such, is valid to pass the title of the testator' to the land in question.

The general principle of the common law laid down by Lord Coke (Co. Litt. 112, b) is, that a mere naked power to sell, not coupled with an interest, given to several persons, must be executed by all, and does not survive. But when it is coupled with an interest, it may be executed by the survivor. 2 John. Chan. Rep. 19: 10 Peters Rep. 564.

In the application of this rule, much difficulty has arisen. The distinction between a naked power, and a power coupled with an interest, is laid down by Mr. Justice Thompson, in the case of Peter vs. Beverly, (10 Peters Rep. 564,) with as much precision as the question is susceptible of being treated. It is this: “a mere direction in a will to the executors to sell lands, without any words vesting in them an interest in the land, or creating a trust, will be only a naked power, which does not survive.” “But when any thing is directed to be done, in which third persons are interested, and who have a right to call on the executors to execute the power, such power survives.”

It is not necessary that the executor should have a personal interest in the thing to be done. The possession of the legal estate, or a right in the subject, over which the power is exercised, creates the interest. Hence a trust will survive, though no way beneficial to the trustee. 2 John. Chan. Rep. 20: 10 Peters Rep. 564. When there is a trust charged upon executors, in the disposition they are directed to make of the proceeds, it is the settled doctrine of a court of chancery, that the trust does not become extinct by the death of one of the executors. 2 John. Chan. Rep. 20.

The devise in this case, is in the following terms: “But it is to be understood, that out of these lands, before a division of them is made such as is herein directed, is to be raised by my executors, in such manner as they shall think best, a sum of money equal to all my just debts, which they shall appropriate to the payment thereof.”

The power thus conferred, is vested in the executors as such, to be exercised by virtue of their office, for the benefit of creditors, among whom the fund was to be distributed. The direction to raise money out of the land without specifying how it was to be raised, conferred the power to sell it. In the case of Bateman vs. Bateman, (1 Atk’s, 421,) the testator directed that if his personal estate and house and land at W. should not pay his debts, then his executors were to raise the sum out of his copyhold estate. It was held, that the power thus conferred, authorised a sale of the copy-hold estate. See also, 2 Story’s Eq. 324.

But in relation to the lands out of which the money in this case was to be raised, there is much stronger reason for- saying that a sale of them is authorised, than exists in the case above referred to. In this case the lands were wild and unimproved, and no effectual means of raising money out of them for the payment of debts existed, but by their sale. And as the great and leading principle which applies to the construction of other parts of a will, should also be applied to the construction of powers conferred by it, to wit, to ascertain and carry into effect the intention of the testator, we cannot be mistaken in the conclusion that it was his intention by this clause, to confer a power of sale. The case of Wooldridge vs. Watkins, (3 Bibb Rep. 350,) is not an authority against the power of sale in this case. In that case the will left it to “his executors to sell or exchange his real estate as they might judge necessary for the advantage of his estate.” No sale of the estate was directed either by express words or by implication. They were to sell or exchange as they might judge necessary for the advantage of the estate. It might not be for the advantage of the estate to do either, so that no disposition of the estate is unconditionally directed to be made. In that case too, there was no interest vested in the executors, no trust created by the will, so that any person interested in the execution of the power, could come into a court of equity and enforce it. But the case is wholly different where money to pay debts is directed to be raised. In such case, the creditors are interested in the execution of the power, and have a right to require the executors to fulfil the trust for their benefit. In a case like this, by the rule of the common law, a surviving executor would be authorised to execute the power.

By the statute, 21st Henry 8, ch. 4, acting executors, when the others refuse to act, are put upon the same footing with surviving executors. The statute provides, “That, when part of the executors named in such testament, directing such lands, &c., to be sold by the executors, do refuse to take upoif himself or themselves the administration and charge of the same testament, or last will, that then all bargains and sales of any such lands, &c., made by him or them only of said executors, that so' doth accept,' shall be as good and effectual in law as if all the said executors, so refusing- the administration of the same will, had joined in such bargain and sale.”

This brings us to the consideration of the question, what shall be regarded as a refusal, within the-meaning of the statute?

It is contended by the counsel for the defendant in error, and so1 the circuit court charged the jury, that a refusal must be made a matter of record, otherwise- a sale- by the acting executors would be void.

It is certainly true- that the Spiritual court- in England will not commit the administration of an- estate to another, until the refusal of the executor to act has been recorded in the court. 1 Williams Ex’rs, 153: Went. Off. Ex’r, 88, 14th Edition. But if the executor send a letter to- the Ordinary, by which he- renounces, and the refusal be recorded, it is sufficient. 1 Williams Ex’rs, 153. If administration be granted to another,- before the executor has renounced of record, it is absolutely void. Tol. Ex. 44, 93, 120. The reason is, that in England the executor’s title is derived from the- wiM, and does not depend upon the grant of -letters testamentary. A title to the goods and chattels is vested in- the executor immediately upon the testator’s death. Toller Ex. 40. Until he renounces, that title cannot be divested. But if a grant of administration, before such renunciation, were' valid,- it would vest the title to-the goods in the administrator, and thereby divest the executor of Ms title, in violation of the principle above stated. It follows that administration granted before such renunciation is void.

But in this State, North Carolina, Virginia, and, perhaps other States of the Union, the law in this particular has been changed.

By the act of 1715, ch. 48, sec. 4, it is provided, that “no person shall enter upon- the administration of any deceased person’s estate until he has obtained letters of administration, or letters testamentary,- under the penalty,” &c.

By the 5th section, it is provided-, that letters testamentary should not issue, until the executor took an oath to. perform the will of the testator.

By the act of 1813, ch. 119, sec. 3, (Car. & Nich. 79,)’ it is provided, that “all executors, of every description, shall, before they presume to enter upon the administration of any estate whatever, enter into bond and security in the same way that administrators are required to do.”

By these acts, executors are prohibited from meddling with the festate until they obtain letters testamentary, give bond and security, and swear to perform the testator’s will. So that the will alone confers upon the executor no title whatever, and if he neglect to prove the will, qualify, and give bond and security, the court of probate may act upon the estate, and' grant letters of administration. 4 Yer. Rep. 16. No formal renunciation is required; but letters of administration are valid without such refusal.

From this comparative view of the powers of the courts of probate, in England and this country, it may be seen that, however, the question under consideration may be considered in England, here, no record evidence of refusal to act is necessary. Indeed, it is questionable whether it be necessary in England. The evidence of refusal, that the Ordinary will require, before he will grant administration, is not necessarily the only evidence that would establish such refusal, so as to validate a sale made by acting executors. All the authorities upon the subject of the necessity of refusal being of record, are applicable to the question of the power of the Ordinary to grant administration. And we have seen, that a mere letter which he orders to be recorded, will be sufficient. Andas there is much more reason for requiring a solemn act of renunciation of record, in reference to the question of granting administration, than need be demanded to make valid the acts of co-executors who are acting in the administration of the estate; and as in the former case, a mere letter will do; it would seem, that in the latter case any act, in pais, evidencing such refusal, would be sufficient. And as there is no case in which it has been held, that a sale by acting executors was void because the co-executor, who did not join in the conveyance, had not refused of record to act, a strong presumption exists, that the courts would not so decide. There is no reason why any other satisfactory evidence wall not be sufficient. The statute does not prescribe the mode of proof; for the fact, that before the passage of the statute, the Spiritual court had adopted the rule, that a renunciation must be of record, in order to their action in granting administration, is a very slight circumstance to prove that the statute meant to require the same proof in reference to a very different subject; and one in relation tc which the reason for adopting the rule did not exist. But be this as it may in England, it would certainly be extremely inconsistent in us to require stronger and more authentic evidence of a refusal to act, in order to make valid a sale under the statute, by acting executors, than we require in order to make a grant of administration valid. And we have seen that a neglect to give bond and qualify, is sufficient in the latter case. So in the former, neglect is evidence of refusal, for while he neglects, he refuses.

This view of the subject is supported by several cases in the United States, and is opposed by none. In the case of Gaddy & Knox vs. Butler and wife, (3 Munf. Rep. 345,) the court of appeals of Virginia decided, that a renunciation need not be of record to justify a deed made by the executors who acted; and that a refusal may be found, either in a declaration to that effect in pais, or presumed, as in other cases. It is argued, that this case is not an authority, because the judgment was reversed, the special verdict having found that the deed was executed by a part of the executors, the other never having taken upon themselves the burthen of the execution of the will, and never relinquished their right so to do; and the judgment of the court below having been in favor of the deed, its reversal shows, that upon the facts stated in the special verdict, the court did not consider the acting executors had power to make it. But upon looking into the opinion of the court, which is very short, it will be seen that the jury did not find a refusal of the other executors, which, they say, was necessary to be found; but that the evidence upon which they were authorised to find such refusal need not be a renunciation of record, but that it might be found either from declarations in pais, or presumed, as in other cases. The judgment of the court below was reversed, because the verdict was too defective in this particular. But a venire facias de novo was awarded, which is conclusive that the court considered the evidence sufficient to have justified the jury in finding a refusal. Had they not thought so, they would not have remanded the cause for another trial; for it was distinctly found by the jury, that the executors, who did not join in the deed, never relinquished their right to take upon themselves the burthen of the execution thereof. So that it is perfectly clear, that if the court had deemed an express relinquishment necessary, a judgment final would have been rendered for the defendants.

The case of Wood vs. Sparks, 1 Bat. & Dev. Rep. 389, is a very strong authority upon this point. I have not that case now before me, but I examined it last winter, and was impressed with the clearness and force with which the question was discussed by Gaston, one of the most enlightened and able judges of this day.-— The court held, that a neglect to qualify, was a refusal, prima facie, and that a deed executed by acting executors was valid.

Fortified by these authorities, and by our own convictions of the reason of the rule, especially under our system, we have no hesitation in pronouncing, that a neglect' to qualify is prima facie evidence of refusal, and will validate a sale by the acting executors.

2d. But it is contended by the defendants in error, and so the court charged the jury, that the recital in the deed to Catron, that John G. Blount and the testator had executed a deed for these lands to Elijah Robertson in 1789, which had never been registered and was lost, is evidence of an outstanding title, which would prevent a recovery in this case. We need not stop here to investigate the question, what effect will be given to such recitals in a deed; it is sufficient for the present purpose to say, that the covenant of warranty in the deed of the executors to Catron estops the defendant here from setting up an outstanding title against it. The record shows that he claims title to this land as a devisee under the will, by virtue of which these executors acted in making the deed. He is, therefore, a privy in estate, and can no more set up a title in opposition to a deed of the executors, made -in pursuance of the will, than if the deed had been made by the testator himself. And it will not be pretended, that if Thomas Blount had executed the deed with these recitals, either himself, his heirs or devisees could set up an outstanding title against the covenant of warranty, so as to defeat the very title created by his deed. There was, therefore, error in this part of the charge of the court.

3d. But it is insisted that the recital' in the deed, that it was made in satisfaction of a demand for locating services performed by Elijah Robertson,and to supply a lost deed which had been executed to him for that purpose, which claim, in part, had been assigned by the heirs of Elijah Robertson to John Catron, to whom the deed was executed, does not present a case falling within the power conferred upon the executors to sell land for the payment of debts; and therefore the deed is void.

Upon this question we have very great difficulty, and we are unable to arrive at any satisfactory conclusion. The case has been argued elaborately, and with much ability on both sides, but other questions have been deemed more important, and have occupied the chief attention of counsel. We, therefore, decline the discussion, and the decision of this last point at this time, that it may receive hereafter that attention its difficulty and importance demands.

Let the judgment be reversed, and the cause be remanded to the circuit court of Shelby county, for a new trial to be had therein.  