
    
      Hendricks v. Mendenhall.
    
    The premises in the plaintiff’s declaration mentioned, are parcel of a tract of 150 acres of land, granted by the State of North Carolina to one Patrick Boggan, on the 19th of October 1783. The same 150 acres were conveyed by said Boggan to one Thomas Wade, sen. on the 23d October 1784. The premises in the plaintiff’s declaration mentioned, were by said Thomas Wade, sen. conveyed to his son George Wade, by deed of gift, on the 26th August 1786. Thomas Wade, sen. died before George Wade, leaving the said George Wade, Thomas Wade, jun. and Holden Wade, his only sons and heirs at law. George Wade died unmarried before the year 1790, leaving the said Thomas Wade, jun. and Holden Wade, his only brethren and heirs at law. Mary Henrdricks, wife of James S Hendricks and Sally Wade (they all being lessors of plaintiff) are the only heirs at law of said Holden Wade, who is also deceased, and the defendant, William Mendenhall, is in possession of lots No. 7 and 19, in the plaintiff’s declaration mentioned.
    Thomas Wade, sen. before his death made a will which was duly proven, whereby, among other things, the said Thomas Wade, jun. the said Holden Wade, and three other persons, were appointed executors thereof with authority to them generally to sell and dispose of the testator’s real property for the payment of his the testator’s debts. Said Thomas Wade, jun. and Holden Wade undertook the execution of said will, and were the only acting executors thereof. After the death of the said Thomas Wade, sen. in the year— a judgment was obtained by one Eveleigh against the said Thomas Wade, jun. and Holden Wade, as executors of said Thomas Wade, sen. in the County Court of Anson county, of the term of , of the same year, for the sum of . Said judgment was however taken by confession, without the finding or acknowledgment of any plea in favour of said executors upon said judgment. No scire facias issued to the heirs of said Thomas Wade, sen. to show cause why execution should not issue upon said judgment against the lands of said Thomas Wade, sen. then descended in their hands. A writ of scire facias upon said judgment nevertheless did issue, returnable in said County Court to the term of July in the year 1790; by virtue of which a levy and sale regularly took place of a variety of lands. In pursuance of the sale so made, one William May, then sheriff of said county of Anson, made and executed a deed to the purchasers. At the same day and place of making said sheriff’s deed, the said Thomas Wade,jun. and Holden Wade, on the back of said sheriff’s deed, made, executed, and delivered, under their respective hands and seals, an instrument of writing in the following words, viz.
    “ To all to whom these presents shall come. Know ye, that we, Holden Wade and Thomas Wade, as well for ourselves as the other executors and executrix of Thomas Wade deceased, do hereby agree to and confirm the within deed, made and executed by William May, sheriff of Anson county, for the intent and meaning therein specified, by virtue of the power vested in us by the last will of T. Wade, deceased. In witness whereof, we have hereunto set our hands and seals the day and date of the within presents.” Signed by Holden and Thomas Wade, as acting executors of T. Wade, deceased.
    The tract of 150 acres, first before mentioned, is the same tract of 150 acres which is mentioned and described in the said deed of William May. The same 150 acres were conveyed by the purchasers at the said sheriff’s sale to one Joshua Prout, on the 28th June 1798. On the 19th July 1809, said Joshua Prout conveyed lots No. 7 and 19, parcel of the said 150 acres and also parcel of the premises in the plaintiff’s declaration mentioned, to one George Wade (uncle to the George Wade before named and brother of Thomas Wade, sen.) On the 21st January 1811, said George Wade who purchased of Prout, conveyed said lots, No. 7 and 19, to one John Coleman, who on the 9th day of May 1812, conveyed the same lots No. 7 and 19, to the defendant William Mendenhall.
    
      M'Millan, for the defendant,
    contended, that the endorsement on the deed amounted to an estoppel as to those who signed it, and all claiming under them; and cited Cro. Eliz. 362. 2 Cro. 756, 769.
    
      A. Henderson, for the plaintiff.
    The executors had no design to estop themselves of their own property, but only of that which they held in their representative character. It was in this character they endorsed the deed, and not as heirs at law. Any other construction would be to make a contract for the parties. Besides, there was nothing on which the estoppel could operate; for the sheriff’s deed was void, because there was no scire facias against the heirs, and no verdict on the plea of plene admin.
    
    
      The cases cited are of person acting in their proper capacity. But it is different when they act in a representative character.—Comyn's Dig. Tit. Estoppel Letter C.
    
   Seawell, J.

We are called upon in this case to say whether the plaintiffs have made out a legal title to the premises in question? and it is admitted they have, unless. Holden, their father, parted with it in his lifetime. The only act done by him was an endorsement upon a sheriff’s deed, in which the premises were conveyed by the sheriff to a purchaser under an execution, which by the statement appears unsupported by any judgment. The sheriff therefore, had no authority to sell. By this endorsement the father declare that in virtue of the authority derived from the will of his testator, he confirms the sale. These if not the words, are at least their substance. Now it may be laid down as the general doctrine in relation to the execution of powers, that it is not necessary to recite that the act is done in virtue of the power ; but that it is sufficient execution if it can be done only in virtue of the power; for though the form of executing may not suggest the execution of a power, yet the purpose of the act done, can only be explained by resorting to the power : and the maxim is, that it is immaterial whether the intention be collected from the words used or the acts done. Quia non refert au quis intentionem suam declaret, verbis, au rebus ipsis vel factis. And on the other hand, it is equally clear, as this intention is to guide and give efficacy to the act, that where a party has both power and interest, and he does not act purporting to be in virtue of his interest, that he shall be held to intend that, and not to exercise his power.—Sir Edward Cleaves's case and 10 Vesey, jr. 346, present Lord Chancellor in the case of Maundrell, 2 Maundrell.—And this therefore at once disposes of all that has been said upon the subject of estoppel. For if the endorsement only professed to be in execution of a power, the party making it can only be concluded from denying any of the facts affirmed by him; and if it should be suggest ed that it may operate as the confirmation, the answer has already been given, that the endorsment excludes the idea of the exercise of any personal dominion. And indeed it is essential to the operation of every confirmation, that there should be some estate, though voidable, for it to act upon ; the maxim there being, confirmatio est nulla, ubi donum precedens est invalidum, it may make a voidable estate good, but can give no effect to one that is void.—Co. Lit. title Confirmation.

The sheriff could convey by his deed nothing but what old Wade had, and he having nothing, the deed was void. Whatever title is claimed, from the effect of the endorsement, is at last referrible to the testator’s will. The executors as trustees are only as instruments to effectuate the devise. The father of the plaintiffs has therefore done nothing which, in law, has passed his interest, and whether he ought in justice and equity to be restrained from asserting it, must be referred to those courts, to whom the jurisprudence of our country has confided the power of deciding. It may turn out that the father was guilty of a fraud; or it may be the case, he acted under a mistake. If the former, he would be compelled to convey. If the latter, it would be unjust he should lose his land.

Taylor, C. J.

The land sued for in this action was no part of the estate of Thomas Wade, sen. at the time of the judgment against his executors. He had conveyed it in his lifetime to George Wade, upon whose death it descended to his brothers Holden and Thomas Wade. The recital in the sheriff’s deed, therefore, that Thomas Wade, sen. was seised in fee of that tract when the execution was levied, is not founded in fact. But it is contended by the defendant that this land being sold by the sheriff, and his sale confirmed by the executors, their heirs are now estopped to claim it. But I am of opinion that this would be to give a forced interpretation to their endorsement on the deed. For from the very terms of it, they profess to act only in pursuance of the power given to them by the will of their father, viz. to sell and dispose of his lands for the payment of his debts. And it seems an unlikely circumstance that they should intend to confirm the sale of a tract of land belonging to themselves, for the same purpose, when it was not derived by descent from the father. It is possible that in a sale of so many tracts, not less than eight or nine, comprehended in the same deed, they might not have distinguished this one, which certainly the sheriff had no right to sell. Nor do I think that the cases relied upon prove that the plaintiffs are estopped to claim.—They proceed on the common principle that a tenant shall not deny the title of his landlord. But the question here is, whether persons acting in the character of executors, and with an express reference to the power conferred by the will, shall convey lands not belonging to the testator ? I think the deed is not so to be understood, for Lord Coke says that every estoppel must be certain to every intent, and not taken by argument or inference;—that it ought to have a precise affirmation of that which maketh the estoppel.—1 Co. Lit. 352. b.

Judgment for the plaintiff.  