
    JANUARY TERM, 1837.
    Vick and Rappleye v. The Mayor and Aldermen of Vicksburg.
    A deed or written grant is not required to 'establish a dedication of commons or highways to public use.
    The whole doctrine of contracts and grants' is based upon the idea of parties capable of contracting; and although in reference to the public and their claim to easements in land, a looser rule has been adopted, yet the relaxation is not considered to go to the extent that there can be a dedication er grant, without some party beneficially interested in it, besides the grantor.
    Parties are necessary to a dedication, as well as to a private grant.
    When the owners of urban property have laid it out into lots with streets and avenues intersecting the same, and have sold lots with reference to such plat, it is too late for them to assume a general and unlimited control over the property thus dedicated to the public.
    The acts of a proprietor, within the limits of a city or a village of known and established boundaries, and peopled with inhabitants by which a dedication may be established, must be either in themselves, or from the relation of the parties, of an open, palpable, deliberate and public character. The dedication which is considered to rest on implication, such as assent and user, sale at increased value, &c., requires that the testimony and proof which «vince the appropriation, should be of the same character, and absolutely inconsistent, according to the rules of law and the obligations of good faith, with any other supposition.
    The interests of those beneficially entitled to easements, or dedications of a public, or charitable, or religious character, will not be permitted to lapse or fail, for want of what is technically called a person, to take the legal title. The rule is in favor of the equitable or beneficial claimant, who is the favored party ip the view of the law.
    The mere intentions of the proprietor cannot amount to a dedication of urban property.
    The power of the probate court to grant letters of administration with the will annexed is a limited authority.
    The act of appointment must state a case which gives the court jurisdiction, or the appointment will be null and void.
    In the partition of an estate among heirs and devisees notice must be given to all parties interested, or they will not be bound by the acts of the court making partition; nor will a sale of real estate under an order of the probate court, divest the title of the heirs, who have not joined in the petition for a division, nor had notice of the proceeding.
    APPEAL from chancery.
    The Mayor and Aldermen of the city of Vicksburg filed their bill in the court of chancery, to quiet their title to a lot of ground designated as Commons and Levee street on the recorded plat of said town, and to enjoin and restrain the appellants from prosecuting several actions of ejectment, pending in their favor against the complainants below, in the circuit court of Warren county, for the recovery of the same tract of land, which, from the upper to the lower end of the city, occupies the entire space between the front row of lots and the Mississippi river.
    This ground was alleged to be public property, dedicated to public uses. The bill prayed a perpetual injunction to enjoin the appellants from building, or raising other obstructions on the said tract of land.
    The title to the land in question was claimed in the bill to be vested in the complainants, as trustees of the rights and interests of the citizens of Vicksburg by virtue of certain acts of dedication, the statutes of the state constituting them a body politic.
    It appeared from the bill, answer and exhibits, that, in the year 1819, Newit Vick, being the owner of two tracts of land in Warren county lying on the Mississippi river, proceeded to lay. off a town on what is now the site of Vicksburg. It was alleged in the bill that he laid out upon the uppermost of said tracts, nine squares of town lots, with streets and avenues intersecting the same, and made a plat (since lost) on which he designated the ground in controversy as a public street and commons for the use of the inhabitants of Vicksburg, and solemnly dedicated the same for that purpose. The bill also alleged that lots were sold by Vick with reference to said plat, which was in pencil marks.
    Newit Vick died in 1819, and by his will directed “two hundred acres on the upper part of the uppermost of said river tracts to be laid off into town lots by his executors,” to pay his debts and other engagements, in preference to his other property. He appointed his wife, Elizabeth Vick, his son, Hartwell Vick, and his nephew, Willis B. Vick, his executrix and executors.
    Elizabeth Vick died a short time after her husband, and Hart-well Vick appeared in the orphans’ court of the county of Warren, at its October term in 1819, and refused to take upon himself the executorship of the estate, and renounced the same.
    Letters testamentary were granted to Willis B. Vick, who did not, during his continuance in'office, lay out said 200 acres into lots, nor dispose of any laid out by the testator.
    In 1821, Willis B. Vick petitioned the orphans’ court to be discharged from his executorship, which was refused by the court; from which decision John Lane, one of the distributees in right of his rvife, the daughter of the testator, appealed to the supreme court of Warren county, which court discharged Willis from the executorship of the estate; and in October, 1821, the orphans’ court granted to John Lane letters of administration with the will annexed; shortly after rvhich Willis Vick died.
    In 1820, Hartwell Vick applied to,the orphans’ court for letters testamentary, but declined to give security as the law directs; "which application was rejected by the court. He applied again in January, 1823, upon the ground that the grant of letters to Lane was void, alleging that he had not renounced his right to qualify after the death of Willis Vick. This application was also refused by the orphans’ court, and an appeal prosecuted to the supreme court of the state, which court affirmed the decision below, in 1824.
    The bill alleged that, in 1821, Lane, as administrator, procured an order of the orphans’ court and proceeded to sell one hundred lots in the town of Vicksburg, to pay the debts of the testator; that said Lane confirmed the plan of the town of Vicksburg, as made by Newit Vick; that said lots were sold by Lane with reference to the dedication of said public street and commons. That at the sale, several of the lots were purchased by the children and heirs of the testator, and that they received conveyances from said .Lane, as administrator, in reference to said dedication.
    The bill further alleged that, after the payment of the debts of the testator, the remainder of said 200 acres resulted under said will, to all the heirs of Newit Vick, consisting of thirteen children, who had a right to take the land not then laid out into lots, instead of the money into which it was directed to be converted, elected to take the land, and that John Henderson and his wife, a daughter of Newit Vick, Henry Morse and his wife, also a daughter of Vick, and Mary Vick, another daughter of said Newit, petitioned the orphans’ court in May, 1823, for the appointment of commissioners to divide the residue of said land, which petition was opposed by Lane, but granted by the said court. Lane prosecuted an appeal, but the decision below was affirmed, and the commissioners proceeded to divide said land into town lots, apportioned the same among the heirs, and returned a map of said town with a report of their proceedings, Vhich was received, approved and recorded at the November term of said court, 1824.
    The bill of complaint alleged, that the heirs of Newit Vick had fully recognised by their acts and conversations, the dedication of the commons by their ancestor, and the power of Lane to convey said lots as administrator, and to renew the dedication.
    The appellants denied in their answers, any right or title in the complainants (below) to the easement in controversy; denied the existence of any grant or dedication whatever, from Newit Vick, in his lifetime; that he never sold but one lot, and allege, that was not conveyed with reference to the commons.
    
      The appellants further averred, that Newit Vick, revoked, and repudiated his own intentions and unfinished plans of laying off. a town, by his will, leaving it entirely at the discretion of his executors, to lay off the 200 acres as they should see fit. The answer denied that John Lane was ever administrator of the estate of Vick, and if administrator, that he had any right by law, or power under the will, to make the dedication claimed. They also denied any power in the commissioners appointed by the probate court, or in that court itself, to make the dedication. The appellants also denied any recognition or confirmation by them of the acts of the commissioners, or of John Lane.
    It was admitted by both parties, that William Vick did not come of age till 1828, John W. Vick in 1827, and that Newit Vick, Jim., is still an infant.
    It ivas admitted, that ejectments rvere instituted for the commons in controversy, in 1831, by virtue of the claim derived to Rappleye, from William and J. W. Vick, and that the matter was in litigation from that period to the commencement of this suit. That lot 1, sold by Newit Vick, to one Rogers, included lots 1 and 2, on the present plat of Vicksburg; that said lot is norv owned, and has been for several years, by William Hi Sims, and A. B. Reading, who for the same time occupied Jhe land in front of said lots towards the river, under the lease of the corporation.
    It was proved by the deposition of J. Templeton, that Nervit Vick, in 1819, laid off lots in Vicksburg, beginning at a point bn the South bank of Glass’ bayou, a short distance from its mouth, at a point designated on the plat of said town, by lot No. 1, said point being the northwest corner of said lot No. 1, as he was informed by Vick, running from thence .south, thence east, north and west, including, as he understood, as far east as Cherry street. Witness testified, that he had heard Vick declare, that the ground in front of what are now lots 1, 32, 33, 64 and 65, and betAveen said lots and the river, was to remain open for the public use as a street and commons. He had also heard Hartwell Vick make a similar declaration, and represent them as coming from his father'.
    In 1824, witness was employed as a surveyor by Lane to lay off 200 acres into toAvn lots; being also one of the commissioners to divide said lots among the heirs. That the commissioners laid out the lots south of Jackson street, leaving a narrow strip of ground between the first row of lots and the river, as a public street and commons. Was present at a sale by Lane in 1832, and heard him declare, that the ground in front of lots No. 1, 32, 33, 64 and 65, were left as commons. This was the first public sale.
    John Lane testified, that he sold the lots with reference to the commons, and that the appellants had recognised the commons by receiving and executing conveyances with reference thereto, as designated on the plat of the town, and by claiming the lots according to the division. Brown, the cryer at the sale, stated, that Lane represented to the bidders, that said strip of ground was reserved as commons. The ground left by Lane as commons had not previously been used as such. '
    Walcott testified, that Newit Vick declared to him, at the laying off of said lots, that the land in controversy was reserved as commons. Deponent applied to Vick to purchase half an acre, including lots 189 and 190; but Vick stated it was public commons, and would not sell at any price. Knows that Vick offered to sell lots with reference to his map or plat. Rogers purchased lot No. 1, for 470 dollars 50 cents, and had it not been a front lot, could not have been sold for more than half that sum.
    Deponent stated, that J. H. Center contracted for a half an acre lot of Vick with reference to the plat of the town, and built a house thereon in 1818 or 1819, but does not know that he ever paid for it, or obtained conveyance. Vick had not finished laying off the town at the time of his death.
    The deposition of Levi Mitchell, on the part of the appellants, stated, that Vicksburg was not spoken of as a town, until the sale in 1822. Deponent never heard of the commons till then: stated that the claim of the appellants to the land in controversy was publicly known as early as 1829.
    The tract of land on which is now the site of Vicksburg, was intended for a town by Vick’s will. This tract was an old, inclosed cotton field up to the time of the first sales by Lane, with the exception of what is now lot No. 1, and the centre lot on ■which there were houses, and a saw mill put up by Newit Vick, in 1819. Deponent never heard of the claim to the commons by the public, or any one, till after the first sale in 1822, nor was said land used as commons, until after that time. Lane’s declarations at the sales was the first he heard of the commons.
    The chancellor decreed according to the prayer of the bill, from which an appeal was taken.
    For a more particular statement of the case, reference may be had to the arguments of counsel which were written, and are given at length.
    For the appellants, Prentiss, Guión, Bodley and Harrison.
    The bill in this case sets forth that one Newit Vick, in 1819, commenced laying off a town upon a tract of land belonging to him, upon the Mississippi river, and that he did survey nine squares of lots, with streets and avenues, upon the upper part of said tract; that at the same time he made a plat (since lost) of said town, and designated thereupon the strip of land in front of lots 1, 32, 33, 64 and 65, as “ Public Commons,” for the use and benefit of the inhabitants, and did at the same time positively and solemnly dedicate and set apart said strip for said use, and did, till his death, recognise said dedication, and sell lots 1, 2, 9, and 10, in reference to said commons, at advanced prices. The bill further sets forth, that said Newit Vick died, in the autumn of said year 1819, and by his will reserved 200 acres of said tract to be laid off into town lots by his executors, and required the executors to sell the same to pay his debts, and for the benefit of all his heirs, appointing by said will Willis B. Vick, Hartwell Vick and his wife, his executors and executrix; that his wife died soon after himself, and that Hartwell, at the October term, 1819, of the probate court, refused and renounced the executorship, at which time letters testamentary were granted to said Willis B.; that said Willis B. did not lay out said 200 acres, or any portion thereof, nor sell any lots; that in 1831, a certain John Lane, husband of one of the distributees, upon the refusal of the probate court to discharge Willis B. Vick from the executorship, appealed to the superior court of the county, and that said superior court ordered said Willis to be discharged. The bill further, states that at the October term, 1821, of the probate court, letters of administration, with the will annexed, were granted to said John Lane; that in January, 1823, Hartwell Vick applied for letters, which were refused; that he appealed to the supreme court, and the judgment below was affirmed. The bill further states, that John .Lane, after obtaining letters as aforesaid, proceeded under the will, to lay off the town of Vicksburg according to its present plan, and in doing so, dedicated the land in controversy, on the whole front of the town, as a public “ Commons” or “ Landings,” for the use and benefit of the town; that said Lane sold lots at enhanced prices on account of the “ Commons,” and that the town has ever since enjoyed said Commons as a public easement. The bill further states, that after the sale of lots sufficient to pay debts, the balance was divided among twelve heirs, by commissioners appointed by the probate court, who made a plat of the town and recorded the same, which is the present plat. The bill further sets forth, that the land in controversy is essential to the commerce &c. of the town, and that all the heirs of Newit Vick have recog-nised the dedication of the same as made by Lane and others.
    The bill prays perpetual injunctions, &c., against defendants. ,
    Defendants in their answer deny any right or title whatever in complainants to the easement in controversy; deny the existence of any grant or dedication whatever from Newit Vick in his lifetime; deny that he ever sold but one lot, and deny that that was sold with any reference to commons. And they further set forth, that during the lifetime of said Newit, there was no town of Vicksburg, no inhabitants, and no public, to whom any dedication could be made; they aver that Newit Vick had barely commenced laying off a contemplated town, and had in no wise finished his plan thereof. And defendants further aver, that by the express provisions of his will, said Newit Vick revoked and repudiated all his own intentions and unfinished plans of a town, by leaving it entirely to the discretion of his executors to lay off the 200 acres as they should see fit. Defendants further call for proof of the express and particular acts of Newit Vick, which constituted the pretended dedication by him; defendants positively deny that John Lane ever was administrator of the estate of Newit Vick, and even if he was administrator that he had any authority whatever by law, or any power under the will, to make the dedication alleged in the bill; they also deny any power or legal right in the commissioners appointed by the probate court, or in the probate court itself, to make the dedication; they positively and particularly deny any recognition or confirmation by them or either of them of the acts of John Lane, or of the commissioners in the premises. They set forth the infancy of the devisees to the real estate, one being still an infant, to wit, Newit Vick, and the other two, Wesley and William, having come of age in 1827 and 1828. William and Wesley aver a continued claim by them to the land in controversy ever since they came of age. Defendants deny that they were ever present at any act of dedication of the land in controversy, or ever assented in any way, by word or act, to the claim of complainants. They further aver, that the land in controversy did not originally form any part of the town of Vicksburg; and in conclusion, they set forth a number of leases from complainants to private individuals of the premises in controversy; that said individuals have entered and enjoyed the premises embraced in their several leases, as private property according to the terms of said leases, and with the full assent of both complainants and the public, by reason whereof, defendants aver that complainants, even if they ever had any right to the land in controversy as an easement, have forfeited, extinguished and lost the same.
    The exhibits, depositions and proofs in the cause, show in substance the following state of facts: — That Newit Vick in his lifetime, viz. in 1819, commenced laying off a town on what is now the site of Vicksburg, which laying off consisted simply in running the lines of a few lots, and driving stakes at the corners, and making a plan thereof in pencil marks for his oAvn individual use. These lots were laid off as above described, down to lot 64 of the present plat, and as some of the witnesses think, as low as lot 65. The whole tract was at this time an open field, belonging entirely to said Newit. In social conversations with his friends, in relation to the prospective town, said Newit several times said, he intended 
      all in front of said lots as commons. At the time of his death, he had sold but one lot, to wit, lot No. 1, to E. Rogers, and he died seised in fee simple of all the remainder of the tract. At the time of his death, there were no inhabitants on the tract except Rogers, living upon lot 1, and one Center, a partner of said Newit, in a saw mill, who was living on what is now lots 9 and 10, merely as a tenant at will or sufferance. After Newit Vick’s death, things remained in the same situation up to the first sale of lots by John Lane, in 1821-3, more than two years. At this sale, John Lane undertook to dedicate a portion of the land in controversy to the public. Up to this period, the evidence is conclusive against any easement on the part of the public. The testimony of Mitchel, of Brown, the cryer at the sale, and of John Lane himself is united that no portion of the land in controversy had been used or claimed as a commons up to that period, either by the public or any one else. It is proved by complainants’ own witnesses, Brown and others, that John Lane at said sale made his pretended dedication, expressly by virtue of his supposed power under the will, and it was so understood and received by the public, who bought lots, not under the faith of, or in reference to any dedication made by Newit Vick in his lifetime, but entirely on the faith of John Lane’s dedication. The testimony is positive, that neither John Lane, nor the cryer, claimed, or thought of any pre-existing dedication. The evidence is conclusive also, that the public never thought of using or claiming any easement in the land in controversy, until after John Lane’s dedication, and their user and claim since, have been entirely predicated upon that.
    The proofs and testimony further show, that in 1824, commissioners were appointed by the orphans’ court, upon the application of some of the distributees, to divide the remainder of the 200 acres mentioned in the will and remaining unsold, among all the heirs of Newit Vick, whereupon the commissioners, and John Lane proceeded to lay off the balance of the 200 acres, during which process, they took upon themselves to dedicate the remainder of the land in controversy as “ Commons,” and then proceeded to apportion among all the heirs of Newit Vick, the lots as laid off.
    
      The testimony shows, that since the dedication by Lane, the public have used and claimed the land in controversy as a “ Commons” belonging to the town of Vicksburg, except so far as eifected by the leases made by the corporation, and except also, in front of lot No. 1.
    The testimony further shows, that in 1829, William and Wesley Vick, two of the defendants, set up publicly their claim to the same land, as a part of their father’s estate, and in pursuance of said claim, conveyed a portion thereof to the heirs of Hartwell Vick; that in 1830, another portion was conveyed to N. H. Rap-pleye, both of which conveyances are filed as exhibits to defendant’s answer. In 1831, suit was commenced in prosecution of defendant’s claim to the land in controversy, which suit has ever since been diligently prosecuted in the courts of justice, and publicly known, as appears by the statement of facts, agreed upon by counsel and filed as testimony in the case. The evidence in the cause, and the admission of counsel aforesaid, further show that a number of leases have been made during the last four or five years, by complainants and their predecessors, of a great portion of the premises in controversy to private individuals, who, with the assent of the corporation and the public, have entered upon and enjoyed the same hr conformity with their leases, and to the extinguishment of any public right, even if such had existed. The testimony proves a continued claim by defendants to the land in controversy since 1S29, adverse to the claim of complainants.
    We will now proceed to examine the validity of complainants’ claim, and in doing so, we will investigate every source from whence it can possibly be derived.
    1. Have complainants a claim to the easement in question, by prescription? They have not — because sufficient time has not elapsed since the user commenced. Also, because defendants have been minors, and under legal disability.
    As to time necessary to prescribe for right of way in public. Vide Mathews on Presumptive Evidence, 333, et infra; 2 Pickering, 162; 1 Campbell’s Rep. 262; 3 Kent’s Com. 450, et infra-, 3 Dane’s Abr. 252.
    
      2. Has there been an actual grant or dedication to complainants of the easement in question by any one authorised to make it? First, did Newit Vick, who was the acknowledged proprietor of the soil, make any dedication of the lands in controversy or any portion thereof?
    A dedication of a way to the public must be made openly and deliberately. Roscoe on Ev. 16: 1 Campbell’s Rep. 262; 1 Green-leaf, 111.
    The mere surveying or laying off lots, with a contemplated street between them, conveys no right until such street is actually thrown open to the use of the public, or lots are sold in reference to such plan, and till such sale or user, contemplated streets remain the private property of the proprietor of the soil. 1 Wendell, 263, 270; 4 Cowen, 542.
    According to the case in 1 Wendell, no right of way had accrued at- the death of Newit Vick, unless a private right attached to the single lot that was sold, to wit, lot No. 1 in Square 1.
    But put the question again. Did Newit Vick in his lifetime make a valid grant or dedication of the land in front of the tier of lots north of Second East street? Of course there can be no pretence of any further dedication by him. To test the question, let us ask another. Could not Newit Vick at any time before his death have-changed his.intention of laying off a town, enclosed the lots he had already laid off, down to the river bank, and enjoyed the same as his private property, free from any right or claim from the public? If he could have done this, (and who can doubt that he could?) then the answer to the first question must be, that Newit Vick did not in his lifetime make any valid grant, or dedication to the public, of the strip of land in front of the lots north of Second East street.
    Again, suppose Newit Vick had sold all the lots laid off by him, with a right of way or common on the strip of land in front of them, and had afterwards purchased up the lots again, the moment he became the proprietor of the lots,.the easement or right of way would have become extinguished by the unity of possession. The principle of law being, that unity of possession extinguishes the right of way or other-similar easement. 3 Kent’s Com. 449; 2 Dane’s Abr. 690, c. 68, art. 2; 3 Ibid. 279.
    If then, unity of possession would extinguish a right of way already in existence, a fortiori, it would prevent the commencement of such right so long as such unity of possession continued. But during the whole lifetime of Newit Vick there was in him a unity of possession of the lots, to which it is pretended this common or right of way was incident. “To constitute a street or public highway, it is necessary it should be laid off and used as such, for it is the use which makes it a highway.” 2 Bay’s Rep. 282; 6 Peters, 438-9.
    There are but two ways by which the public can acquire a right to such an easement as the one in question.
    1. By absolute grant or dedication by the proprietor of the soil.
    2. By a user on the part of the public, with the assent of the owner of the soil, which will operate by way of estoppel, and prevent the owner from denying that there was a grant or dedication.” This is the doctrine laid down in the case of the City óf Cincinnati v. The Lessee of White, 6 Pet. S. C. Rep. 431. Now we have shown, there was no grant or dedication by Newit Vick, for even his imaginary town extended in his lifetime only to Second East street, and in regard to that, he had only expressed his intention of leaving “commons” in front. During Newit Vick’s lifetime there was no user of said commons on the part of the public, for it was an impenetrable canebrake.
    Newit Vick’s private intentions as expressed to his friends, cannot be received as evidence of a grant or dedication to the public.
    Even had Newit Vick laid off the whole of his town into lots, streets and commons, spread his plan upon a map, and published to the world his intentions, still would any right have accrued to the public, or would they have acquired any easement in such proposed .streets and commons? The public could have acquired no such rights until the streets and commons were laid off in fact as well as on paper, until lots had been sold or leased in reference to such easement, or until the public had commenced using such .easements with the assent of the owner of the soil.
    
      Newit Vick’s plan of a town at the time of his death was inchoate and incomplete, subject at any time to be abandoned, and the contemplated town to be turned into a cotton field. His intentions were ambulatory, And as the sole argument of dedication by Newit Vick, as far south as Second East street, arises from pretended proof of his avowal of intention so to dedicate, let us examine how that intention was considered by himself. That he did not consider himself concluded by anything he had done in his lifetime in reference to laying off the town is evident from the fact, that in his will he leaves the whole tract of 200 acres to be laid off into town lots by his executors at their discretion. Whatever then may have been Newit Vick’s own views and plans in laying off the town, he expressly abandons and revokes ■them in his will, and submits the whole matter to the discretion of his executors. This revocation of his own unfinished plans and intentions, occurred before any right had accrued to the public, by reason of a user of the casement in question with or without the assent of the owner of the soil, for there is not a particle of evidence or pretence of any user of the easement in the lifetime of Newit Vick.
    The case of Barclay and others v. Howell’s Lessee, 6 Peters, 499, only decides that a dedication to public uses may be made, so that the right can exist before the use commences. This does not touch the present case, because we have shown that no dedication ever was made by Newit Vick. So in the case of The City of Cincinnati v. White’s Lessee, there was an absolute specific public grant, by persons capable in law of making the grant.
    The tract of land, then, comprising the present town of Vicksburg, as well as the tract in controversy, upon the death of Newit Vick, came into the hands of his representatives, unincumbered by any right or easement in the public, and liable to follow the same course of administration as the other lands of the testator, except so far as they might be affected by the special power given in the will to the executors and executrix. The conclusion is inevitable that complainants can derive no shadow of the title to the easement in question from Newit Vick in his lifetime.
    II. This bring us to the real ground of controversy, to wit, the acts of John Lane in his professed capacity of administrator with the will annexed. ■
    The bill, in fact, rests the whole claim of complainants upon the dedication of John Lane, and but for the averment of such dedication by him, the bill would contain no case, and would be dismissed at once upon demurrer, If, then, we can dispose of the acts of John Lane in this behalf, and show that those acts were without authority and absolutely void, we shall, in fact, have disposed of the whole bill.
    We will proceed then to demonstrate,
    1. That John Lane never was administrator of the estate of Newit Vick, and that consequently his acts as such, were the acts of a stranger and absolutely void.
    
    2. That even if John Lane was legally administrator, yet that the power of laying off a town given in the will, did not devolve upon him-, that he could not execute said power, and that his attempted execution of said power was entirely void.
    
    
      3. That -even if John Lane was legally qualified to execute the power, yet that the power itself did not authorise the appropriation or dedication of “public commons;” that in dedicating public commons the power was exceeded, and that such excess was void.
    
    
      ■ 1. That John Lane never was administrator. Willis B. Vick and Hartwell Vick were surviving executors upon the death of the widow. Upon their renunciation, administration cum test, annex. might have been granted by the probate court. But till such renunciatiop, the grant of administration was a complete nullity. Coke’s Institutes, 397; 3 Bac. Abr. 19. 42,43; 1 Mod. R. 213; Toller, 120,44; 5 Wend. 227,8; 3 P. Wms. 251; 3 Burrows, 1465.
    But Willis B. Vick, instead of renouncing, accepted the trust and’qualified as executor, after which he could not renounce or surrender the trust. 9 Coke’s Rep. 37, b.; 1 Ventris, 330; Went-worth, Off. Exrs. 90; Hardress, 111; 1 Comyn’s Dig. 461; Modern Rep. 213, 214.
    Willis B. Vick applied to be discharged, and the court refused to discharge him. But even if Willis B. Vick had legally surrendered the trust, or been discharged by the court, still administration could not have been granted without a new refusal by Hart-well Vick, the other executor. 9 Coke’s Rep. 37; 1 Salkeld, 307; Iiardress, 111. “ W. proves will and H. refuses; W. dies; adminis•tration shall not be granted during H.’s lifetime without a new refusal.” Vide Comyn’s Dig. Admr. B. 1 page 492, and references. But Hartwell Vick never did renounce after Willis B. Vick became executor. Renunciation cannot be in pais but must appear of record. Toller, 42. It appears, then, that at the time Lane was appointed administrator, there was one executor who had qualified and was in nowise discharged and under no incapacity, and another executor, who, so'far from having renounced, had his application for letters testamentary then pending upon the minutes of the court. It is clear that the grant of administration to Lane, under these circumstances, was ipso facto void, a mere nullity.
    
    2. But admitting for the sake of argument, that Lane was legally appointed administrator cum test, atm., still we say that the power given in the will to the executors to lay off a town could not and did not devolve upon the administrator, and his attempted exercise of that power was a nullity.
    ■ Except for the statute in Turner’s Digest a naked power given to several executors could not be exercised except by the whole number. This is the common law doctrine. That statute authorises one executor to execute powers given to several, but does not extend to the administrator cum test. ami. The statute in the Revised Code on this subject was not then in force, and could not affect the matter. The power to sell for the purpose of paying debts, did not pass to Lane; for at the time his letters of administration were granted, as well as at the death of Newit Vick, there was no law in this state, authorising the administrator with the will annexed, to sell lands directed in the will to be sold by executors. The common law did not authorise it, and there existed no statute transferring the power. All the sales then made by John Lane under the power given to the executors for that purpose were void; Turner’s Digest, 443, 447; Revised Code, 62. Now if the purchasers under the administrator acquired no title to the lots, still less could they acquire an easement, which, according to complainants’ own showing is only appurtenant to said lots. Again, the power “to lay off 200 acress into town lots at the discretion of my executor” is a mere naked power, and that too implying a' personal confidence in the discretion of the executors, and could under no circumstances pass to the administrator with the will annexed; not even under the statute in the Revised Code. This position is fully sustained by the following cases. 16 Vesey, Jun. 44, 46; 3 Marshall’s Rep. 381; 3 Bibb, 349; 4 Johns. Chan. Rep. 368. In attempting, then, to execute the power given in the will to the executor, Lane exceeded his capacity as administrator, and his acts in relation thereto were illegal and void.
    
    3. But the power “ to lay off 200 acres into town lots,” would not have authorised even the' executors to have dedicated the land in controversy as a “public commons.” Streets are necessary in laying off a town; commons are not. Streets are, in fact, a part of the adjoining lots; not so commons. The power is to lay off a specified quantity of land into town lots for the purpose of sale. Is it a good execution of such power, to give away a portion of the land devised? The land in controversy is a tract of which Newit Vick died seised in full property, which has never been laid off into town lots, nor sold, and which the devisees now claim, while complainants make title by a gift from the administrator. The law cannot recognise any such power in the administrator to give away the property of infant devisees, nor does it in any way legalise such gift, to show that the value of other property devised, was enhanced thereby.
    If, then, Lane was no administrator, or the power given in the will did not devolve upon him, or if the power itself did not au-thorise the dedication of the land in controversy as “ public commons,” in either of these contingencies, complainants’ claim through Lane, falls to the ground, and with it the whole case presented'by the bill. We have now demonstrated that complainants cannot derive the shadow of a right to the easement in question, either from Newit Vick in his lifetime, or from John Lane, the pretended administrator.
    III. There is left but one other source from whence they could have derived their claim; that is, the heirs of Newit Vick. Can complainants, then, show any title derived from the heirs of Newit Vick? or rather the devisees of the real estate? for by the will all the real estate is devised to the sons, except such lots as might be sold by the executors to pay the debts. A conclusive answer to this question would be, that the bill sets up no claim through the devisees, nor pretends airy dedication or grant by them, and, therefore, even if there was any evidence on this subject, it could not be received, because it would go to sustain no averment of the bill, but would be irrelevant. In point of fact, however, there is not a particle of evidence upon which any claim through the devisees can be predicated. It appears, that when the dedication was made by John Lane, during all the transactions of his pretended administration, all the devisees were minors, and of course being under legal disability, could in nowise be affected by John Lane’s acts. It also appears, that as soon as Wesley and William, two of the devisees, came of age, they claimed the land in controversy, as their property, and within one year after their majority, sold and conveyed a portion of it. It further appears, that one of -the de-visees, to wit, Néwit Vick, is still an infant, which alone is sufficient to protect the land in question from any claim derived through the devisees. Said Newit is a defendant in the case, has answered by his guardian ad litem, and prayed that his interest may be protected. He certainly can neither have lost or parted with any right which he had at the death of his ancestor. The record does not present a scrap of evidence to show that either Wesley or William Vick, the two devisees of age, from the time they came of age to the time they sold the land in controversy, ever by word, act or deed, in any way recognised the dedication of John Lane, or the right of complainants to the easement claimed by them, or that during that time either of them sold a lot in reference to said easement. To be sure John Lane says in his deposition, that in making deeds to other portions of their property, tlrey sometimes referred to the “ commons” as a geographical boundary. This may be true, for the land is known by that designation, and was sold by them as their private property under the same designation. Referring in a deed of other property to the land in controversy, merely as a geographical boundary, by its popular name of commons, cannot certainly be considered as conferring a title upon complainants. We feel warranted in asserting that the record presents no acts .of the devisees of Newit Vick out of which complainants can derive title to the easement in question.
    There are one or two incidental grounds urged by complainants which, though they cannot be considered as of much importance, it may not be amiss to notice.
    It is said by complainants, that defendants have acquiesced and confirmed the acts of John Lane, and recognised his dedication as well as that of the commissioners, by receiving the lots laid off to them, and by acquiescing in the plan of the town, and selling lots in reference thereto.
    Now in the first place, we deny that there can be any confirmation of a void act. If the dedication made by Lane and the commissioners was void ab initio, it could not be revived or confirmed. It is true the subsequent act of the devisees, after they had arrived at majority, might have constituted a new and original dedication, but could not revive a nullity.
    Now no dedication by the devisees, or any of them, is charged in the bill, and of course none could be proved on the hearing. Waiving, however, this objection, we boldly deny the proposition that either of the devisees or defendants ever even silently acquiesced in, much less confirmed the claim of the town! It is true they have acquiesced in the manner the lots were laid out, and frequently sold the same, but pari passu, with such recognition they have repudiated, denied, and publicly opposed the claim of the town to an easement in the land in controversy. Since 1829 they have publicly set up their claim to this portion of their father’s estate, and for the last five years have been prosecuting their claims in the courts.
    When the devisees .of Newit Vick came of age, they certainly had the right to repudiate any portion they saw fit, of the illegal and void acts of Lane or others in relation to the real estate, the title to which vested in them at the moment of their father’s death. They have so repudiated the dedication under which complainants claim, and nothing but the most unblushing effrontery can assert, upon the record before the court, that any one of defendants has assented to, or acquiesced in such dedication. It must require great sophistry to prove that the prosecution of a suit is an acquiescence in the adverse claim.
    ■ But it is again contended hy complainants, that the laying off the town by the commissioners under the order of the orphans’ court, the return of their plat, and the reception of their report by the court, constituted altogether a judicial act, which, however erroneous, cannot be attacked collaterally in another suit.
    This objection is easily disposed of, and, in fact, is only noticed out of compliment to complainants.
    1. It cannot be pretended that the acts of the commissioners were of any validity, except by virtue of the order of the probate court appointing them. Their powers were limited to the terms of the order. Now the order of the court appointing the commissioners simply authorises them to lay off and divide the residue of the 200 acres unsold, among thirteen heirs. No power is given them to dispose by grant, dedication or otherwise, of any portion of the estate which they were to divide. Their pretended dedication of a portion of the land they were to divide, was as complete a nullity as a sale by them to a private individual would have been. Now will any one pretend that commissioners appointed by a probate court to divide, can sell? or that such sale would not be ipso facto void? The reverse of this proposition is too absurd for argument.
    
      2. But again — Who were the parties to .this proceeding in the probate court? Not the defendants in this suit — not the devisees of Newit Vick. The parties were Henry Morse and John Henderson, who married daughters of Newit Vick, and Nancy Vick, another daughter, v. John Lane, administrator. The devisees of Newit Vick had no notice whatever of the suit, and the parties to the proceeding had no interest or right in the subject matter of the controversy. We doubt much whether any principle of law will enable two individuals to litigate with each other' in relation to the property of a third, and then tell him, though he was no party to the. suit, that he is precluded by it.
    3. Again — Even if the probate court had expressly ordered the dedication in question to have been made, such order, and the acts under it, would have been void, inasmuch as it would have been beyond the jurisdiction of a court of probate to make such an order. As to jurisdiction to divide, see Rev. Code, 61, 62; Turn. Dig. 444. Act giving jurisdiction to be strictly pursued, otherwise proceedings void. 3 Yeager, 355-6; Ibid. 367; 5 Peters’s Cond. Rep. 28; Opinions of this Court, Record, 38; Ibid. 12, 13,14. Without notice judgment void. 5 Wend. 155; 1 Campb. 66. Partition fraudulent; therefore, if illegal, could not be confirmed without full knowledge. 3 Yeager, 369. As to confirmation of void acts, see 9 Peters, '607; Walker’s Rep. 60; 3 P. Wins. 315.
    4. Lastly — In point of fact, neither the order of the probate court, nor the report of the commissioners, nor the plat returned by them, show any dedication whatever of the land in controversy, nor is there any thing in the records of the probate court recog-nising such dedication.
    But even if a valid dedication was made of the land in controversy, the right of the town has been extinguished and lost by their own acts, which have been inconsistent with the nature of the easement or servitude claimed by them.
    It appears by the evidence and exhibits filed in the case that nearly all the landings, embracing the premises in controversy, have been for several years leased by the corporation of Vicksburg, with the full assent of the public, to private individuals, who have entered and enjoyed the same as private property, in accordance with the provisions of their leases. It is also in evidence that the land in front of lot No. 1 has been built on and occupied as private property ever since the settlement of the town, and that such private occupation has been for the last four or five years sanctioned by a lease from the corporation. Now the Corporation of Vicksburg, the complainants in this case, claim the land in controversy as a public easement, while for years they have been leasing it to private individuals. These leases are inconsistent with the claim set up by them, and have extinguished the servitude or easement, even if it once existed: for the principle is thus laid down in the books: “An act incompatible with the nature or exercise of the servitude, is sufficient to extinguish it; so the ere-ation of a new inconsistent right by the party himself, will extinguish the former right.” Taylor v. Hampton, 4 McCord, 96. We hold that the complainants are estopped by these leases from denying that their rights have passed to the lessees.
    If our reasoning upon any of the foregoing points is correct, it brings us to the inevitable conclusion that complainants have not a shadow of right to any easement in the land in controversy; that said land is private property, belonging to the devisees of Newit Vick and those claiming under them; that the decree of the chancellor is erroneous, and that the same ought to be reversed, and the original injunction dissolved.
    The parol evidence of Walcott in relation to the plat cannot-be received, the destruction not being proved, nor any search or diligence to obtain it, nor any identity; and further, because he speaks of said plats; and no legal excuse is given for the non-production of one of them. 1 Starkie on Ev. 347, et infra.
    
    Holt and Grayson, for appellees.
    This is a bill filed by complainants to restrain William Vick and others from the erection of nuisances on a strip of ground known and designated on the recorded plat of the city of Vicksburg as “ Commons” and “ Levee Street,” and which, from the upper to the lower end of the city,, occupies the entire space between the front row of lots and the Mississippi river. This ground is alleged to be public property, dedicated to public uses, ánd the object of the suit is to quiet the title of the public thereto, and to enjoin perpetually the defendants from building or raising other obstructions, to its full and free enjoyment on the part of those entitled.
    The jurisdiction of the chancellor, for such a purpose, is conceded, and if it were-not, it is clearly established by the highest authorities in England and America. The Mayor &c. of London v. Bolt, 5 Ves. 129; The Attorney-General and others v. Blount, 4 Hawk’s Rep. 384; and 4 Paige, 510, 514.
    The title of the public to this easement (the proprietorship of the fee in the sale not being now sub judice) is rested upon several distinct grounds. That portion of the land in which the easement is alleged to exist, lying above Jackson street, and between No. 1, 32, 33, 64, 65, and the Mississippi river, is claimed to be a public street or “ commons.”
    1. Because Newit Yiclc, in his lifetime, dedicated it as such, and sold lots in reference to said dedication.
    
      2. Because John Lane, duly appointed administrator, cum tes-tamento annexo, on Newit Vick’s estate, having ample power for that purpose, did, in 1S22, publicly and solemnly renew and confirm this dedication, and in the execution of the trusts of the will, sold a large number of lots in reference thereto.
    The title of the public to the easement claimed in that portion of the land lying between the Mississippi river and the front line of lots, below or south of Jackson street, and designated on the recorded plat as “ Levee street,” is based upon two grounds:
    1. That the commissioners in 1824, appointed by the orphans’ court of Warren county, to lay off the residue of the 200 acres into lots, agreeably to the will of the testator, and divide the same among his heirs, had, in the execution of the commission Avith Avhich they were charged, full power to lay out and dedicate streets, alleys, &c., to the public; and that they did, under this power, in the most public and unquestionable manner, dedicate and set apart this slip of ground, called “ Levee street,” to the use of the public as a common street or highway.
    2. That John Lane, administrator as aforesaid, having authority for that purpose, did co-operate with the commissioners in making said dedication, and did fully concur therein, and the heirs . of Newit Vick have adopted the same.
    Dedication is a mode of transferring and rmsting title to real estate, well known to the law; indeed, the recognition of its efficacy for that purpose, is traceable through a series of decision's, back to the most remote period of English jurisprudence. No writing is essential to give it validity, nor are any set ceremonies or formula required to be observed on the part of the grantor. Any act of his, from which it is fairly deducible that he has appropriated the land in controversy as a street, common, &c. for public use, will make the dedication effective.
    Dedications are of two kinds: an implied dedication occurs where the appropriation to the public use is not expressly proved, but is sought to be inferred from acts of the grantor, which are . deemed incompatible with any other hypothesis. Matthews on Presumptive Evidence, 317; 5 Taunt. 137. “A man building two rows of houses, with an open space between, and renting or selling the houses, without any other act or declaration, will be presumed to have dedicated the intervening space as a street or highway.” Matthews on Presumptive Evidence, 5 Taunt. 137. A fortiori, a man laying out a town (designed to be a commercial emporium,) and leaving a vacant space of some thirty or sixty feet between the front line of lots and the river, from a constant and easy communication with which the wealth and prosperity of the town are to be derived, will be presumed to have dedicated to the public that vacant space. The grantor of lands grants by implication, as incident thereto, every thing which is necessary to its enjoyment for the purposes contemplated by the parties at the time of the grant. Co. Litt. 56; 2 Black. Rep. 36; 3 Mason, 250; and a dedication thus made, is not extinguished by unity of seisin. 5 Taunton, 311; 1 Saund. Rep. 323, a. A right of user in this strip of ground, as a street, passed to the public from Newit Vick, on the sale of any of the lots which could not be enjoyed for those social and commercial purposes for which they were purchased, without such a right.
    The complainants, however, in this case, are not driven to the necessity of relying upon an implied dedication. A dedication by Newit Yick, (of the ground fronting lots 1, 32, 33, 64 and 65,) of the most positive and solemn character, is expressly proved by the depositions of Walcott and Templeton.
    The effect of the deed to Rogers, made by Newit Vick in Juno, 1819, in which lot No. 1, conveyed, is described as “number one lying and being in the plat of the town called Vicksburg, on the Mississippi river, near the mouth of Glass’Bayou, being the comer of Water and Center streets,” (evidently meaning “the commons,” by the term “Water street,”) amounts perse toa dedication of record, and its covenant of warranty would have estop-ped Newit Vick in his lifetime, and must now estop his heirs or assignees, to claim as private property, not only the ground in front of that lot, but any other ground represented on the plat referred to, as appropriated to the public. 17 Mass. Rep. 415, 416; 11 Wendell, 493.
    The testimony is that Newit Yick, in his lifetime, laid out nine squares of lots, which now remain streets, &c., as he laid them out; that at the time of laying them out, and repeatedly afterwards, he declared the groimd in front of lots 1, 32, 33, 64 and 65, to be a “ commons” for the use of the public, and when applied to by Walcott to sell that portion of it laying between lot 65 and the river, he peremptorily refused, stating that it was public property,
    The proof establishing the plat is sufficient to overthrow the der nial of the answers, even if two witnesses, or one and strong, corroborating circumstances were required for that purpose; which, however, is not the fact, inasmuch as defendants answer to facts not within their knowledge, and in reference to which their answers, even if they have the hardihood to make them positive, instead of “according to their information and belief,” (as a con,-scienttious man would do,) are entitled to little weight. 6 Monroe, 22. The answers being falsified in one point (the existence of the plat) by Walcotand Templeton’s depositions, and the recital in the deed to Rogers, (of which respondent had knowledge,) are to be credited in nothing. “Falsum in uno,fulsum in omnibus.”
    
    He made a plat of the town as far as laid out by himself, the existence of which is recognised in his deed to Rogers. A rough sketch of this plat he had in his hand when surveying the lots, an accurate copy of which he afterwards showed to witness (Wal-cott) and others, and offered to sell lots in reference thereto, “ as delineating the permanent plan of the town.” On these plats, the groimd in front of lots 1, 32, 33, 64 and 65, was distinctly designated as “ commons,” the word “ commons” being written on that part of the plats representing it. He sold lot No. 1 to Rogers, and lot 9 and 10, to James H. Center, all of which were improved and settled on by the purchasers and their families, in his lifetime. The description in the deed to Rogers, demonstrates that he purchased in reference to the plat, and that he did so, is further inferable from the fact as proved, that his lot would not have sold for more than half the sum he gave for it, had it not been regarded as fronting on the river. That James H. Center also purchased in reference to the plat, is shown by a circumstance which if not conclusive, is certainly most persuasive proof, i. e., that on the part of the plat representing his lot (on which lot he then lived) his name was written. The sale to Center under which he built and resided upon the lot is recognised in Newit Vick’s will, and a conveyance to him is therein directed to be made upon •the payment of 300 dollars: every requisite held essential to the validity of a dedication is thus most decisively established. 6 Peters’s S. C. Rep. 431. 444; Joseph Barclay et al. v. Howell’s Lessee, 6 Peters’s S. C. Rep. 498, 513; 10 Peters’s S. C. Rep.; 4 Paige, 570; 11 Wendell, 493; 8 Wendell, 95, 94. 92; 11 Wendell, 500.
    The dedication thus powerfully sustained by record and parol testimony, is opposed by defendants (heirs of Newit Vick) as null and inoperative for four reasons:
    1. That at the time of the dedication, there was no grantee or public in esse competent to take, and that, for this alleged defect, the grant lapsed and failed.
    2. That there was no user of the “ commons” as a street by the public in the lifetime of Newit Vick.
    3. That since the death of Newit Vick, his heirs have enjoyed a unity of possession of the estate to which the easement is attached, and that which it encumbers, whereby the easement itself has been extinguished.
    4. That if ever the easement did exist, it has been surrendered by the public and the corporation, who have leased and treated the “ commons” as private property.
    That there is no force in the first objection, vide 6 Peters’s Rep. 436-7-8, where all the authorities upon this point are reviewed, and the court decide that the want of a grantee, competent to take at the instant of dedication, will not affect its validity — that the fee will remain in abeyance until such competent grantee (an incorporated body) comes into being, and that in the meantime, the party making the dedication is precluded from reasserting any right over the land.
    That the second objection is alike untenable, vide 6 Peters’s S. C. Rep. 505-6, Avhere the court says, “ the right does not depend upon the use,” that the former may exist without the latter, and that the user of the ground in pursuance of the alleged dedication is only important to be inquired into, when a presumptive or implied dedication is relied on. When there is, as in the case at bar, an express dedication, the question of user or no user is wholly dehors the controversy. The “commons,” (excepting a slight and temporary obstruction in front of lot No. 1,) has always laid open, unoccupied, liable to be used by the public as a street. It has always been regarded as such, and as soon as the town began to settle and improve, and the exigencies of the inhabitants required the use of this strip of ground as a street, or thoroughfare, it is shown that it was then, and has been ever since so used. Nothing could be more absurd than to require as essential to the validity of a dedication, that there should be a pre-existing population present at the moment of its being made, who should at once leap upon the street, and continue to occupy and trample upon it with their feet, drays, horses, &c., “ without ceasing.” Such is not the manner in which towns are founded. Streets are the precursors of the population, not their followers. They constitute a lure and an inducement to the settlement of the town, and do not presuppose a town already populated and grown up.
    The third objection assumes the position that all the sales made by John Lane, administrator, were null and void, and that the lots attempted to be conveyed by him, vested in the heirs of Newit Vick by descent, or passed to a part of them by devise. This question will be hereafter discussed. At present, for the sake of argument, conceding the position, the conclusion insisted on by defendants does not follow. The unity of possession was only partial, not entire. There was no unity of possession so far as the lots purchased by Rogers and Center were concerned. Nor has there ever been such unity in regard to them. And as the effort to resolve the embryo town into its original elements, (a cotton field,) if made by Newit Vick, would have been a gross breach of faith with these purchasers, Avhich the arm of the chancellor would have arrested and baffled, so will it be equally resisted, when made by his heirs or devisees. The sale of the lots to Rogers and Center in reference to the plat of the town — which upon its face distinctly exhibited a dedication of the “ commons” —amounted to a covenant on the part of Vick, the vendor, that they should have an easement in the “ commons,” and other 
      streets, to the full extent of their dimensions. 2 Wendell, 475. Not merely that an open space should be left immediately in front of their respective lots, and which to them would be utterly valueless as a street, but a covenant that all the streets and avenues delineated upon the plat, to their full dimensions, width and length, should be kept open. 11 Wendell, 493. “ The purchaser of every lot gives an enhanced price, in consequence, not only of having a street adjacent to his own lot, but of having a number of streets in the vicinity of his lot, according to the plan or map by which he purchased.” If a proprietor, therefore, sells a single lot, he adapts the map, and thereby makes an appropriation or dedication to public use of the ground laid out as streets. Here, then, is an estoppel operating upon all claimants under Newit Vick, since there can be no doubt that the actual dedication of the “ commons” extended as low down as Jackson street. This is established by Newit Vick’s refusal to sell to Walcott the ground now constituting lots 189 and 190, alleging that he would not and could not sell at any price, because it was public property.
    The fourth objection is equally unsustainable. There is not the slightest testimony conducing to show that the public have ever abandoned their right to this easement. This whole weight of the evidence is decidedly to the contrary. The leases of the corporation, so far from being an appropriation of the ground to private purposes, were designed, and well designed, to promote the very objects of dedication. In effect, they are the mere transfer of the wharfing privileges for certain periods of time, in consideration of which the lessees stipulate for the construction of wharves and other improvements, calculated to facilitate the use, and enhance the value of this ground, as a street. But even if the corporation had so far abused its powers as to appropriate this ground to individual and unauthorised objects — had it even been laid out into lots, and sold, the interest of the public would not have been thereby affected; such a breach of faith would only have invoked the intervention of the chancellor, who would have decreed a specific execution of the trust. 6 Peters S. C. 507; 10 Peters S. C. 715-16, 736.
    
      2. The complainants assert a right to a street easement in the 
      “ commons,” because, as they charge, this strip of ground was solemnly dedicated to the public for that purpose by John Lane, administrator of Newit Vick, and lots sold by him at high prices, as fronting on the commons, in reference to this dedication by Vick and himself.
    That the dedication was made, as alleged by Lane claiming to be administrator of Vick, is frankly admitted by the defendants, but they contend that the act was wholly ineffectual to vest the easement in the public, for two reasons:
    1. Because John Lane was not in fact, as he assumed to be, the administrator of Newit Vick.
    2. Because, if Lane were administrator with the will annexed, duly appointed, yet he*had no power as such to lay out the 200 acres into town lots, or make a dedication of any part thereof to the public, and that his acts for that purpose are null and inoperative.
    ■ In support of the claims of Lane to the administratorship of Newit Vick’s estate, complainants exhibit an order of the orphans’ court of Warren county, made at its October term, 1821, appointing him administrator, which order remains unreversed, and it is conceded that this court had jurisdiction of the subject matter, and was the proper tribunal to make the appointment, if it corffd be made at all. This grant of administration, it is confidently urged,, must be final and conclusive upon all the world, until reversed by appeal. 3 P. Wms. 370; 5 Johns. Chan. Rep. 343; 2 Munford, 472; 1 Starkie, 228-9-30; 3 Term Rep. 128-9-30. But defendants insist that the letters of administration thus emanating from a tribunal of acknowledged jurisdiction, are void:
    1. Because, in October, 1821, Willis B. Vick, who had qualified as executor of Newit Vick, was in being, capable of acting, and was in fact fully clpthed with the executorial office.
    2. Because, even if Willis B. Vick were not in office, yet that after his removal, Hartwell Vick, named in the will as his co-executor, and who had never qualified, should have been summoned, and his renunciation entered of record before letters of administration were properly grantable.
    It is believed by complainants, that Willis B. Vick was legally removed from office by the superior court of Warren county at its September term, 1821. That the orphans’ court had then as now, an implied power to remove executors in certain cases, is shown by reference to the statute. Turner’s Digest, 443. Whether the facts existed, which brought the particular case within the statutory rule, must necessarily have been determined by the orphans’ court, subject only to correction by appeal to a higher tribunal. Vide 2 Peters’s S. C. Rep. 159,160,161. Upon Willis B. Vick’s petition to be removed from the executorship at the July term, 1821, the orphans’ court declined removing him. From this judgment, deeply affecting the interests of the heirs, (owing to the ill health of said Vick and the consequent neglect of his duties,) John Lane, who had married one of the distributees, prayed an appeal to the superior court of Warren county, which was allowed. The superior court did, as is proved by the record, at its. September term, 1821, in a case docketted “John Lane, Appellant, v. The County Court, Appellee,” proceed to inquire into Willis B. Vick’s right and ability to hold the office of executor, and by its judgment discharged him from the same. Defendants object to this proceeding as irregular and void.
    1. Because the case in the superior court does not appear to be the same determined by the orphans’ court, it professing on its face to be an appeal from a judgment of “ the county court” and not of the orphans’ court.
    2. Because, by law, no appeal could be taken from the orphans’ court to the superior court of the county, and if it could, John Lane did not sustain such a relation to the proceeding in the court below, as to authorise him to prosecute an appeal.
    The fact that at that day the same justices held the orphans’ court and the county court, and at the same time, having the same clerk, was well calculated to confound the tribunals in name, as they were always blended in action. The testimony of Lane, and of the clerk of the probate court shows that no appeal but the one from the judgment of the orphans’ court refusing to dismiss Willis B. Vick at the July term, 1821, was even prayed by Lane to the superior court of the county. The testimony of the clerk of the circuit court, that no case, other than the one of “ Lane, Appellant, v. County Court, Appellee,” was ever brought up by Lane to the superior court by appeal connected with the fact that the judgment of the superior court dismissing Vick, is found in the papers of the orphans’ court, attested by the clerk of the superior court, and endorsed in the handwriting of the clerk of the orphans’ court, must go very far to establish the identity of the cases. No mind can doubt it for a moment. The act of the legislature of Mississippi, entitled “ An act to establish a county court within each county of this state for orphans’ business, for county police, for the trial of slaves and for other purposes,” approved 5th of February, 1818, declares all laws previously in force, relating to the orphans’ and county court, should continue in force, and apply to tips courts established by that act. One of those laws was, that‘the justices of the county court should, during their stated terms, hold the “ orphans’ court, (Turner’s Digest, 132, sec. 4, p. 432,) with full jurisdiction of all testamentary and other matters pertaining to an orphans’ court or court of probate in their respective counties.” Under these statutes, as under that of 1818, the practice was to hold both courts together, keeping separate records, and all that transpired relative to county police, trial of slaves, &'c. was registered in the “ county court” record, and all that related to subjects of the orphans’ courts jurisdiction, was registered in the “ orphans’ court record.” The continuance of this practice, after the passage of the statute of 1818, was but a fair interpretation of its provisions, and being contemporaneous with the statute, it is much to be regarded.
    As to the second objection to the removal by the superior court it may be answered that, the application for removal, being of an ex parte character, does not assume that regularity so far as parties are concerned, which characterises suits generally. And for judgments rendered in this class of cases, the rule is that any one interested in the subject matter, may prosecute an appeal. Being a testamentary matter, it is a proceeding in rem, and the principle upon which judgments pronounced in such proceedings bind all the world is, that all may if they choose become parties thereto. 1 Starkie, 228, 229, 230. John Lane, as one of the distributees of the estate, was deeply interested in the reversal of the judgment, inasmuch as the estate was suffering from the inability of Willis B. Vick to protect it. At all events, if the right of the court below to grant an appeal to some one, and the jurisdiction of the court above to hear it, be admitted, then the question as to whether the appeal went up regularly and in the name of proper parties, was one which necessarily belonged to the superior court. If it had jurisdiction over the subject matter of the controversy, and all objections to the mode of bringing that subject matter before the court, were either waived or overruled, no matter how erroneously, the proceeding cannot now be annulled as coram nonjudice.
    
    In regard to the propriety of the appeal to the superior court, vide the act of 1818, ss. 3 and 15. The third section allows appeals to the superior court, from the county court, in all cases of original jurisdiction, designing obviously by the term “ original jmisdiction” to exclude those cases decided in the county court on appeal from justices of the peace. Taking the whole statute together, the fair interpretation is, that appeals are allowed from the “ county court” to the superior court, as .well when it is sitting as a county court, as Avhen it is holding the “ orphans’ court;” otherwise, as appeals are authorised by it in no.other cases, but when the chief justice is sitting alone, there would be a large and most important class of cases left unprovided for, to wit, all the orders and judgments of the orphans’ court, when held by the justices of the county court.
    This inquiry into, the legality of Willis B. Vick’s discharge from the executorship, has not been prosecuted from any conviction'that it is necessary to support the letters of administration granted to Lane. On the contrary that clause of the statute under which these letters issued, neither required nor contemplated, though it may be construed to have allowed, a formal removal of the executor. Turner’s Digest, 443. It simply declares that upon the happening of certain events, (therein enumerated,)’ disqualifying, in the estimation of the legislative mind, the executor to fulfil the duties of his office, the orphans’ court shall appoint an administrator with the will annexed. It makes the circumstances recited, of default or misfortune in the executor, work a forfeiture of his office, and supersede the future exercise of his functions, and the grant of letters of administration with the will annexed, is only record evidence that the proper tribunal has ascertained the existence of these circumstances, and filled the office which their existence had vacated. To determine that although these disqualifying circumstances were fully established, yet that the right of appointing an administrator did not attach until after a formal removal of the executor, would be to clog the exercise of that right with a condition unknown to the statute creating it. It is true that the orphans’ court, at its July term, 1821, refused to release the executor, but it was competent for that court at any moment after to examine into the facts which might be urged as disabling him, and the order appointing John Lane in October, 1821 is unimpeachable evidence that it had made this examination, and found these facts to exist, and took the proper action theréon. That order remains to this day un-reversed. '
    The defendants’ second objection to the validity of Lane’s appointment, growing out of Hartwell Vick’s being alive at the time and not resummoned, is by no means formidable. In November, 1819, Hartwell Vick refused of record the executorship, and according to the current of authorities, he could never reclaim it. Thornton v. Winston, 4 Leigh, 152. There was no illegality in denying Hartwell Vick letters testamentary in November, 1820, since his refusal to give the proper security was tantamount to a refusal of the executorship. In England, where no surety is required, but an oath is) the refusal to take the oath .has been universally held equivalent to a refusal to accept the executorial office. Toller, 40. A fortiori, in this country, where security is required of all executors, will a refusal to give it (especially by such a notorious insolvent as Hartwell Vick) be deemed a renunciation? Turner’s Digest, 442, sec. 3S.
    After Willis B. Vick’s removal, it is true that according to Tol-ler, (though most probably in error,) Hartwell Vick must have been again summoned and again renounced before letters of administration could have been granted to Lane. This doctrine is, however, in derogation of the common larv, according to which no right, once solemnly renounced, can be reclaimed. Hartwell Vick had twice' disclaimed the executorship — once on presenting the will for probate, which was entered of record; and secondly, in November, 1820, by declining to give the requisite security; and .according to common law principles, an office thus doubly renounced, could never be resumed. The right to this resumption in England (if it exist at all) grows out of a statute which has never been in force in Mississippi — the statute of 21 Henry VIII; Toller, 40. That statute is local to England, was personal to Henry, and was one of the many innovations consequent upon his angry and protracted conflict with the pope and church of Rome. Through it, he aimed to unnerve the ecclesiastical arm in England, by cutting oif all its instruments of extortion, and all its enriching patronage, the most important of which was the granting of letters of administration. Administrators being then entitled to the residuum of estates, after paying debts, it became in the progress of those profligate times, a most lucrative patronage, the spoils being generally shared by the Ordinary with his trusty friends, to whom he granted the letters. The leading object of the various provisions of this and other statutes of that reign was, by menace and entreaty, to compel executors (who were the friends of the deceased, and not the retainers of the church) to produce the wills of their testators, and take out letters testamentary thereon. Hence, they were summoned and resummoned, and importuned and threatened by the government, and not until ■every method had failed, and their renunciation had been solemnly made, would the begrudging and jealous temper of Henry allow the functionaries of the church to grant letters of administration to their confidants and dependants. But even if a renunciation were necessary after Willis B. Vick’s removal, a renunciation in pais would be sufficient, and that was made in the hearing of the court — it being distinctly proved by Lane, that but a moment before letters of administration were awarded to him, Hartwell Vick appeared and demanded letters testamentary, refusing at the same time to give security. This, though not of record, is a refusal or renunciation in pais, and is all that the highest authorities require. Broker v. Charter, Cro. Eliz. 92; Wentw. Oif. Ex’r. 38, 41; Swinburne, part 6, sec. 12; 3 Munf. 348-9; 4 Munf. 332-3; 1 Randolph, 10S; 4 Leigh, 152.
    Hartwell Vick’s subsequent application for letters in 1823, brought the whole subject before the court, as well the legality of Lane’s appointment as of Vick’s right to the executorship, and the judgment of the orphans’ court denying him the letters having been fully affirmed by the supreme court, must forever settle the rights of the parties. The judgment of the orphans’ court upon a subject within its jurisdiction, cannot be assailed in this collateral way; but having been confirmed by the highest judicial tribunal in the state, from which there is no appeal, and which is conventionally infallible, the judgment, even in the absence of jurisdiction, must be conclusive, and stand unquestioned in every other forum. This decision of the supreme court consecrates the order of the orphans’ court appointing John Lane, as well as that refusing letters testamentary to Hartwell Vick.
    Lane being administrator, the second objection of defendants to the dedication made by him remains: “That as administrator, he had no such power as was exercised.”
    If he had power to lay out the lots and sell them for the payment of debts, the power of laying out and dedicating streets, it is admitted, Avould follow. It is not pretended that there has been any abuse of this power in its exercise in this instance, the ground dedicated being no more than was, and is required for public use as a street. But defendants argue, that the power of laying out the town and selling lots, was a naked power, uncoupled with an interest — a mere personal trust, which none but the executors could execute. All the arguments and authority employed in defence •of this position, rest for their support upon common law principles, which still prevail without modification in several of the states of this Union. But the statutes of Mississippi have swept off this time-honored distinction between naked powers and powers coupled with an interest, and have declared in general terms that “ lands devised to be sold, shall be sold by the executors, or by such of them as undertake the execution of the will, or by the administrator with the will annexed.” See Revised Code, 45, sec. 63, declaring that an administrator appointed after the removal of an executor, shall have the same powers as if the executor were dead. See Revised Code, 62, sec. 113. That in the event of the death of an executor, the administrator appointed to succeed him shall have full po'wer to sell lands devised to be sold. The cases cited from Marshall and Bibb, decided upon a similar statute, only settle, that where a discretion as to whether a sale shall be made or not (as if he shall deem it advantageous to the estate) is given to the executor, then the administrator, with the will annexed, cannot sell. Such is not the case at bar. Here the direction to sell is positive and imperative in its terms. The whole estate of the testator, except the 200 acres, is devised and bequeathed away. This land alone is constituted a fund for the payment of debts— the will acknowledges an indebtedness, and it is fully proved. A sale, then, is a matter of necessity, and required absolutely as well by the terms of the will, as the circumstances of the testator. This statute took effect in February, 1822, and in April following, the sale of lots and dedication were made by Lane. Though his appointment was anterior to this statute, yet he must be regarded as invested'with all the powers it bestows upon administrators generally. Being a functionary or agent of the government, it was competent for that government at any time to increase his power. Any other construction would leave him without any authority, a mere nominis umbra, inasmuch as this statute in its last section repeals all other laws in reference to executors, administrators, &c.
    But Lane' being administrator, even if under this statute he had no power to lay out the town and sell lots, yet having executed the trust in a judicious and faithful manner, and appropriated the proceeds of the sales to the payment of the debts, the chancellor will confirm and uphold his acts. A trust like the one in Newit Vick’s will, for the payment of debts, is one that survives. Franklin v. Osgood, 14 .Johns. Rep. 527; Jackson v. Burtis, Id. 391; Lessee of Zebach v. Smith, 3 Binney, 69; Jackson ex dem. Elizabeth Hunt v. Ferris, 13 Johns. Rep. 346. It is a trust which in no event will the chancellor permit to perish. 2 Johns. Chan. Rep. 28-30; 10 Peters’s Rep. 563-4-5. “ If the court can see that the power is coupled with a trust to the execution of which the party looked with confidence, the failure or negligence of the trustees shall not disappoint those objects.” 4 Yesey, 26. When appealed to by any one interested, the chancellor will execute it, although the original trustees máy have died. Lane being administrator, and as such charged with the payment of debts, was of all others, the most appropriate person to make this application to the chancellor, for the execution of the trust and the sale of the trust property. And he, having performed honestly and efficiently, without application to the chancellor, what the chancellor on application would have ordered, will be upheld, and irremediable ruin will not be visited upon trusting purchasers under him, by undoing that which the chancellor would do over again in the same manner. 16 Yesey, 27; 2 Madd. 152. It is at worst, but the defective execution of a power, which the chancellor will always aid. 2 Munford, 134-5. “An administrator pendente, lite, has no power to make distribution of the estate, but having made it according to law, this court will not compel him to refund.” P. A. Browne’s Rep. 1 vol. 87.
    Though Laue may have been illegally appointed administrator, yet he was at least colorably in office, and his acts are valid necessarily, until the order of appointment be reversed by appeal. “ Payment of money to an executor who lias obtained probate of a forged will, is a discharge to the debtor of the intestate.” Allen v. Dundas, 3 Term Rep. 128, 129, 130; 4 Term Rep. 258; Roll. Abr. 638; Noel v. Wells, 1 Lev. 235; 1 Stark. 231. “ So if the executor has acted, and the ordinary, not knowing it, commit administration to another, though the administration may be revoked, and the executor compelled to prove the will, yet the grant of administration, cum testamento annexo until so revoked, is valid.” 1 Williams on Executors, 149, 340, 341, (note,) 368, 369; Doyle v. Blake, 2 Scho. & Lef. 237; 1 Plowden, 382, 383. No discretion was required or allowed to be exercised by an executor or administrator to the nine squares of lots laid out by testator, and they included the dedication of “ commons” above Jackson street; the language of the will in its last clause, evidently adopts the lots already laid out.
    The claim of the public to an easement in “ Levee street,” remains to be examined. It rests opon a dedication of this ground to the public as a street, by the commissioners in 1824, acting under an order of the orphans’ court (confirmed by the chancellor) for the division of the residue of the 200 acres among the heirs of Newit Vick, according to his will; also upon the adoption of and acquiescence in said dedication by Vick’s heirs, and by John Lane, administrator.
    That it was so dedicated by the commissioners, is proved by witnesses, and their plat returned, and, indeed, cannot be denied. The proceeding, at the instance of Morse and wife, and other heirs of Vick for the division, was had upon this interpretation of the will; that after the payment of the debts of the decedent, the residue of the 200 acres resulted back to all his heirs, and that they might either have the property sold, and claim the proceeds, or take the land itself at their election; taking it, however, subject to the injunction of the testator, that it was to be laid out into town lots. This is believed to be a position fully sustained by authority. Fonblanque, 319; 4 Peters’s S. C. Rep. 334, 335; 3 Wheaton, 563. Whether the children of Newit Vick, be regarded as taking this land by devise or by descent, the proceeding was alike conformable to the statute. Rev. Code, 61, 62. In the application of Morse et al., and throughout all the proceedings had thereon, as well in the orphans’ as in the chancery court, the heirs seem to have been regarded as taking by devise, regarding the term “ all my heirs;” as words of limitation and description, not of descent and in pursuance of this interpretation, the prayer of the petition which was granted, is almost verbatim in the language of the statute, “ that division should be made according to the true intent and meaning of the will,” the metes and boundaries being unascertained. The commissioners were duly sworn, and their report (made by the statute “final and conclusive”) was received, confirmed and recorded. The lots were judiciously laid out by them, and in the dedication of “ Levee” and other streets, there was no abuse of their discretionary power. If they had authority to make division “ according to the true intent and meaning of the will,” they certainly had the incidental power of dedicating streets, as preliminary to the division.
    
      The dedication by the commissioners the defendants insist is a nullity.
    1. Because, after the payment of the debts, the residue of the 200 acres belonged alone to the sons of Newit Vick, under the third clause of the will, which, inter alia, says, “ I give to my sons, one equal part of said personal estate, as they come of age, together with all my lands.”
    2. Because said commissioners had only power to make partition, and not to give away or appropriate any portion of the land to the public or to private individuals.
    3. Because there was no notice, of the time, when the commissioners proceeded to make partition, given to the heirs or their guardians.
    As to the first objection, it is admitted, that, if the language cited were construed as it stands, isolated from the context of the will, there would be some difficulty in resisting the interpretation, contended for by defendants. But even then the difficulty would not be insuperable, as land directed to be converted into money (as that in question was) is regarded as personalty and not as real estate, it might be very plausibly urged, that it would not pass under the title “ lands.”
    Wills are kindly, nay indulgently construed, the testator being in . estimation of law, and generally in fact, mops consilii, his inten- • tion, however obscurely or inartificially expressed, is the polar, star that must govern. In ascertaining the true intent of every instrument of writing, the whole must be taken in at one view, and if possible such an interpretation given, that its several parts or provisions may stand together, without rejecting or rendering any inoperative. The founding of the town of Vicksburg seems to have been an object of great solicitude with Newit Vick. Avarice and vanity alike kindled the aspirations, and colored the dreams of this priestly city builder. Twice is the subject mentioned most emphatically in his will, and his anxieties with regard to the success of his project, are abundantly shown by parol testimony. After giving his wife (upon a certain contingency) the “ river tracts” of land, then owned by him, he expressly reserved from the devise, “ 200 acres to be laid out into town lots,” and in the last clause of the will, he directs his executors to sell these lots for the payment of his debts, in preference to all his other property. The estate was much encumbered, and a compliance with the wishes of the testator involved, of necessity, the immediate laying out of the lots, and sale thereof. This the will evidently contemplated. But how does this design comport with the construction insisted on by defendants; that this same 200 acres was devised to the sons? What were the wishes of the testator in regard “ to all his lands,” devised to his sons? The answer is found in the will; the language is (continuing the quotation) “ together with all of my lands, all of which lands I wish to be appraised, valued and divided when my son Wesley arrives at the age of twenty-one years.” This explains what is meant by the expression “ all my lands.” The lands intended under this devise, were to be kept together, until his son Wesley had attained his majority, a period of eight years, and then appraised and divided. Could the testator have designed to include in such a disposition “ 200 acres,” that were immediately to be laid out into town lots and sold for the payment of his debts? Such a construction would have destroyed the contemplated town instead of building it up. The reservation of this 200 acres from devise, is as positive as language can make it; and the solemn appropriation of it to a purpose, wholly incompatible with its ownership or engagement by Newit Vick’s sons, renders their claim worse than futile. As well might they under the words “ all my lands,” assert title to “ the open woods tract,” specifically assigned to their mother in the event of her choosing to occupy it.
    • Again, the testator says, “ It is also my wish that the said Elizabeth (his wife) shall keep together the whole of my property both real and personal, reserving the provision before made, for the raising and educating, and benefit of the before mentioned children.” From this clause he evidently designed that his wife should retain in her possession and under her control, his entire estate, as well the realty devised to his sons, as the personalty bequeathed to all his children, and that out of the rents and profits she should raise and educate his children, who, with one exception, were then minors; but he expressly reserves from the operation of the sweeping power thus given “the provision before made,” evidently alluding to the 200 acres which in a previous part of the will, he had directed “ to be laid out into town lots,” which lots in the very next clause after that from which I quote, he enjoins his executors to sell in preference to all his other property, for the payment of his debts. All the lairds then which the sons can claim by devise were to “be kept together” by his wife. Could he have intended that she should “keep together” and receive the rents and profits'of the 200 acres, which was immediately to be laid oirt into lots and sold?
    See 4 Kent’s Com. 526;.4' Paige, 115, 116, and 6 Con. Rep. 292, that a residuary devisee cannot take a lapsed devise or one given to a person incompetent to take, but that it descends to all the heirs. The sons of Vick are no more than residuary devisees, that is, taking “ all the lands” not otherwise specifically disposed of in the will. Piad this 200 acres been given expressly by name to A, and he had died in the lifetime of the testator, it would have passed to all the heirs; so if it had been devised to one incapable of holding, or for a purpose contrary to law or public policy. Will not the reservation from devise to the sons, and the appropriation to a particular purpose, have the same effect? And if that purpose has been accomplished, and a portion of the devise remains, will it not descend, as the whole would, had the devise been unlawful or failed from other causes?
    The words “ for the use and benefit of all my heirs,” cannot be expounded to mean, merely that the sale of the lots by exonerating the heirs from liability for the debts of their ancestor, would, thus enure to their “ use and benefit.” Something more must have been intended. The expression of such an obvious result would have been surplusage and folly. An effect so palpable might be inserted in an instrument, cúrrente calamo, but these words are interlined, showing their insertion to have been prompted by a deliberate review and close scrutiny of the body of the will. Were the original before the court, it would be found that the interlineation was made by the. testator himself, in a different hand and with different ink from that with which the will is written, being the same with the signature. It is impossible to resist the conviction that after the instrument had been drafted, and when examining it previous to signing, it occurred to the testator that the proceeds of the lots would be more than sufficient to pay his debts, and that seeing he had given most of his property to his sons, he determined his daughters, (from their sex so helpless and yet so poorly provided for,) should share this little fragment with them, and, to effectuate this determination, made the interlineation.
    The power of making partition necessarily carries with it the power of investigating and finally adjudicating upon the titles of the different claimants. Vide Story’s Equity. . The orphans’ court, called on to decree a partition, as a preliminary question, settled the rights of the claimants under Vick’s will, and construed that instrument to invest each heir with an equal portion of the land in controversy, i. e. the residue of the 200 acres remaining unsold. This judgment of the orphans’ court, acting upon a subject within the acknowledged sphere of its jurisdiction, was reexamined and fully confirmed by the court of chancery, made for such purposes a supreme appellate tribunal, whose decrees are placed beyond the reach of question or impeachment. Rey. Code, 31. The rights of the citizen can have no security or repose, if such judgments are liable to be thus forever collaterally assailed.
    But even if the commissioners erred in the division of the lots, and assigned to thirteen children what belonged to four, yet they did not err in laying out the town; that rvas done in such a manner as must command the approbation of the chancellor, and has not been complained of in any quarter. Upon a familiar principle, then, the chancellor, in overhauling the partition and proceedings preliminary thereto, would only correct what was erroneous, and would not abolish the streets, alleys, &c. after the lots had been received by the heirs, sold and improved, merely for the purpose of laying them out again in the same manner.
    The second objection, that the commissioners had no power to dedicate streets, but only to make partition, has been already incidentally considered, so far as the statutes authorising the proceeding are concerned. Rev. Code, 61-2. The will having enjoined and required that the entire 200 acres should be laid out into town lots, of course authorised the dedication of streets. It remains to be shown that all the orders of the court made. and other proceedings had in the progress of the partition, were avowedly under the will and professed to execute its injunctions in this behalf. The first petition presented by Morse et al. represents that by the will of N. Yick they “ are entitled each to a share in the lots in the town of Vicksburg,” and concludes by praying “ a division of said lots, designating their respective shares.” .The order of the court thereon, made at its May term, 1823, recites at length the clause of the will under which the partition is directed, and appoints commissioners in conformity to the wishes of the applicants. A “plenary proceeding” was then had, at the instance of the administrator: a petition at length under it was filed by Morse and Wife and Others, in which the terms, of the will are again recited, and the court is asked “ to grant an order for the laying off and dividing said lots, according to the form of the statute in such behalf lately made and provided” — (the statute to which the court has been referred; Rev. Code, 61-2) — basing their claim upon the will, and deriving the mode of asserting it from the statute we now rely on. The cause seems to have been fully discussed, and the court, at its July term, 1823, after again setting forth the terms of the will, arid the prayer of petitioners thereon, conclude the order then made by adjudging “ that the petition is reasonable and just, and the granting the prayer thereof would be according to the true intent and meaning of the will.” An order for a division agreeably to the prayer, was accordingly made. From this, an appeal was taken to the chancellor, who? after stating in his decree that “ petitioners prayed for a division of a certain tract of land known as a part of the town of Vicksburg, as authorised by the last will and testament of N. Vick, deceased, and that the orphans’ court had granted the prayer of said petitioners,” affirms the decree of the said orphans’ court. The order made upon the return of the case from chancery, after reciting that the previous judgment of the orphans’ court appointing commissioners, &c., “ as authorised by the last will and testament of N. Vick,” had been affirmed, then proceeds to-renew the appointment; and the commissioners acting under it, recite, in their report, that they had “ been appointed to divide a certain tract of land, &c., as authorised by the last will and testament of •N. Vick;” which report, presenting a plan of the town, on which the ground in contest was distinctly designated as a “ street” and “ commons,” was received, approved and recorded. It is evident that the whole proceedings were designed, in the language of the statute, to “ make partition according to the true intent and meaning of the will.” That “true intent and meaning” imperatively required the whole 200 acres should be laid out into town lots. The will amounted to a positive record pledge to the public, and especially to those previously purchasing lots, that this should be done: and the children of N. Vick, whether taking by descent or devise, took subject to this pledge, and were bound in law and common honesty to redeem it.
    The third objection is, that the heirs, &e. had no notice of the •time and place of the meeting of the commissioners, for the purpose of making the partition.
    One answer which might be given to this is, that the nature of the notice was left entirely to the discretion of the orphans’ court. In the exercise of that discretion no notice whatever to the heirs was prescribed, and of course none was given. Morse and wife, &c., at whose instance the partition was had, were not entitled to notice under the statute. John Lane and Hartwell Vick were present, and concurring in what was done. There then remained eight heirs, all of whom were infants, to whose guardians such notice as the court might direct, should have been given. But the infants had no guardians appointed by court, and notice to them personally would have been an absurdity. John Lane (their father and mother being dead) having married their sister, acted as guardian from his own voluntary assumption, and as such watched over their interests. He, together with their brother, •Hartwell Vick, their next of kin, and of course guardian by nature, had notice and was present.
    The statute does not contemplate notice of the motion in court for the appointment of commissioners, nor notice of the return of their report; yet the orders of appointment and of confirmation are the only judicial features of the proceeding, and for want of notice of which (but that it is dispensed with'by the statute) upon general principles, the partition might be assailed as irregular. The mere act in pais of laying ouf lots and making division, was strictly ministerial, and though notice of it be required, the failure to give that notice will not be fatal. The statute in this particular will be regarded as merely directory; as the provision that the sheriff shall give- notice of his sales; yet, unless there is fraud on the part of the purchaser, the neglect to give notice, will not vitiate. This might have been ground for quashing the report of the commissioners when returned to the orphans’ court, but no motion for that purpose was made, and the court having confirmed the report, by this judicial act, consecrated the error of its commissioners, and rendered the partition in all its parts, “ final and conclusive.” 10 Peters’s Rep. S. C. 449 to 478, where this doctrine is elaborately discussed and the principle contended for, established. 2 Peters’s Rep. S. C. 159.
    This summary mode of making division among co-parceners, &c. arises from necessity and is of very ancient date. At common law, the heir could plead his nonage and the parol would demur in his favor, in all cases, except in a suit for partition. 2 Coke Litt. 171. b.
    It is clearly proved that John Lane as administrator concurred in this partition and the dedication of Levee street at the time,, and the heirs of Newit Vick have fully adopted it since, by receiving and selling the shares of the lots assigned them, in reference to the plat of the town returned by the commissioners. The act is entire, and they having affirmed it as to the lots, cannot disaffirm it as to the mere incidents, the streets and other easements.
    The partitions being just and equal, is such as the chancellor would have compelled, and being adopted by the infants their nonage will not avail them. 3 Burr. Rep. 1794; Reeves’Domestic Relations, 328; W. A. Belton v. T. Briggs et al., 4 Desauss. 465.
    The case, it is admitted, is not free from difficulties; but they vanish before that thorough, unshrinking investigation which is due, not only from the magnitude of the interests bound up with the fate of this suit, (the property at stake' being valued at more than half a 'million of dollars,) but also from the fact that the principle to be settled, must establish or overthrow the titlfes to nineteen-twentieths of the real estate in the city of Vicksburg; a city containing an enterprising population of from 5000 to 6000 citizens, who have built their homes and invested their fortunes upon the faith of the public records now sought to be vacated.
    As to John Lane’s competency, vide 4 Paige, 510, 511, and the numerous authorities there cited, showing that an inhabitant •of a town is ex necessitate, a competent witness in regard to questions as to the dedication of its street^, commons, &c. All the inhabitants have a like interest in all the streets. The fact that the inhabitant offered as a witness, chances to reside or own property on the particular street or commons whose dedication is disputed, may magnify the quantum of his interest in the controversy, but cannot change its character, which does not disqualify. So far then as Lane’s testimony relates to the acts of the commissioners, dedicating Levee street, &c., it must be competent.
    He is believed to be competent so far as he details the acts of his administration. First. Because he is a mere trustee or offi•cer. 1 Phillips, 40-1. Secondly. Because the conveyances out of which his liability is alleged to rise, were executed after the facts •occurred in reference to which he speaks, and by the voluntary creation of an interest, he cannot disqualify himself and deprive the public of his testimony. 1 Littell’s Rep. 105; 2 Starkie on Ev. 750. Thirdly. His interest arising out of that liability, is contingent and remote, and is not of that definite and certain character which will affect his competency, however it may his credibility. The bare possibility of an action being brought against a witness, is no objection to his competency.” 1 Term Rep. 163; 1 Coxe’s Rep. 332; 1 Phillips, 40-1, (in note.) Lane may never be sued on these covenants of warranty; and if he were the proceedings in this suit (to which he is no party) could not be given in evidence against him. He has no direct interest in the event of the suit, nor an interest in the-record.
    The objections to the questions propounded to Walcott, that they are leading, cannot be sustained for many reasons. It is a general rule that the cross-examination of a witness is a waiver by the opposite party of all irregularity in taking the deposition. 1 Peters, S. C. 307. Walcott was cross-examined by defendants, and no objection made before the commissioner, or the court below, to the maimer in which complainants’ questions were shaped. It is too late to spring the objection upon complainants in the court of last resort, which has no power to allow the deposition to be retaken, and where the surprise of an ambuscade like this (it is no less) would work irreparable injustice. By the agreement of counsel filed, exceptions to the competency of the testimony alone are reserved, and these exceptions must of course be taken before the chancellor. This is certainly not an objection on the score of incompetency. The witness is admitted to be competent, the subject matter of his answer is also competent. But the mode of extracting the answer, it is insisted, is somewhat informal, no more. Yet the party sits by, makes no objection, permits the questions to be answered, permits the deposition to be read before the chancellor, lulls the complainants into a false security, and now in the appellate court, starts this question de novo, upon which the court below never acted, and in reference to which, therefore, there is no judgment of that court before this tribunal to be reviewed, for reversal or confirmation. Upon a critical examination, however, it is believed, the question will be found not to be of a leading character, i. e., they do not suggest to the witness the answer desired. They are propounded in the usual form: “Did he or did he not,” &c.; and then follows such a description of the act inquired after, as will bring distinctly before the mind of the witness, the matter in reference to which he is interrogated. If this be not allowed, neither question or answer can ever be distinct or satisfactory. 1 Starkie on Ev. 114-5, (in note.) The objection is technical and trivial at best, and should not be indulged when the witness is intelligent and unsuspected, and the opposite party is present, takes no exception, but cross-examines him.
    That the oath of complainants of the loss of the plat is sufficient to admit parol proof of its contents, vide 1 Peters’s S. C. Rep. 596-7. The averment that a plat or paper was mislaid, might not autho-rise the introduction of secondary evidence, but the statement that it is lost, expresses a conviction as to the condition 'of the paper, which could only be based upon a previous' search, and, indeed, necessarily implies it. After the lapse of eighteen years, a fugitive, perishable plat like this, will be presumed to be lost or destroyed, it not having been seen in the meantime. The complainants are not charged with, or supposed to have its custody. If it existed, it would be among the papers of Newit Vick. The defendants, wljo are his heirs, are presumed to have his muniments of title. Their oath that no such plat was ever made, is tapta-mount to a declaration that it is not in their possession, nor among the papers of their father, of which they have charge. Connect this with the testimony of Lane, that he never saw it, though as administrator, he must have had constant access to the papers of Newit -Vick, and its loss is pretty clearly made out. The paper is functus officio, having been superseded by a more permanent plat, and upon that ground, parol evidence is admissible. This evidence was not objected to before the commissioners, nor before the chancellor. To entertain an objection to it now, would make litigation a system of masking and trapping. 2 Marshall’s Rep. 66, 576; 1 Tennessee Rep. 373; 3 Bibb, 86-7; 1 Call, 114-15; 3 Ibid. 233; 2 Pirtle’s Digest; Practice in Chancery.
   S. S. Boyd,

(one of the judges appointed to determine the cause,) delivered the opinion of the court.

The bill in this case was filed by the complainants in the superior court of chancery at the last July term, for the purpose of quieting their title to a tract of ground designated as “ commons” and “ Levee street,” on the recorded plat of the town of Vicksburg, and to enjoin and restrain the defendants from prosecuting several actions of ejectment, then pending in their favor, against the complainants in the circuit court of Warren county, for the recovery of the same tract.

A perpetual injunction was also prayed for, to prevent the defendants from proceedingfurther to erect permanent buildings, ware houses, and store rooms on the premises, to the common nuisance of the citizens of Vicksburg and the public. The title to this strip of land, lying between the front row of lots and the Mississippi river, and to the easement therein, and the use thereof, is claimed in the bill to be vested in the complainants as trustees and representatives of the rights and interests of the citizens of Vicksburg, by virtue of several acts of dedication, and the statutes of the state, constituting them a body politic. The answers of the defendants, denying any dedication of the property in controversy, and setting up affirmatively, their claim to it, under Newit Vick directly, or by derivative title, thus tracing their rights and interests, whatever they might be, to the same source with the complainants, narrowed the inquiry before the chancellor to a single question. The ultimate right of fee was not in controversy. Neither the full assertion of their fiduciary character, and the establishment of the easement by the complainants, nor the complete vindication of the acts of the defendants, in erecting the buildings and nuisances complained of, and in prosecuting their actions of ejectment, involved the decision of that point.

Indeed, the right to the fee might be decided to be in the appellants, in perfect consistency with all the claims set up in the bill, on behalf of the appellees. The easement is bufan incumbrance, and, if properly shown to exist, may be perpetual.

Both parties rested their title on Newit Vick, and recurred to him, as its only source: and the case, thus presented, leaves his estate, real and personal, as it stood at the time of his death, except so far as he had diminished or abridged it. It passes to his heirs general, unless that disposition is altered by devise: it passes absolute, and untrammelled, except by his act. The complainants, then, in order to have succeeded before the chancellor, in the prayer of their bill, must have shown that those whom they im-pleaded, had no just right to do the acts complained of; because those acts were inconsistent with the rights acquired by them, through their ancestor. So far as this controversy was concerned, the defendants, had, at all times, absolute and full right of possession to all the estate of Newit Vick, after his death; unless those who demanded the interposition of the court, could show a restriction or abridgment by him, of that right. This was the situation of the case, as it was presented to the chancellor; and, in granting the prayer of the bill, he, in effect, decided that the estate of Newit Vick, or that part of it embraced in the recorded plat of the town, was encumbered with an easement to the extent claimed in the bill, and that a perpetual right of possession to the “commons” and “ Levee street,” in opposition to the appellants, existed in favor of the appellees, as trustees, for the use of the citizens of Vicksburg.

The same points are now before us, on this appeal. And we are to decide, whether complainants have shown a case sufficient to prevent the defendants from asserting their title, by devise, from Newit Vick, to that portion of his estate here in controversy.

Their claim is of an incorporeal hereditament; a perpetual in-cumbrance or easement; and that claim is based upon the ground of a dedication, or appropriation for their benefit.

This dedication is alleged to have been made in various ways. As to that portion designated as “ commons,” in contradistinction from “ Levee street,” the acts of Newit Vick, in his lifetime, and of John Lane, as administrator, with the will annexed, are relied on as the foundation of complainant’s title. In regard to what is known as “ Levee street,” the claim of the easement is rested partly upon the proceedings of commissioners appointed by the probate court of Warren county, and partly upon the acts of Lane, as administrator, and of the heirs and devisees of the testator.

We do not consider these distinctions and divisions of much importance, except so far as they may aid in arranging and simplifying the various proofs, exhibits and pleadings, in the cause. The acts of dedication, if they exist, must, in order to affect the rights of the defendants, connect themselves with their ancestor, or proceed from themselves. The executor of Newit Vick, the administrator with the will annexed, and the commissioners of the probate court, in their appropriate spheres, represent the testator. Their acts are his acts, and his heirs and devisees cannot gainsay them. Their own acts stand upon the same footing; and they may also adopt or ratify what has been done by others, and thus make it their own, so as to be bound by it.

The questions, then, resolve themselves into these: — Has there been a dedication of the easement in question, by Newit Vick or his authority, or by the defendants themselves?

The common law rules, in reference to the acquisition of real property, and the rights and interests of a permanent kind, growing out of land, have been materially modified and relaxed by a long train of decisions, connected with the subject of dedication. A direct act of dedication would probably still require a deed or writing. 3 Kent, 434. And the act, of whatever character it may -be, by which the public right is claimed, must come from the owner of the fee; 4 B. & C. 574; 1 Str. 999; 5 B. & A. 454. And it must be done openly, and with a deliberate purpose. 1 Campbell, 262; 1 Greenleaf, 111.

Something of inaccuracy and confusion will be found in most of the American decisions, when an attempt is made to draw the distinction between express and implied dedications. The proof of a dedication to public or charitable purposes, may be of various grades. The terms implied,” or by implication,” should more properly refer to the testimony, or grades of evidence than to the fact to be proved. Prescription supposes a grant, and may amount to one, for all legal purposes; 3 Kent, 452. So a grant may be presumed, from circumstances inconsistent with any other supposition, and which estop the grantor, by matters in joats, from denying it; 6 Peters’s S. C. Rep. 439; Co. Litt. 56.

These remarks may serve to give greater certainty to our inquiries, as to what acts will be sufficient to establish the fact of a dedication of commons” or highways to public use.

For that purpose, a deed, or written grant, is certainly not required; 2 Strange, 1004.

Nor is it necessary that there should be a grantee in existence, to take the fee, out of which the incorporeal hereditament is to arise, at the time of the supposed dedication.

The authorities to this last point are numerous, and have been carefully examined by the court; they introduce a máterial deviation from the general principles of the common law; which would require a grantee in all such cases. The whole doctrine of contracts and grants, is based upon the idea of parties capable of contracting; and although in reference to the public, and their claim to easements in land, a looser rule has been adopted, yet the relaxation is not considered to go to the extent, that there can be a dedication or grant, without some party beneficially interested in it, besides the grantor.

The reason of the rule will fix its limits. In the case of Beatty v. Kurtz, 2 Peters’s S. C. Rep. 256, the dedication was for aburial place for the Lutheran church. It appeared that there never was, down to the time of the suit brought, any such incorporated church; but the society beneficially interested, had always used the ground as a burial place, from the time of the dedication. In 9 Cranch, 292, a similar state of facts was shown. And, in both cases, the want of a grantee was not suffered to defeat the interests of those beneficially interested. Public considerations were held to support the grant in favor of the beneficiary.

The decisions may be sustained on the ground that the proprietor should be estopped from asserting any claim, so long as the land remained in public use, or that no absolute divestiture of the fee was necessary to support the use; and, in either case, the enjoyment of the easement would remain perpetual.

The laying out of a public highway in the country, presents the same view. The land owner may be considered as estopped by his act of laying out the road, from interfering with the public right of passage and travel. Or he may be regarded as holding the fee, encumbered by his acts of dedication; and the general claim of the citizens can be sustained. The amount of the decisions seems to be, that the interests of those beneficially entitled to easements or dedications of a public, or charitable or religious character, will not be permitted to lapse or fail, for want of what is technically called a person, to take the legal title. The rule is expressly in favor of the equitable or beneficial claimant. It is iiltend-ed to support and defend his interest. He is the favored party, in the view of the law, and receives its peculiar regards. For his benefit, the strict principles applied to similar transactions with individuals, are departed from, and adapted to the nature and circumstances of the case, to carry into effect the object of the grantor, and to secure the benefit held out and expected to be derived from and enjoyed by the dedication;” 6 Peters’s S. C. Rep. 435. The public, sustaining this favored relation, must be a material party to the act, out of which its interest is supposed to arise. Upon no other ground can its claim be based. If it should be held that there could be a valid grant, without a grantee, and, at the same time, be decided that there need be no other party to the transaction, legally or equitably interested, except the grantor, it would necessarily follow, that the fee simple title in land might be incumbered, or fully conveyed away, by an act beginning and ending with the owner of it. Connected with this, take the principle that the grant may, in favor of the public, be without deed; and a complete divestiture of the largest estate known in the law, might be brought about by the mere volition of an individual, or by words uttered only in Iris own hearing.

Such conclusions are not warranted by any just view of the settled laws of the country. No one can lessen his estate in land but by some act which gives a right to another. Parties are necessary, as well to a dedication, as to a private grant. The authorities already referred to, clearly sustain the view here expressed. It will be amply supported by those to which we shall give our attention, in examining the next point.

The necessary parties being established, let us now inquire by what acts, according to adjudged cases, the right by dedication maybe granted and acquired. The case in 11 Wendell, 487, decides several important principles. It was there held, that the recognition, by a proprietor, in the city of New York, of the plan of the city laying out his grounds into streets, was a dedication of the streets, to be taken for public use, whenever the corporation should think proper to open them.

All the grantees from the same proprietor were consideredto have an interest in all the streets, and that interest was supposed to extend to every person liable to be assessed. The sale of a single lot, it was said by the Chief Justice, adopted the map and appropriated the ground as streets, and without the sale of any lot, the operation of the statute, by compelling him to make the streets, effected the same thing. The whole transaction is likened to a contract; and in 19 Johns. Rep. 186,that contract is said to be, in effect, “I engage to give the ground for the streets, according to the map, upon condition that the corporation shall ratify it.” The statute referred to is more fully noticed in 1 Wendell, 270, 271. It gives the corporate authorities the right to open the streets laid down on the city map by the commissioners, at the instance of three-fourths of the owners of lots, &c., and then regulates the assessment of damages. The streets until actually opened, are not regarded as highways, but the proprietors adjoining have a right of way over the lands of the grantor, from their lots to the public highways or streets.” In both of these cases, there had been sales of various parcels upon the tract of the proprietor, according to the city plat. Similar decisions, and depending upon the same considerations, are to be found in 2 Wendell, 472; and 8 Wendell, 85.

In Paige’s Reports, 513, these principles, as settled by the courts of law in the state of New York, are decided to be “ applicable to the case of a similar dedication of lands, in a city, or village, to be used as an open square or public walk.” The rule extracted from all the authorities above cited, is said to come to this, “ that when the owners of urban property have laid it out into -lots with streets and avenues intersecting the same, and have, sold lots with reference to such plat, it is too late for them to resume a general and unlimited control over the property, thus dedicated to the public.”

It is unnecessary to notice the points made or decided in the cases already briefly referred to, except so far as they are supposed to have a bearing upon the facts before, us; they abound in varied learning and ability, and give a clear view of all the rights of way, and easements, public and private, which grow out of the social system. The material point is, that the acts of a proprietor, within the limits of a city or village, of known and established boundaries, and 'peopled with inhabitants, by which a dedication may be established, must be either in themselves, or from the relation of the parties, of an open, palpable, deliberate, and public character.

The dedication, even, which is considered to rest on implication, such assent and user, sale at increased value, &c., requires that the testimony, or circumstances detailed in proof, which evince the appropriation, should be of the same kind, and absolutely inconsistent, according to the rules of law, and the obligations of good faith, with any other supposition. It is but the general doctrine governing presumptions in law. 2 Bl. Com. 93; 2 Term Rep. 81; 3 Bac. Abr. 107; 2 Atk. 83; 2 Bay, 340; Cro. Eliz. 300; Math. Pres. Ev. 16, 17, note 3334 et seq. 4 Camp. 16.

A thorough examination of the principles connected with this part of the case, was made by the supreme court of the United States, in 6 Peters’s S. C. Rep. 432 to 444, and 498 to 514.

In the first of these cases, the facts in evidence were sufficient to warrant the presumption of an absolute grant. Ibid. 439. It was, however held, that no particular form was necessary in the dedication of land to the public use; it only required the assent of the owner, and the fact of it being used for the purpose intended. The proof was that there had been a plat publicly made and exhibited, at the time of laying out the land in controversy, and assented to by all the proprietors; the lots in every part of the tract, were sold by them in reference to that plat, and the square, or commons reserved, had been used, from the time of the settlement of the town, by the proprietors and public together.

The court based their decision on the ground, that the right in the easement depended on the same principles, as the right to the use of the streets by the public; and at page 43S, it is said, “no one will contend, that the original owner, after having laid out streets, and sold building lots thereon, and improvements made, could claim the easement thus dedicated to the public.”

In the case at page 438, of the same volume, the dedication claimed was placed on the grounds of declaration to the citizens, at the time of laying out the tract; the reservation by a plat then publicly made and exhibited; and a use, long continued by the public, so far as the convenience of the citizens required. The use, however, was not considered material, if the dedication were absolute. The whole town had been settled, and the lots improved, in reference to the plat by which the sales had been made, and in the continued presence of the person' dedicating; although the particular street, or common, had not been regularly opened, and appropriated fully to its destined purposes, for many years.

These authorities strengthen and confirm the views already expressed, and they clearly illustrate who should be the parties necessary to every act of dedication, as well as the character of the act itself.

The principles and reasons of the same authorities also lead to another and most important conclusion, that the acts of individuals, wholly immaterial, and of no efficacy whatever in themselves considered, may acquire a strong and binding force, sufficient even to change the proprietorship and use of real estate, merely from the relations subsisting between the parties to such acts. Those relations may be the result of express contract, or of that accidental community of right and interest, which belongs to all organised societies, and arises from the presumed assent of the citizen to the laws, and municipal regulations, by which he acquires, holds and enjoys his property. We do not intend to quarrel with these decisions; but we are not disposed to extend their application. They have gone quite far enough in maintaining claims in favor of the public, against common right. 4 McCord, 98, and cases cited.

In pursuance of these views of the law, the drawing of a map, or. the recognition of one drawn by others, it has been seen, was held sufficient to bestow most important privileges. The implied acquiescence of the citizen, in the legislative and corporate enactments by which a portion of his real estate may have been brought, against His wishes and exertions, within the limits of a given city, or town, and the further presumption, as often false as true, that an individual in this situation, assents to the ordinances, by which land, thus forced from his own control, is surveyed and laid off, as the views and inclinations of others may direct, have been considered an ample warrant to deprive the •owner of large and valuable portions of his property. To these presumptions, all of them against the landholder, the law annexes one in his favor, and that is, that he will be presumed to have received an equivalent benefit, on an arbitrary and fancied estimate of the increased value of the remainder of his estate; a value which he can seldom realise, but in a single way, by making his property a thing of barter and sale, and throwing it upon the sweeping currents of traffic and commerce, contrary, perhaps, to the most cherished and powerful attachments and associations of life. The decisions, however, are such as we find them; and rigid and harsh as they must frequently be, in their operation upon private rights, it is not our purpose here to attack their judicial weight and sanction.

Examined in the light of these adjudications, so favorable to the community at large, the supposed acts of dedication, or those evincing a dedication, by Newit Vick, will not bear the test of legal scrutiny.

The mere intentions of the proprietor cannot be made the subject of speculation, or the foundation of right by the complainants. The declarations made by him, of those intentions and designs, as they were, in every instance, private, and, with an unimport-» ant exception, to the single individuals who detail them in proof, can have no greater efficacy for that purpose.

His offer to sell to one of the witnesses, and refusal to sell to another, as they met him in the prosecution of his own views, upon his own premises, are of the same nature and legal effect. There was nothing of publicity about them; they were accidental, isolated, individual transactions; out of which no rights were created, even as between the parties to them.

The drawing of the plats, under the circumstances of the case, was an act wholly private, and of no moment whatever, in this controversy. The first one spoken of, was merely a sketch in pencil, showing the extent to which he had proceeded in running his lines. As he went on, in the midst of his own field, he drew another draft of his work, and, probably, his plats kept pace with his daily labors. No legal consequences whatever can proceed from such acts, in favor of the public, or of individuals. No obligations, or duties, on either side, could be predicated upon them. It is expressly proved that these occurrences were all private, though not, in the language of the witnesses, “ confidential.” The very situation of the case shows that it must have been so.

Next; as to the sale of the lot on which Centre lived. Temple-ton swears positively, that Centre occupied his house and lot in the open field, before any lots were laid off, or the town commenced.” Walcott is uncertain upon the point; but Templeton is clear and explicit. Centre held by - sufferance, permission, or contract, with Vick; this is recognised in his will, and a conveyance is directed, when 300 dollars should be paid. This contract, whatever it may have been, was abandoned by Centre; and the premises, in pursuance of an understanding among the heirs, were conveyed to Hartwell Vick, or his children. The whole contract was one of private agreement, between Vick and Centre, before the commencement of the town; whether it had reference to the future city, never can be ascertained; but there were no interests connected with it, and growing out of it, except those of the contracting parties.

The last act relied upon, at bar, to show a dedication of the commons,” by Newit Vick, is the grant of lot No. 1, by deed to Rogers. The deed describes the lot as lying and being in the plat of the town called Vicksburg, on the Mississippi river, near the mouth of Glass’s Bayou; being the corner of Water and Centre streets.” The sale to Rogers must be considered in reference to the circumstances under which it was. made. The whole tract of 200 acres, which now constitutes the site of Vicksburg, was then a dilapidated and abandoned cotton field, or a wild, unsubdued forest. It was the sole property of Vick, wholly unoccupied, except by his tenant, Centre, and at a distance from any settlement. Rogers and Vick, at the time of the grant, stood alone, on the unpeopled banks of the Mississippi; and we know, nothing of their mutual understandings, conversations, or contracts, upon the subject, but from the deed, and the situation of the parties. The transaction was as private as the solitude of the wilderness could make it. What inferences, in this state of things, are to be drawn from the descriptive words in the deed?. In the first place, no particular plat is referred, to, and none is before us, corresponding, in all its parts, with this, so imperfectly noticed in that instrument. Water street and Centre street are not designated on the city plat; and the drafts, spoken of by the witnesses, had no street, but a public common, in front of lot No. 1. But, passing by this irregularity or defect in proof, it is clear that Rogers purchased with a full knowledge of the situation of things at the time. Vick’s intentions were not fully developed, even to his own mind. He was progressing with them, from the time of his first rough sketch, till his death. They were his owii private plans and designs, liable to be altered, modified, and changed at pleasure, or to be interrupted and broken up by accident. That they were never consummated, is positively proved. The descriptive words in the deed, referring to the boundaries by streets not yet opened, could not, under such circumstances, import more than an implied covenant to allow the grantee a convenient right of way, in those respective directions, to the next market road, or highway. They created a rural, and not an urban servitude. 19 Johns. Rep. 181-8; 4 Mass. Rep. 589; 8 Wend. 98-9; Matthews’ Pres. Ev. 336.

Even that implied covenant might be wholly changed, against the wish of the grantee, as to the mere direction in which the right of way should extend, by matters subsequent to the grant. 19 Johns. Rep. 187.

Again, if the easement claimed could be created by force of the mere description in this private act, the same result would follow, if the deed had been a deed of gift. The consideration of 400 dollars gives no strength or additional force to the words.in question. That circumstance might raise an equity in favor of the grantee, but would not affect, in the slightest degree, the terms employed in the conveyance. The question here is as to -the legal import of those terms, and the supposed rights of the public, growing out of their use: and we are clear, that no right, of any kind, under the circumstances, can be predicated upon them, except in favor of Rogers, and that was a' mere right of way, and of no permanent, fixed, or immutable character. ....

The advanced price, paid by Rogers, was much relied on by counsel. It is not clear what was the inducement for the purchase. The witness thinks the lot was sold at a high price, by reason of it being a front lot; but whether he alluded to the advantage as coming from the front on the river, or the front of the contemplated city, is not stated. Judging from Rogers’s acts, subsequently, he considered the value to consist in the command which it gave him of the area between him and the bank; for he improved it in a way absolutely inconsistent with any public use whatever; and it continues thus improved, to this day, -under the authority of the complainants. But, whatever was his inducement to give that sum for the lot, was a matter wholly between him and his grantor; and, under the testimony, we see no reason to suppose that he could ever have laid claim to any thing more from Vick, than the performance of the dry-covenants of his deed. If he acquired other rights, they extended over the whole tract; for it was all open and unoccupied alike, and even the supposed lots were all used as a thoroughfare.

One other view of this part of the cause. — Is there any thing in the testimony, or the situation of the case, to show that Rogers could not have released to Vick, at any time before his death, all the privileges, appurtenances, rights, and easements, public or private, springing from the deed to him? Certainly not. There was nobody else there, to raise any question about it. This is conclusive on the point; it shows that the whole transaction, properly weighed, began and ended with Rogers and Vick. There were no parties to it, but themselves; there were none in a situation to be affected by it, either favorably, or unfavorably; and, of course, none who could claim any thing of benefit or advantage from it. Rogers acquired rights by it, and he alone. But the question made upon this point, has not been, what Rogers acquired, but what the public acquired; and the response to it comes up from every page of the record; — there was no public there, at that time, nor for two years after, to acquire any rights whatsoever, in reference to the subject. At this stage of the case let us pause, and inquire, where the supposed easement in question could have vested, after the death of Vick, and till the first sale of lots, in 1822, by John Lane? It would be difficult to answer the inquiry in terms compatible with its existence any where.

We are satisfied the complainants cannot sustain themselves by a reference to the acts of Yick.

It remains to be ascertained, whether the dedication claimed has been made since his death, by his authority.

He appointed his wife executrix, and his son Hartwell Yick, and nephew Willis B. Yick, executors of his last will and testament. His wife died in a few minutes after him. Hartwell renounced, and Willis took out letters testamentary. The will contained a reservation of “ two hundred acres, on the uppermost part, of the uppermost tract, to be laid off into town lots, at the discretion of my executrix and executors.” He also enjoined it on his executors, to remember, that the town lots now laid off in the aforementioned two hundred acres of land, should be sold to pay my just debts and other engagements, in preference to any other of my property, for the use and benefit of all my heirs.” The only act of Willis B. Vick, bearing upon this matter, was an offer made by him to one of the witnesses, in reference to his taking some of the town lots in payment of a debt due from his testator. The offer was refused, a\id like a similar transaction with Newit Yick, was of no legal moment whatever.

We come next to the proceedings of John Lane. Can they be connected with any authority derived from Newit Vick?

John Lane was appointed administrator with the will annexed, at the October term, 1821, of the probate court of Warren county.

All his power was derived from that appointment. Was it legal?

The only authority of the probate court to grant letters of administration with the will annexed, is to be found in the special enactment of the statute. Turner’s Digest, p. 443, sec. 27. It is an express limited authority, and extends to two cases only. First, where the executor refuses to render an account. Secondly, where he becomes insane. The section, of course, presupposes that the executor or executors have once qualified, and taken upon themselves, the trusts of the will. After that, the jurisdiction of the court depends upon the two events contemplated in the statute, and is bounded by them. The reco'rd must show the jurisdiction, or,it does not exist. It is the general principle applicable to all inferior tribunals. In this case the order granting letters to Lane, was simply on his' own motion, and without cause assigned. So far as the record shows any thing, Willis B. Vick, the executor, was then acting in the discharge of the duties of his office. That fact is not material, however: the act appointing Lane does not state a case which gave the court jurisdiction, and it was therefore null and void. If .the facts had been stated, .their existence could not now be collaterally questioned, but a defect in jurisdiction may be noticed, whenever and wherever it appears. 6' Wheaton, 128; 8 Cranch, 21; 9 Pickering, 259; 2 Wils. 382; 1 Burr. 620; 1 Hayw. 414; 2 Peters’s S. C. Rep. 164; 1 Cooke, 194, 268; 1 Willes, 199; 1 Saund. 313; 1 Strange, 703; 2 Ibid. 102, 996.

• It is contended by counsel, that this defect is cured by the proceedings in evidence in the cause, showing, that Willis B. Vick was removed from office by an order of the superior court of Warren county, in September, 1821, reversing a decree of the probate court previously made. ' .

Neither the probate court, nor the superior court of the county, had any direct authority to remove an executpr for any cause. It was an incident to the power of appointment, which was exclusively delegated to the probate court. Certain acts were considered by the statute ' already referred to, as vacating the office of executor. There was no removal, except what was produced by the grant of the letters cum testamento annexo. This grant could alone come from the probate court, and, of course, any act of the superior court was without validity. The utmost the appellate tribunal could do, would be to reverse the decision of the inferior.

• But even if it be admitted, that the removal,'as an independent, and not an incidental act, might be made, it must still be for the same cause which' would justify the appointment.

And here again the jurisdiction must appear. That is not the case in regard to the judgment by which Vick was supposed to have been removed. It could have no weight. It was void.

Suppose it had appeared in the proceedings of the superior court, that the executor was removed for insanity, one of the causes named in the statute; still, unless that matter had been embodied in the records of the probate court, and made the foundation of the order appointing Lane, the grant to him would have been a nullity. The probate court is not authorised to exercise its jurisdiction on the mandate of any other court, but only on the very cases and facts set forth in the legislative enactments on the subject.

In this part of the case, we have given to the complainants the full benefit of the state of facts supposed by them; though it would be difficult to show their existence, by any examination of the confused and unintelligible entries of the inferior courts whose records have been under review.

It is unnecessary to notice, particularly, the proceedings of Lane, in creating the easement claimed. They were ample for the purpose, if he had possessed the authority. The witnesses show clearly and beyond all question, that the first and only acts of dedication of the commons, were performed by Lane at his sale of lots, in 1822, under his fancied power as administrator. He did it solely in virtue of that power, and every one so understood it. He named the open space commons,” because “ he thought it might as well be called by that, as any other name,” and not because it was a “commons,” or had been made so byNewit Vick. He did not know the boundaries, direction or limits of the supposed easement, although the pretended grantor had been dead more than two years, and he stood in the relation to him of a son-in-law. The testimony on this point is particularly full, and wholly rebuts any jjjgsumption of a dedication by Newit Vick, attempted to be drawn from his intentions, declarations, or acts.

It was said, however, that the doings of Lane will be sanctioned on a well known principle in equity; because they were such as the executor would have been bound to perform, in the exercise of tiij|^ji£retion left to him by the will. 1 P. A. Browne’s Rep. 89.

The rule cannot be carried to such an extent. It will, at most, only sanction the acts of an intruder upon a trust, where they are for the benefit of the trust fund, as in discharge of liabilities, payment of debts of an estate, and the like. It will never permit a stranger to experiment upon the discretion confided to an executor, by creating incumbrances, and parcelling out and selling real estate, and give validity to such proceedings on account of their supposed conformity to the wishes and designs of the testator. Heirs and devisees do not hold their rights by so feeble a tenure as this. Plowd. 282-3; 6 Coke, 30. b; 1 Lord Raym. 661; 7 Serg. & Rawle, 192; 4 Johns. Chan. Rep. 368.

The last ground of complainants’ claim, connected with Newit Vick, remains to be examined; and here it becomes important to notice several provisions of his will. It gave to his wife and children all his personal estate in equal shares; and made also a further provision for his wife. It then declares as follows: “ I will 'and dispose to each of my daughters, one equal portion with my •sons and wife, of all my personal estate, as they come of age, or marry, and to my sons one equal part of said personal estate, as they come of age, together with all my lands, all of which lands I wish to be appraised, valued and divided, when my son Wesley comes of the age of 21 years,” &c. &c. The clause of the will already quoted, in regard to the sale for the payment of debts, is the only other one to which it is necessary here to refer. It appears in evidence that Vick left nine daughters and four sons. John Henderson and Henry Morse, who had married daughters of Vick, petitioned the orphans’ court (Nancy Vick joining with them) for a division of the town lots, and an assignment of their respective shares. They state no grounds, except in the brief allegation, that they are entitled by the will. John Lane voluntarily appeared and answered the petition; and on his application, plenary proceedings were ordered, and the plaintiffs and defendant are directed to file their bill and answer at the next term of court.” Accordingly, Morse and wife, and Henderson and wife, at the July term, presented their bill, setting out their claim a little more at large, complaining of the course of Lane, and praying an allotment and division according to the statutes, and offering to give bond to refund, if it should become, necessary for the payment of debts. Lane’s answer denies their right to a division, and states his humble opinion to be, that it is a fair construction of the will, that the executors do sell the land, pay the debts out of the proceeds of such sale, and then distribute the balance among the children, heirs of Newit Vick.” On argument and examination, the division was ordered, and Lane appealed to the court of chancery, where this decision was affirmed. Commissioners were thereupon appointed to make the allotment and division. Their report with the plat annexed, was returned, and approved by the orphans’ court. On this plat “Levee street” is left open as commons for the public, and this is the foundation of the claim to that portion of the easement.

The whole proceeding was based upon a wrong construction of the will. The daughters of Vick acquired no right by the devise to this land of their father. The clause, from which then-supposed interest arises, warrants no such inference. The sale of the town tract was only enjoined, in case it should be needed, for the payment of debts, &c. It was not an absolute direction to the executors to sell the land, but only to appropriate it in payment of debts, in preference to the personal estate. And this was considered to be for the benefit of all his heirs. One consideration renders this construction certain beyond all doubt. If Vick had died leaving no debts, there would’ not have been a shadow of authority in the will for selling any portion of the tract. And this was not an unreasonable provision, for he might have desired the town site to remain in the hands of those who bore his own name, and so have left it to his sons, and directed it to be kept together, till Wesley Vick became of age. At the same time, as he had made provision for his daughters out of his personal estate, and reflecting that his debts might exhaust that entirely, his parental affection overcame his aspirations for fame, as the founder of a city, and he ordered the town property to be disposed of, rather than that his daughters should be deprived of the means of a comfortable subsistence. The orphans’ court took a different view of the subject, and the inquiry is, whether the proceedings of the commissioners, acting under their authority, can bind these defendants. We think not. They were not parties to them. The petition and answer show, conclusively, that the contest was between Lane and the two heirs, who sought the assignment of their respective shares. They do not ask any thing but the ascertainment of their own interests. Nor do they •name or allude to any other heirs, or devisees. It was their own claim they were pursuing, against the administrator who denied it. They refer to the new code just then enacted, and propose to give a refunding bond, as directed by the 91st and 92d sections on page 56, Revised Code, when a single distributee or legatee obtains his distributive share. It assumed the shape of a regular action in court, and the rules applicable to the one are applicable to the other. The parties concerned in it were bound and concluded by it, and no others. Rev. Code, page 61, sec. 112. These defendants were not only not parties to the contest, on the face of the pleadings, but they had no notice of it. Notice might perhaps have bound them, though their names did not appear in the petition or answer. It was said the act only required notice of the time and place of the meeting of the commissioners. The words of the section are certainly to that effect. But the first part of it declares the proceedings under it only conclusive on the parties concerned; by which we understand, persons before the court actually, or by return of process, or by publication. All such may properly be said to have had notice; or they may all come in, in the first instance, as petitioners, and this is probably the reason why the word notice is omitted in that portion of the sentence. Their interests aré sufficiently guarded by providing that they shall not be affected unless they are concerned in the controversy. The other notice, directed in the proviso, is intended as a double protection, so that all whose rights may be involved, can attend, even at the comparatively unimportant matter of the surveying and running the lines of the different shares. In addition to this, the 9th sec. of the probate act, gives the power to the court, and of course enjoins the exercise of it to summons and enforce the appearance of any person whose appearance in court shall be deemed necessary and proper for any purpose. That provision would, of itself, be conclusive on the matter.

The proceedings for the division of real estate under the direction of the probate court, are said to' be proceedings in rem, and therefore binding on all the world. The designation will not alter the nature of the transaction. They are special, statutory proceedings, and must be governed wholly by the statutes authoris-ing them. Like the attachment law, or the general act in relation to partition, of lands, they are wholly creatures of legislative enactment. But even in cases properly denominated suits, or actions in rem, the very reason why they are of such unlimited and universal obligation is, that all persons are supposed to have notice, and so may make themselves parties. This is by publication, citation, or monition in attachments, libels in admiralty, and the like. It is of no consequence what form of process, or summons, may be adopted or required. The legislature has a full right to give its own definition of notice, and when the lawful requisites appear, no citizen can deny the inference. If the inquiry could be extended beyond that point, and go to the fact of actual notice, it would in all cases require an examination into the capacity and degree of understanding in the party to be affected by it. For actual notice would most certainly depend rather upon the mental strength, information'and intellectual powers of the defendant, than upon the mere return of an officer upon a writ. This is not the principle, and we conceive, in the partition among heirs and devisees, the law requires notice to all who do not join in the petition, or they will not be bound by the acts of the court. 6 Wheaton, 119. It is of infinitely more consequence, that all those interested in the subject matter of the division, should be before the court ordering the allotment, than before the commissioners making it. For it is a well established principle, that the court settles the rights and respective interests of- the parties, in the first instance, and the freeholders appointed only act as ministerial officers, in laying off and ascertaining the boundaries of each share. It would be strange if the law had provided for that which was comparatively immaterial, and had left the transaction, which really fixes the whole matter, to be of an ex parte character. 1 Story’s Equity, 599; 17 Vesey’s Chan. Rep. 551.

Much reliance was placed on the confirmation by the supreme court, on appeal, of the decision of the probate court. The action of the appellate court did certainly settle the controversy between Lane and the appellees, Morse and Henderson. They can never question it further, but it gave no greater extent to the judgment of the inferior tribunal, than it would have had if no appeal had been taken. It imparted to that judgment, absolute verity and full force. That verity and force were confined to the parties to it, and these defendants were in nowise.affected by it. 1 Cooke’s Rep. 211. 362.

The acts of the commissioners, therefore, viewed in any light, cannot avail the complainants in this controversy. It would require strong and undoubted authority, to induce us to regard them as of any validity whatever. Here was a case, in which the petitioners, Morse and Henderson, with their wives, on the one side, had not a particle of interest involved, as has been shown by the true construction of the will of Vick. The defendant to it, the pretended administrator, was alike a perfect stranger to the whole subject matter before the court. The result was, that the real estate of the appellants was parcelled out and divided and an important portion of it, in perpetual use, was given away to the public. And this was brought about by an ex parte proceeding, begun and carried through by persons who had not a shadow of claim, legal or equitable,to the land appropriated. It would be a reproach to the law, if such a state of facts could find a sanction under its principles. We would not yield our judicial countenance to the doctrine contended for, unless compelled to do so by authority from which we could not dissent.

There is but one point remaining for our notice. Has the dedication in question been made or sanctioned by the defendants?”

One of the defendants is still an infant, the other two came to the years of majority in 1327 and 1828. It is said they have recognised the dedication made by Lane and the commissioners. Those acts have been shown to be void, and of course, incapable of any recognition which could give them validity. Contracts and various other transactions, by an infant, which are voidable by reason of his non-age, may be ratified, and made operative by him, when he becomes of age. This is not prejudicial to him, and slight circumstances may be sufficient to bind him. Here the acts referred to are not anything done by the infants, but the proceedings of strangers in derogation of their rights. 3 P. Will. 321; 9 Peters’s S. C. Rep. 607; Matt. Pres.Evi. 241. Their real estate has been conveyed away by others, and if any recognition of theirs can protect the transaction, it must be such a recognition as amounts to a release on their part, or is equal to an original conveyance of the property in question. The record shows no such acts, but proves the contrary in tlie most satisfactory manner. In 1827, the probate court, on application, directed the division contemplated in the will of Newit Vick. This was the very year the oldest of the defendants came of age. The property in question fell under this division. In 1828, the claim of the three Vicks, (defendants,) had become, every where in that region, publicly known, and in that year, and the next, they conveyed away by deed, portions of the land in controversy. In the year 1831, legal proceedings were commenced for the recovery of the “commons,” and from, that time to the present moment, their efforts in court have never ceased.

It is said their various deeds, exhibited in proof, refer to the commons and boundaries on the plat of the town. That is a circumstance of no force when it is considered that their claim was publicly known, and actually in process of litigation in the courts of the country. The plat was used mer'ely for the purposes of description, and easy and familiar reference. It could not, under the circumstances, have any further effect. There have been no acts on the part of these defendants, on which to predicate any portion of the claim set up in the bill.

As to the character in which the claimants assume to act. They refer to the statutes, incorporating the town of Vicksburg, as investing them with the authority to protect and secure the interests of all the citizens. The first act passed in 1825, is very vague, and it is by no means clear, that 'its terms would include any part of the commons or Levee street. The act of 1827 is distinct upon that head, and expressly adopts the plat returned to the probate court, by the commissioners in 1824. Among themselves the inhabitants of Vicksburg doubtless acquired an aggregate existence or character, by the statutes referred to. .The enactments of the legislature did nothing, and could do nothing, to aid the inherent defect in their titles. With the exception of the single purchaser from Newit Vick, they all come upon the spot by virtue of the tortious proceedings of Lane and the commissioners. They were, indeed, an aggregate corporation, or body politic, but so far as these defendants are concerned, they held their position by act of disseisin, and intrusion upon their inheritance. From this point in the case, let us now look back to the supposed dedication by Newit Vick, and for a moment, consider it as actually having been made by him. i How clearly and fully< does it appear, that these complainants, thus situated, can never be considered the public, to whom the easement was granted? They cannot connect themselves with the grantor, by any privity of contract, or mutual assent, so as to give any pretence of a right to be regarded as the favored objects of his bounty and regard. Their situation alone is a complete answer to their claim.

We have thus examined all the points deemed necessary to enable us to come to a conclusion on the appeal before us. We have given to the complainants the full benefit of all the testimony in the whole volume of the record, although a part of it was of an equivocal character, and some portions which were objected to, were probably inadmissible, according to the strict, technical rules on the subject. It has been all looked into and noticed, and although the facts of the cause are so different from any to be found in the books, that we should have felt warranted in deviating from some of the rules of adjudicated authority, if it had been necessary, or even in establishing a new rule, founded upon the settled doctrines and analogies of law; yet our examination has been chiefly limited to a dry and rigid investigation of the reported decisions; and we are perfectly satisfied that the claim set up by the complainants, as against these defendants, has no foundation in law or equity.

It has been suggested that disastrous consequences might flow from a decision, contrary to that made by the chancellor. We see no reason for any well grounded apprehension on that score. At all events, such considerations can have no influence here. Judicially we cannot regard them. Our duties begin and end with the case before us. Our vision is bounded by the record and the law.

We entertain no doubt that the decree of the chancery court should be reversed. We have, therefpre, directed the injunction, originally granted in the cause, to be dissolved, and the bill dismissed at the cost of the appellees.

Decree accordingly.  