#### *Carrington v. Goddin.

January Term, 1857,

Kiclimond.

I. Ejectment — What Interest Will Support.* — A party having an interest in or claim to land held adversely by another, may under the Code, ch. 116, § 5, p. 500, sell and convey tbe same; and his grantee may maintain ejectment for it.†

2. Wills — Construction of — Case at Bar. — Testator empowers his executors to set apart so much of his estate, not specifically bequeathed, as they may think sufficient to produce a clear annual income, by pent or interest, of two thousand dollars; which is directed to be distributed among certain legatees for life. And after some other unimportant provisions, he gives the balance of his estate among his nephews and nieces. And then he says, “And for the purpose of making such division with greater facility, I hereby give to my executors, or such of them as may choose to act, full power to sell or otherwise dispose of the whole or any part of said property, in such time and manner and on such credit as to them may seem most beneficial for the whole.”

1. Qtbbrb: If the legal title to the real estate vested in the executor.

2. Same — Executors Given Power to Sell Real Estate —Purchaser Need Not Show Necessity for Sale.— The executors had full power and authority to sell all or any part of the real estate; and a *bona fide*purchaser from them is not bound to show that such sale was necessary for the purpose of making division among the devisees.

3. Same — Same—Liability of Purchaser — Case at Bar. —A *bona fide*purchaser will not be affected by the failure of the executors to account for the purchase, money; and therefore evidence to prove such failure is properly excluded iu an action at law between a claimant under such purchaser and the devisees.

■ 4. Same — Same—Deed.—The executors by a deed reciting that it is made in execution of the powers vested in them, in consideration of an exchange of land made with A (one of the executors) and for the further consideration of one dollar paid by the purchaser, convey a lot belonging to their testator’s estate. *Such a deed on its face is not invalid; but passes the title to the purchaser.

5. Ejectment — Evidence to Vary Deed — Inadmissible. —In an action of ejectment by a party claiming under the purchaser against the devisees evidence to prove that the consideration of the deed was different from that expressed in it, is inadmissible.

3. Deeds of Trust — Case at Bar. — A deed of trust conveys two small lots in Adams’ Valley, with other property; and upon its face shows that it was intended to convey all the property of the grantor. In fact three lots had been conveyed to the ' grantor, though two of them fronted on the same street and adjoined each other, and both together fronted but sixty-two feet on the street, and they were uninclosed. _

*233a. Same — Prooí oí intention oí Grantor by Mis Own Testimony. — It is not competent to prove by tbe grantor that he intended to include both parcels of the lots in his deed, though there is no objection to his competency as a witness.

2. Same — Construction of.* -It it is doubtful on the face o£ the deed whether one or both of the parcels were intended to be conveyed, the deed will be construed most strongly against the grantor, and so as to give it effect, rather than that it should be void for uncertainty.

Same — Proof of intention by Grantor as Witness— identity of Lots. — Though it is not competent to prove by the grantor his intention to convey by his deed the land in controversy, yet he may identify the lot, and may show that it answers to the description embraced in the deed.

4. Ejectment — Possession oí Part — Verdict for All.† — In an action of ejectment, the tenant, without disclaiming title to any part of the land in the declaration mentioned, proves upon the trial that he is only in possession and claiming title to a part of it. A verdict and judgment in favor of the plain Lift for all claimed in the declaration, is not erroneous; or if it is, it is not an error by which the tenant is injured, or of which he can complain in an appellate court.

,5. Appellate Practice — New Trial — Verdict Contrary to Evidence.‡ — On a bill of exceptions to the refusal of the court to grant a new trial on the ground that the verdict is contrary to the evidence, the evidence. and not the facts proved, is stated. The court will reject all the parol evidence of the exceptor, and give full force and credit to all the evidence of his adversary; and will not reverse the judgment unless it then appears to be wrong.

This was an action of ejectment in the Circuit court of the city of Richmond, brought by Isaac A. Goddin against George M. Carrington, to recover possession of a lot in Adams’ Valley, fronting on Fifteenth street. The lot belonged to Richard Adams *in his lifetime. He died in 1816, possessed of a very large real estate in the city of Richmond, having first made his will, which was duly admitted to record in the Hustings court of the city. By the first clause of his will he says, “It is my will and desire that *my*executors hereinafter to be appointed, will set apart so much of my property, not herein specifically bequeathed, as they may think sufficient to produce a clear annual income, by rent of interest, of two thousand dollars. Which amount I wish them to pay, and I hereby give in manner following, viz: The sum of five hundred dollars annually to my sisters Tabitha, Elizabeth Griffin and Anna Carrington, and to my niece Sally Bland Adams, to be paid to each of them for and during her life.”

The testator then gives the burying ground including an acre, to his family, and one thousand dollars to his nephew Richard Eee Smith, which he says is all that this nephew is to receive from his estate; and then comes the residuary clause, as follows: “The balance of my property of every sort, kind or denomination, whether real or personal, in possession, expectancy or reversion, I give and bequeath to all my nieces and nephews, (except the two already herein provided for,) to them and their heirs forever. And for the purpose of making such division with greater facility, I hereby give to my executors, or such of them as may choose to act, full power to sell or otherwise dispose of the whole or any part of said property, in such time and manner and on such credit as to them may seem most beneficial for the whole ; provided that the old’ mansion-house, the two lots immediately attached thereto, and the four lots now used and enclosed as my garden, be assigned, at a valuation of twenty thousand dollars, to Richard Adams, the son of my brother Samuel G. Adams; and in case of his death under the age of twenty-one years, then *the property last mentioned shall be signed as aforesaid to Richard Henry Adams, the son of my brother John Adams, as so much of the legacy of the whole estate.

The testator appointed his brothers John and Samuel G. Adams and his brother in law William Marshall, his executors, and directed that they should not be required to give security, except that so many of them as qualified should become jointly bound. Marshall died in the lifetime of the testator; the other two qualified and executed bonds in the penalty of one million of dollars.

By deed bearing date the 20th day of January 1819, John and Samuel G. Adams, as executors of Richard Adams, *by*virtue of the power vested in them, “and for and in consideration of an exchange of land made with John Adams, and for the further consideration of one dollar paid by Thomas H. Drew,” conveyed to said Drew a lot in the city of Richmond, fronting on Eifteenth street, about thirty-three feet six inches, and running back of irregular width one hundred feet. This was the lot in controversy. And on the same day John Adams *234and wife conveyed to Drew another lot adjoining the first, and fronting about twenty-nine feet on the same street. It appears also that about the same time John Adams and wife conveyed to Drew another lot fronting forty-four feet on Fifteenth street, but not adjoining the'other lots.

By deed bearing date the 6th day of August 1819, the firm of Drew, Blair & Carroll, of which Thomas H. Drew was a member, conveyed to Andrew Stevenson and two others, all their property, social and individual, including their household furniture, in trust to secure certain debts due to the Farmers Bank and the Bank of the United States. In this deed is conveyed two small lots in Adams’ Valley, the property of Thomas H. Drew. In 1853 Stevenson the surviving ^trustee sold, and by deed bearing date the 14th day- of April of that year, conveyed to Isaac A. Goddin a lot fronting sixty-two feet on Fifteenth- street, embracing- both the lots conveyed to Drew by the two deeds of the 20th of January 1819, hereinbefore mentioned. And on the same day he conveyed to George W. Ruffin the other lot conveyed to Drew by John Adams and wife.

On the trial of the cause the plaintiff introduced in evidence the will of Richard Adams, the deeds of the 20th January 1819, the deed from Drew, &c., to Stevenson, &c., and the deed from Stevenson to him. The defendant then introduced in evidence the deed from Stevenson to Ruffin and the deed from John Adams and wife to Drew for the same lot. He also introduced evidence to prove that' he only claimed the lot conveyed by the executors to Drew, and that at the time of the conveyance by Stevenson to the plaintiff, he was in possession of that lot, claiming it as the property of Richard Adams’ estate, of which he was the administrator de bonis non with the will annexed, and was beside interested by devise, by purchase and as guardian of his infant children to the extent of one-third thereof. He proved that he entered it upon the assessor’s books in 1842 as the property of Richard Adams’ estate, and had paid the taxes on it ever since; and that in 1849 he had filled up the lot. And to show that the executors of Richard Adams had not duly executed the powers vested in them by his will, in executing the deed to Drew, but that said deed was a breach of their trust, offered to produce in evidence the settlements of the accounts of the executors, to show that they had never credited Richard Adams’ estate with anything as the consideration of said deed for said lot, and that moreover the executors, both of whom died insolvent, were largely in arrear to the parties- interested in said estate. But the plaintiff '^objected to the introduction of the accounts, and the court sustained the objection: Whereupon the defendant excepted.

The plaintiff introduced a witness to prove that the lot in controversy had not been enclosed by the defendant until a few days before the sale by Stevenson; and that it had previously been vacant for upwards of twenty-seven years. The plaintiff also-introduced Thomas H. Drew as a witness. He said that when he made the deed to Stevenson he meant to include in it all the property he had in Adams’ Valley. That he considered there were but two lots. That he never saw the deeds by which they were conveyed to him until long after the deed to Stevenson was executed, and did not know that there were three deeds, or that either of them was by the executors. That John Adams being indebted to him, and greatly embarrassed, proposed to let him have the lots for the debt, and promised to have them conveyed, and afterwards told him it was done. He had no treaty about them with the executors, but the consideration for them was the debt of John Adams: There was no exchange of land between him and John Adams. He said further that he never took actual possession of the lot in controversy: It remained vacant. That he had never paid taxes for it; though he supposed he had until within the previous eighteen months, when upon examination he found he had paid taxes on the other two lots, but not on that conveyed by the executors.

The evidence having been introduced, the defendant moved the court to give the following instructions:

1. If from the evidence the jury believe, that at the time of the purchase by the plaintiff of the property in dispute from Stevenson as trustee, the defendant held adverse possession, claiming to be entitled thereto, and had previously openly exercised acts of ^ownership over it, and for not less than ten years had paid the taxes-upon the property, then the plaintiff is not entitled to recover in this action.

2. That the aforesaid deed from John and Samuel G. Adams to said Drew was - on its face not a due execution of the power, and authority conferred by the will of Richard Adams, but a violation thereof and a breach of trust, which did not give the said Drew a legal title to the premises conveyed in the said deed; and that the said conveyance of Drew to Stevenson did not give him a legal title to the lot in dispute.

3. That if from the evidence the jury believe, that the lot in possession of the defendant and claimed by him is entirely a distinct lot from the two lots in the aforesaid two deeds from John Adams and wife to Drew; and that Stevenson under the trust deed from Drew and others, has sold those other two lots, and his right to do so as to them has not been disputed or questioned, then the jury are not authorized to consider the lot in the possession of the defendant as conveyed in the said trust deed to Stevenson, or that he had as trustee a right to sell and convey the same.

4. That the parol testimony hereinbefore set forth as given in by the witness Drew, that in his trust deed to Stevenson he meant to include the lot in controversy, was legally inadmissible, and they ought *235to disregard it in making up their verdict. But the court refused to give the said instructions; being of opinion, that a bargainee under a deed from a bargainor who was out of possession, and against whom adverse possession was held, may, under the Code of Virginia maintain ejectment in his own name; and also being of opinion that the deed from John and Samuel G. Adams as executors of Richard Adams, was at law on its face a sufficient execution of the power of sale and conveyance conferred upon them *by the will of Richard Adams: And likewise being of opinion that the matter embraced in the third instruction asked for was a matter entirely for the jury; and as to which no instruction should be given by the court.

The court also refused to give the fourth instruction; and in lieu thereof, the competency of Drew not being objected to, instructed the jury to disregard so much of his testimony as relates to what lots he meant to embrace in his deed of trust to Stevenson and others; and that they were to consider only that portion of his testimony which tends to identify the lot in controversy, and to show that it answers to the description embraced in said deed. Whereupon the defendant excepted to the opinion and decision of the court.

The plaintiff also asked the court to instruct the j.ury, that the evidence of Thomas H. Drew, in so far as it affects or discloses the consideration upon which the deed from the executors of Richard Adams to him was founded, was not to be regarded by the jury. This instruction the court gave; and the defendant again excepted.

There was a verdict and judgment for the plaintiff for all the land claimed in the declaration. And thereupon the defendant moved the court to set aside the verdict and grant him a new trial, on the ground that the verdict was contrary to the evidence: But the court overruled the motion; and the defendant again excepted, referring in the exception to the evidence stated in the previous exceptions; which it was admitted was all the evidence in the cause. Rrom the judgment of the court below the defendant applied to this *court for*a supersedeas, which was awarded.

Morson, for the appellant, insisted:

1st. That the court erred in instructing the jury *that the bargainee in a

deed from a bargainor out of possession, and against whom adverse possession is held, may, under the Code of 1849, maintain ejectment in his own name. He referred to Tabb v. Baird, 3 Call 475, Hopkins v. Ward, 6 Munf. 38, See v. Greenlee, Id. 303, to show that previous to the Code of 1849, such a party could not maintain ejectment; and he insisted that the purpose and effect of the act, Code, ch. 116, § 5, p. 500, was to do away with the illegality of making such deeds; *but not to*enable the bargainee to sue in his own name. And he further said that although in Taylor’s devisees v. Rightmire, 8 Leigh 468, it was held that devisees who had not had possession might maintain the action, yet that the language of the statute of wills of 1819, 1 Rev. Code, p. 375, upon which that case was decided, was very different from the act relied on to sustain this action ; and that there was wanting in the latter act the words upon which the judges rested their opinion in that case.

2d. That the court erred in instructing the jury that the deed from John and Samuel G. Adams as executors of Richard Adams, was at law on its face a sufficient execution of the powers of sale and conveyance vested in them. That the will of Richard Adams gave to his devisees the legal title to his residuary real estate, of which this lot was a part; and the executors had but a naked power, which must be strictly pursued to enable them to pass the title to a purchaser. 3 Horn. Dig. p. 272, 273; Sugd. on Powers 132, 133, 264; Banister & wife v. McKenzie, 6 Munf. 447; Halle v. Penwick, 4 Rand. 585; Allen v. Smith, 1 Leigh 231; Chapman v. Bennett, 2 Heigh 329; Stainback v. Read & Co., 11 Gratt. 281; Stainback v. Bank of Virginia, Id. 269; Bank of U. S. v. Beirne, 1 Gratt. 234; Jesse v. Preston, 5 Gratt. 120; Gibson v. Jones, 5 Leigh 370.

That the deed showed on its face that the power was *not properly exercised, as the consideration is stated to be an exchange of land, which the power does not authorize them to make, and which could not have been necessary for the purposes of the power. He referred to Spence v. Bagwell, 6 Gratt. 444; Mundy v. Vawter, 3 Gratt. 518, 550. He distinguished this case from Mosby v. Mosby, 9 Gratt. 584; and insisted that even if these executors had a trust coupled with their power, they did not therefore have the legal estate. Hill on Trustees, p. 238, marg. 334 top.

3d. That the court erred in refusing to give the third instruction asked for by the defendant, and in referring the question to the jury. The question was upon the construction of the deed from Drew to Stevenson ; and whether it passed the lot in controversy. To pass property the deed must describe it so as to identify it, otherwise it is void. 2 Horn. Dig. 191, § 5, 210, | 9.

4th. That the court should have given the fourth instruction as asked: the rule that parol evidence is inadmissible in such a question being well settled; 2 Horn. Dig. 192, | 8; and should not have given that asked by the plaintiff; as evidence of Drew thereby excluded went not to add to or alter the deed; but to fortify it as it appeared on its face; and proved that the deed from the executors was a fraud upon the power, and therefore utterly null and void.

5th. That there should have been a new trial. If any of the rulings of the court upon the trial were erroneous, it was good cause for a new trial. 2 Tuck. Com. 305; Guerrant v. Tinder, Gilm. 36. But *in*fact the plaintiff made out no case which entitled him to recover.

6th. That there was error in the verdict *236in finding that the defendant withheld the whole' premises claimed in the declaration, when the evidence showed that he was only in possession of a part, and set up *no claim to the rest. He referred .to 2 Starkie’s ®vi. 432, marg. pi. 5; Code of 1849, p. 560, *l*16.

Sands and Crump, for the appellee, insisted :

1st. That though it is true that the old rule as to the right of a bargainee taking a deed for land in the adverse possession of another, was as stated by the counsel for the appellant, yet that the rule had been changed by the Code of 1849, ch. 116, § 5, p. 500. This statute was intended to put grantees in deeds in the same condition as devisees in the wills; and although the verbiage of the statute of wills of 1819 is pruned down, yet the word “interest” is retained, which is certainly of as extensive meaning as any of the words that are omitted. Under that statute it was held that devisees never in possession might maintain the action. Taylor’s devisees v. Rightmire, 8 Heigh 468. They referred to the Code, ch. 135, § 4, p. 558, which provides that no person shall bring the action unless he has at the time of commencing it a subsisting interest in the premises and a right to recover it; and by *§*6, the name of the real claimant must be inserted as plaintiff: And thus if the action may' not be brought in the name of the bargainee the remedy is lost, as the bargainor has no subsisting interest in the premises.

2d. That the deed from the executors to Drew was a valid deed, and within the scope of their powers. That from the terms of the will, and especially from the provision as to the annuity of two thousand dollars, the legal title vested in the executors; and that their deed passed.it to Drew. 2 Horn. Dig. 382, top; 1 Id. 427; Taylor v. King, 6 Munf. 358; Mosby v. Mosby, 9 Gratt. 584. And they referred to the opinion of Judge Moncure in this latter case, as equally applicable to the present, and as showing that the executors were clothed with the title and a trust. That there was no fraud upon the face of the deed. *The exchange spoken of was not an exchange between the executors and Drew, but between John Adams in his own right and the executors; and even if it was with Drew it cannot be said that it is impossible an exchange could have been expedient for the purpose of a division of the estate. They also referred to 1 Sugd. on Powers 265, 331; Steele v. Devisay, 11 Gratt. 454.

3d. That the deed from Drew to Stevenson passed the lots in controversy. Although the two lots adjoining were conveyed to him by two deeds, yet they adjoined, and in fact constituted one lot; and by howsoever many deeds Drew received them, there was no necessity on him to describe them as other than they were. But if there was any ambiguity in the deed produced by extraneous proof, then it may be explained. 3 Horn. Dig. 139, marg.; Morrell v. Cook, 35 Maine R. 207.

4th. That as to the third and fourth points made by the counsel on the other side, the court excluded the evidence' of Drew except as to the identity of the lot, and referred tljat to the jury. That there was no ambiguity in the deed without his evidence, and it was therefore of no importance; but if it was, he might remove an ambiguity which he produced, by his evidence. As to the consideration of the deed, that was expressed on its face; and though you may prove other considerations of the same nature as those expressed, it is not competent to prove that the consideration expressed was not a consideration of the deed. As to fraud upon the face of the deed, that of course must be found in the deed itself; and as to the mode of proving fraud in a deed, that is stated in 2 Horn. Dig. 294, marg.; and in the Code, ch. 172, (j 5, p. 654.

5th. That the bill of exceptions to the refusal of the court to grant a new trial on the ground that the verdict was contrary to the evidence, is improperly taken, *the evidence being given and not the facts. Vaiden’s Case, 12 Gratt. 717, is the last case on the subject. As to erroneous rulings of the court, they have already been considered.

6th. That the verdict for the whole land claimed is correct. Code, ch. 135, *l*25, 27. The defendant did not disclaim title to any part on the record. But if it was error, it is one which cannot injure the appellant; and from which therefore he had no right to appeal.

*

Ejectment— Action of — What Title Will Support. — In the principal case it is held that, a party having an interest in or claim to land held adversely by another, may, under the Code of 1849, ch. 116, sec. 5, sell and convey the same, and his grantee may maintain ejectment (or unlawful detainer) for it.

Por the above, the principal case is cited and followed in Dobson v. Culpepper, 23 Gratt. 363.

In Mustard v. Wohlford, 15 Gratt. 339, the principal case is quoted from, but tbe case at bar is distinguished.

See monographic *note*on “Ejectment”; also, monographic *note*on “Unlawful Detainer ” appended to Dobson v. Culpepper, 23 Gratt. 352.

†

Code, ch. 116, § 5, p. 500. “Any interest in or claim to real estate may be disposed of by deed or will. Any estate may be made to commence *in futuro*by deed, In like manner as by will. And any estate which would be good as an executory devise 01-bequest, shall be good if created by deed.”

*

Deeds of Trust — Construction of. — That a deed will be construed most strongly against the grantor, and so as to give it effect, rather that it should be void for uncertainty, see the principal case cited and followed in Bank, etc., v. Green, 45 W. Va. 174, 31 S. E. Rep. 253.

†

Ejectment — Possession of Part — Verdict for Ail— The 7th headnote of Beckwith v. Thompson, 18 W. Va. 101, reads as follows: “In an action of ejectment against a single defendant, who pleads not guilty without disclaiming title to any part of the land named in the declaration, the defendant proves at the trial that he is in possession of and claims:'title to only a definite part of the land, a verdict and judgment for the plaintiff for all the land claimed in the declaration is not erroneous: or if erroneous, it is not an error, by which the defendant is Injured, or of which he can complain in the appellate court. See *Carrington*v. *Goddin, 13 Gratt. 588."*The principal case is also cited and followed in Messick v. Thomas, 84 Va. 894, 6 S. E. Rep. 482.

See monographic *note*on “Ejectment.”

‡

 Appellate Practice — Verdict Contrary to Weight of Evidence. — See *foot-note*to Dean v. Com., 32 Gratt. 912: also, monographic *note*on “Bills of Exception" appended to Stoneman v. Com., 25 Gratt. 887.

MONCURE, J.

The first question arising in this case is, Did the Circuit court err in instructing the jury that a bargainee, under a deed from a bargainor who was out of possession, and against whom adverse possession was held, may, under the new Code, maintain ejectment in his own name?

It is very clear that before the Code took effect, a bargainee of a party not in possession, actual or constructive, at the time of the execution of the deed, could not maintain ejectment in his own name, at least against the party at that time in the adverse possession of the land. His disability to maintain the action proceeded, not from the act against conveying or taking pretensed titles, 1 Rev. Code 375, but from the common law, whose maxim it was that nothing in action or entry could be granted over. A feoffment was void without livery of seisin; and without possession there could be no livery of seisin. 4 Kent Com. 448; 2 Horn. Dig. 8,' 9. The statute of uses, 1 Rev. Code 370, *\*29, did not remove the disability, because it only operated on a possession existing in the bargainor at the time of the execution of the deed,' and transferred that possession-to the use created or declared in favor of the bargainee. If no possession existed in the bargainor, of course none could be transferred to the bargainee. But the Code has changed the common law rule by *237'^declaring that “any interest in or claim to real estate may be disposed of by deed or will.” Ch. 116, *\*5, p. 500. That such a change was contemplated by the revisors, is manifest from their report, p. 602, § 5, and noiej. They recommended the adoption of a section similar to 8 and 9 Viet. ch. 106, *'i*6; in which “a right of entry” is expressly named. Instead of a dopting tha t section, which is complicated in its details, the legislature enacted the provision before quoted. Their object was to use brief and plain terms, which would be at least as extensive in their meaning as the terms used in the statute of Victoria. They could not have used more comprehensive terms than they did. A right of entry is certainly “an interest in or claim to real estate,” and may therefore “be disposed of by deed or will. ” If it may be so disposed of, the grantee or devisee may bring the action in his own name. The right of action is incident to the right of entry, and comes along with it to the grantee or devisee: otherwise it would exist nowhere; for it cannot remain in the grantor or devisor, who has disposed of the right of entry, and has no longer any interest in or claim to the land which can give him any right of action. There can he no right without a remedy, nor a remedy without a right. These views are strongly sustained by the case of Taylor’s devisees v. Right-mire, 8 Heigh 468, and the opinion of Carr, J., and Tucker, P., therein. It was held in that case that a writ of right may be maintained by devisee upon the seisin of his testator, under the statute of wills, 1 Rev. Code, ch. 104, *\*1, p. 375. The terms of that statute are certainly not stronger in favor of the right of action in the devisee, than the terms of the provision of the new Code, before referred to. I am therefore of opinion that the court did not err in giving the instruction in question. The second question is, Did the court err in instructing *the jury that the deed from John and S. G. Adams, as executors of Richard Adams, was at law, on its face, a sufficient execution of the powers of sale and conveyance conferred upon them by the will of their testators?

The question was much discussed in the argument of this case, Whether the power conferred on the executors by the will was a naked power, or a power coupled with an interest? In other words, Whether or not the executors were invested with a legal title to the estate? But in my view of the case, it is unnecessary to decide that question. It is true, that if trustees invested with the legal title to an estate conveyed it to another in plain violation of the trust, and even by a deed which on its face shows such violation, the title of the grantee is good at law, and resort must be had to a court of equity to set aside the deed. But it is also, I apprehend, equally true, that if the donee of a power make a sale and conveyance in pursuance of the power, the title of his grantee will be as good at law as if he had been invested with the legal title. The donor of the power being clothed with the legal title, and having empowered another to pass it from him in a certain way, the execution of the power in that way, as effectually invest the appointee with the title, as if it had been directly conveyed to him by the donor. The appointee takes the estate under the donor, and not under the appointor, who is a mere ministerial agent in passing the title. Thus we see the difference, and so far as concerns the present question the only difference, between the two cases of conveyance by a trustee invested with a legal title, and a conveyance by a donee of a power conferred on him by the owner of the estate conveyed. In the former case, the trustee may pass the legal title as any other owner may. In the latter, the donee of the power can pass it only in the prescribed *mode. But having passed it in that mode, he places the grantee on the same impregnable ground at law, which is occupied by a grantee in the former case. In either case, the title, though impregnable at law, is assailable in equity; and on the same or similar grounds: As where the trustee or appointor has committed a breach of trust or fraud in the execution of *the*trust or power, in which the grantee participated; or of which he had notice; or for which he may be otherwise responsible. An illusory appointment, if made in pursuance of the power, is good at law, and is assailable alone in equity on the ground of fraud. The obligation of a purchaser in certain cases to see to the application of the purchase money, is an oblig-ation which does not affect his legal title, and can be enforced only in equity; whether the purchase be made from a trustee invested with the legal title, or in pursuance of a mere power of sale. A bona fide purchaser without notice from one clothed with a mere power of sale, but who, in making the sale and conveyance, has pursued the terms of the power, is entitled to the same advantage and protection with such a purchaser from a trustee invested with the legal title.

Having stated the principles of law which bear upon the question under consideration, in my view of it, let us now see how they apply to this case. The will certainly confers very extensive power and discretion upon the executors in regard to the whole estate, real and personal. By its first clause it empowers them to set apart so much of the testator’s property, not specifically bequeathed, as they may think sufficient to produce a clear annual income, by rent or interest, of two thousand dollars; which is directed to be distributed among certain legatees for life. And after giving the family burying ground to certain of his relations, and one thousand dollars to one of his ^nephews, it gives the balance of his estate to his nephews and nieces, (except the two thereinbefore provided for). It then proceeds in these words: “And for the purpose of making such divisions with greater facility, I hereby give to my executors, or such of them as *238may choose to act, full power to sell or otherwise dispose of the whole or any part of said property, in such time and manner and on such credit as to them may seem most beneficial for the whole.” And then follows a proviso in regard to the old mansion-house lots and thereto appurtenant.

The executors are required to set apart a very large amount of property or money, sufficient to produce a clear annual income, by rent or interest, of two thousand dollars. To do this, it might have been, and probably was, necessary to sell a portion of the estate, real or personal; and whether necessary to do so or not, a purchaser from them would not be presumed to know, and if he acted bona fide, would be protected in his purchase. In the residuary clause full power is given to the executors to sell or otherwise dispose of the whole o.r any part of the residuum, in such time and manner, and on such credit as to them may seem most beneficial for the whole. It is scarcely possible to conceive broader terms in which a power of sale or. disposition could be given. It is true this broad power is given ‘ ‘for the purpose of making such divisions with greater facility.” But surely this sentence was not inserted in the will to make the necessity of a sale for the purpose of a division, a condition precedent to the exercise of the power. If it had been, then, undoubtedly, no title could have been acquired under the power unless the condition precedent existed; and the burden of proving- its existence would devolve on the purchaser in order to maintain his title. This might be very inconvenient, if not impossible. But he who owns an estate may prescribe the terms *on which alone it shall cease to be his; and they who deal for its acquisition must take care that all the prescribed terms and conditions are strictly complied with. Upon this principle it has been held, that if a mere power be given to sell real estate for the payment of debts in case the personal estate should be deficient, the power does not arise unless the personal estate be actually deficient; and that a purchaser must, at his peril, ascertain the fact, notwithstanding that the purpose provided for be the payment of debts generally. Whereas a mere power to sell for payment of debts generally, without such a condition precedent, would not impose upon the purchaser the obligation of seeing to the application of the purchase money, much less invalidate his title at law in case the purchase money should be misapplied. 1 Bom. Dig. 246, Marg.; Sug. Baw Ven. 847. But a reasonable construction must be put upon the will to ascertain whether the testator intended to make the necessity of a sale for the purpose of division, a condition precedent to the exercise of the power. We must not construe the will in reference to what has since transpired, but must go back to its date, put ourselves in the place of the testator, in the midst of all the circumstances which then surrounded him, and thus ascertain the meaning of his language. He must have intended to have his estate disposed of to the best advantage for the benefit of his residuary devisees. To have imposed upon every purchaser the burden of ascertaining the actual necessity for a sale, would have defeated the purpose of the power, or greatly impaired the capacity of his executors for its beneficial execution. An intention to create such a clog, ought to be shown by plain words, and not left to be inferred from doubtful ones. As to the nature of these conditional powers, and their impolicy and inconvenience, see Hill on Trustees 478 ; 2 Sug. Pow. 503. The preliminary *words in the clause conferring the power in this case were-used merely to show the purpose for which it was conferred, and not to create a condition precedent to its exercise. A power of sale coupled with a trust is always conferred for some purpose; which is generally expressed on the face of the power: but such expression of purpose rarely creates a condition precedent to the exercise of the-power. The power does not depend in this case on the necessity of a sale for the purpose of division — -such a necessity is not mentioned in the will, and was not contemplated by the testator. The power was conferred “for the purpose of making such division with greater facility.” But whether, and to what extent, and in what manner, it would be proper to exercise 'it, was left to the sound discretion of the executors, subject alone to the control of the courts. The testator selected for the execution of the power and trust, his brothers and brother in law, in whom he reposed great confidence, and of whom he required no security as executors, except each for the other. They were the fathers of some, if not most, of the residuary devisees, and were doubtless men of high character and great responsibility. The estate entrusted to their care by the testator was of immense value; the penalty of each of the two executorial bonds which were given, being a million of dollars. He gave them full power - to sell or otherwise dispose of the whole or any part of the property in such time and manner and on such credit as to them might seem most beneficial for the whole. Whether most beneficial for the whole or not, was referred alone to their discretion. The necessity, or even expediency, for a sale of the whole for the purpose of making a division with greater facility, was hardly possible. And yet, full power is ¡given to sell the whole or any part: as if to remove all restraint, and give assurance to purchasers that they might deal *with the executors without doubt as to their capacity to confer a good title. The trust, was to be one of long duration, and tó be executed at different times. The beneficiaries were numerous, and many if not most of them were probably infants. The large subject directed to be set apart to produce the annual rent or interest of two thousand dollars, could only be divided among the residuary devisees, as or after those to whom that income was *239given, died. The old mansion-house, with certain lots thereto appurtenant, was directed to be assigned, at a valuation of twenty thousand dollars, to one nephew, and in case of his death under the age of twenty-one years, to another nephew, as so much of his share of the whole estate. The testator seems not to have contemplated that a final division would be made among his residuary divisees until after they all arrived at the age of twenty-one years: though he no doubt intended that in the meantime partial divisions might be made among them and advancements made to them, in property or money, as occasion might require; to be accounted for in the final division.

In view of all these circumstances I am of opinion that the power of sale, though conferred on the executors for a special purpose, was yet to be exercised at their discretion ; that for the proper exercise of that discretion a bona fide purchaser from them for .valuable consideration was not responsible ; and that a deed purporting to be a conveyance by them to such a purchaser in pursuance of the power, would at law, on its face, be a sufficient execution -of the power. But the question is, Whether the deed under which the defendant in error claims in this case, has that effect? There can be nothing on the face of that deed which can affect its validity, unless it be the words “and for and in consideration of an exchange of land made with John Adams, ’’inserted therein. *It was argued by the counsel for the

plaintiff in error, that the deed shows on its face that it was executed in consideration of an exchange of land made with John Adams, one of the executors, individually, by the grantee Drew, and not for the purpose of making a division among the residuary legatees. It was argued on the other hand by the counsel for the defendant in error, that these words, taken in connection with the context, show that the exchange of land referred to was made with John Adams by the executors of Richard Adams, and not by Drew. I think the latter is the true construction. The deed refers to the will of Richard Adams, recites the power of sale therein contained, purports to be executed by the executors by virtue of the power vested in them, and contains covenants exclusively relating to the said testator’s estate; thus indicating that the exchange which was the consideration of the deed had been made by the executors in the execution, or supposed execution of their trust. The words before quoted consist with this view; and rather with it than the opposite. The executors, “by virtue of the power vested in them, and for and in consideration of an exchange of land made with John Adams, and for the further consideration of one dollar by the said Drew to them in hand paid,” have granted, &c. That is, “the executors, in consideration of an exchange of land made by them with John Adams,” &c. The substantial consideration, to wit, the exchange, passed between John Adams and the executors. The nominal consideration, to wit, one dollar, was paid by Drew to the executors. Regarding this as the true construction of the words in question, Do they invalidate ihe deed at law? I think not. ‘ The only ground on which it can be contended that they do, is that the executors had no power to make an exchange of land, especially with one of themselves. They had ! ‘full *"power to sell or otherwise dispose of the whole or an}' part, &c. as to them might seem most beneficial for the whole,” &c. It might have seemed to them most beneficial for the whole to make an exchange of land with John Adams, “for the purpose of making the division with greater facility.” We may well suppose that the estate consisting perhaps of many parcels of land in different parts of the city, it might have been highly beneficial to the parties concerned, and much facilitated a division among them, to have made an exchange of some of the land for other land which was more salable, or which, by being attached to some other land belonging to the estate, rendered it more desirable, and more susceptible of easy division. In such a case, did not the testator intend to empower his executors to make the exchange? If not, what did he mean by giving them power, not only to sell, but otherwise to dispose of the whole or any part? Might not an exchange be a convenient and beneficial mode of executing even the power of sale? An owner of a large estate in detached parcels, in selling at different times to different persons, often finds it convenient and prudent to sell portions of it for other property more easily or advantageously convertible into money. An exchange, it is true, is not a usual mode of making partition or making a sale; but it might be proper; and it would be too much to say that the executors, in this case, had no power under any circumstances or to any extent, however small, to make one. It does not ajipear to what extent the exchange was made. The record only shows that John Adams thereby acquired a small lot of little value in Adams’ Valley; for which he may have given in exchange another lot of much greater value to the testator’s estate. Then, does the circumstance of its being made with one of themselves ipso facto render it void? I think not. A trustee cannot be a purchaser *at his own sale. But then the purchase is only voidable, not void. It may be for the interest of the beneficiaries; who may therefore choose to let it stand. They have an easy mode of avoiding it, if they elect to do so. But that is by a suit in equity, brought in proper time; and not by an objection to the title of ihe purchaser in a suit at law, especially after a great lapse of time, and after the title has passed to bona fide purchasers without notice of any such objection. 1 Sugd. Daw Vend, ed. of 1851, p. 62, marg. ; 2 Id. 887, and notes. An exchange stands on the same footing with a sale in this respect. I am *240therefore of opinion that the court did not err in refusing to give the second instruction asked for by the plaintiff in error, nor in giving the instruction which it did in lieu thereof.

Thirdly. Did the court err in refusing to give the third instruction asked for by the plaintiff in error, and saying that it was a matter entirely for the jury?

The deed from Drew to Stevenson conveys “two small lots in Adams’ valley.” There is no patent ambiguity. A deed conveying all the land of the grantor in a certain county, is not void for uncertainty. Van-meters’ ex’ors v. Vanmeters, 3 Gratt. 148. Nor is a deed conveying all the estate both real and personal, to which the grantor is entitled. Mundy v. Vawter, Id. 518. Though notice of such a deed as the latter would not affect a subsequent purchaser from the grantor unless he had notice that the land purchased by him was embraced by the deed. Id. If Drew had only two small lots • in Adams’ Valley, then there was no latent ambiguity, and these two lots passed by the deed.. But it is contended that if he owned the lot in controversy, he had three small lots in Adams’ Valley, and that the deed is therefore void for uncertainty; or, at least, did not pass the lot in controversy. It is true that one of the lots owned by Drew in *Adams’ Valley was composed of two small lots, one of which had belonged to Richard Adams, and the other to John Adams. But John Adams had acquired the former from the executors of Richard Adams, no doubt with the view of adding it to the latter, which was too small to be of much value; and afterwards sold the lot, composed of the two small parcels, to Drew. The two parcels were conveyed to Drew by different deeds, because Richard Adams’ executors had made no deed to John Adams, (who was one of them;) and therefore Richard Adams’ executors made a deed directly to Drew for one parcel, while John Adams made a deed to him for the other. But the two deeds bear date on the same day, and are parts of the same transaction. The two parcels, when they became the property of one owner, he-came but one lot; which well answers the • description of a small lot, fronting but sixty-two feet on Fifteenth street, and running back about one hundred feet in the form of a wedge. Drew owning this lot and another in Adams’ Valley, (which other had also at the same time been derived from John Adams,) shortly thereafter executed the deed to Stevenson, conveying “two small lots in Adams’ Valley.” That that deed embraced the parcel of land which had belonged to Richard Adams as aforesaid (and which is the land in controversy) is evident, not only from what has been already said, but from the intention plainly apparent on the face of the deed to convey all the property of the grantors. But even if it were doubtful whether one or both of the parcels aforesaid were intended to be conveyed, I would construe the deed most strongly against the grantor, and so as to give it effect, rather than that it should be void for uncertainty.

Fourthly. I think the Circuit court did not err in refusing to give the fourth instruction asked for by the plaintiff in error, and giving the instruction which it did in lieu thereof.

^Fifthly. I think the court did not err in sustaining the objection of the defendant in error to the admissibility of the recorded settlements of the accounts of Richard Adams’ executors, which the plaintiff in error offered to produce in evidence. The deed being made by the executors to Drew in consideration of an exchange of land between the executors and John Adams, and not of money paid to them by Drew; of course the executorial accounts would show no credit to the estate for the price of the land conveyed. But the deed being at law upon its face, as I have already endeavored to show, a sufficient execution of the power of sale and conveyance conferred by the will of Richard Adams upon his executors; it follows, as I have also endeavored to show, that the title of Drew under that deed was good at law, and cannot there be impeached by any evidence of a breach of trust by the executors in not accounting for the price of the land conveyed. Therefore the settlements which were offered for that purpose were irrelevant and inadmissible evidence.

Sixthly. For the same reason, I think the court did not err in giving the instruction asked for by the defendant in error, that the evidence of Drew, in so far as it affected or disclosed the consideration upon which the deed to him from Adams’ executors was founded, was not to be regarded by the jury. That evidence was introduced to show a breach of trust by the executors; for which purpose, according to what has been said, it was inadmissible. ' But it tends to confirm the construction I have put upon the deed and to repel that construction, which would make the deed a breach of trust on its face. In any view of the evidence, it was properly excluded.

Seventhly and lastly. Did the court err in overruling the motion of the plaintiff in error for a new trial on the ground that the verdict was against law and evidence? *The objections taken to the rulings and opinions of the court during the trial,' which are also relied on as grounds for a new trial, having already been considered and disposed of, it is unnecessary to notice them any further. The remaining ground relied on is that the verdict was contrary to the evidence. The bill of exceptions states the evidence of the witnesses examined on the trial, instead of the facts appearing to the court to have been proved by such evidence. This court cannot therefore, according to our well settled practice, take cognizance of the case and reverse the judgment, unless by rejecting all the parol evidence for the exceptor, and giving full force and credit to that of the adverse party, the decision of the court below still appears to be wrong. The application of *241that test puts an end to the ease. But looking at the whole evidence, I do not think that the judgment ought to be reversed on the ground that the verdict was against the evidence. The only objection taken to the verdict under this head is, that it is for the whole lot claimed in the declaration, while the evidence shows that the plaintiff in error was in possession of, and claimed title to, only a part of the lot, viz: the part conveyed to Drew by the executors of Richard Adams. The plea of not guilty put in issue the title to the whole lot, and gave no notice of an intention to claim only a part. The evidence showed that the defendant in error was entitled to the whole, and that the plaintiff in error was in possession of, and claimed title to a part. On this evidence the jury properly rendered a verdict for the premises in the declaration mentioned. Code, ch. 135, f 25, p. 561. At all events, if there be any error in this respect, it is not an error to the prejudice of the plaintiff in error, and therefore the judgment should not be reversed on that ground.

I am of opinon that there is no error in the judgment, and that it ought to be affirmed.

' *SAMUI®S, J.

In my opinion the will of Richard Adams conferred on his executors a mere power over his real estate; that it gave them (amongst other things) power to set apart so much of the real estate as they might think sufficient to produce a clear annual rent of two thousand dollars, for payment of annuities for the lives of the annuitants; that if the executors thought proper to exercise this power, by setting apart real estate for this purpose, then the direction to the executors to pay the rent for the lives of the annuitants, must be held, by implication of law, to confer an estate of equal duration upon the executors; that as the interest of the annuitants respectively expired, the residuary devisees would succeed to their portions. That in this mode, to this extent and for this purpose only would the executors acquire any interest in the testator’s real estate ; not by devise directly from him, but by virtue of the power conferred on them.

I am further of opinion that the consideration mentioned in the deed'of bargain and sale from Adams’ executors to Drew, must be held to move from the bargainee. This consideration is of two parts, to wit: “an exchange of land with John Adams,” “and for the further consideration of one dollar by the said Drew to them in hand paid, ’ ’ &c. The parts of this consideration seem to have taken different directions; one having gone to John Adams alone in his own right; the other to the executors as such. If the executors, as such, had made an exchange with John Adams acting in his own right, it is difficult to perceive why the fact should be mentioned in their deed to Drew, or how it could be regarded as a consideration paid by him; yet without doubt the substantial consideration Vías the exchange, and not the nominal sum of one dollar.

Holding then that the deed was intended to perfect *an exchange between John Adams and Drew, I cannot find any authority to make it in the power conferred by the will, large as it is. I am of opinion, therefore, that the judgment should be reversed, for the reason that the Circuit court erred in refusing to instruct the jury that the deed was invalid.

I concur in the opinion of Judge Moncure on the other questions presented by the record.

ABBE®, P., and BE®, J., concurred in the opinion of Moncure, J.

DANIEL, J.,

concurred generally in the opinion of Moncure, J. ; but was inclined to think that the power to provide for the annuities vested the executors with the legal title; and therefore if the ground taken by him was not sound, still their conveyance would be valid.

Judgment affirmed.