#### TIRZA SPRINGS *and others against*WILLIAM HARVEN *and wife.*

1. Where words of inheritance are omitted in a deed, by the ignorance or mis- . take of the draftsman, a Court of Equity will supply them.

2. Where an executor sells lands, under a mistake of his power, and the proceeds are applied to the payment of debts, and the purchaser is evict*97ed by the heir-at-law, the land, in Equity, will be subjected to indemnify the purchaser to the extent to which it was liable to the debts — the purchaser being subrogated to the rights of the creditor.

Cause removed from the Court of Equity of Mecklenburg county.

On the 29th of April, 1829, Thomas Kendrick borrowed of Robert I. Dinkins $1200, and gave his note, payable one day after date ; at the same time he executed to James Dinkins, as trustee, a deed in trust for four hundred and fifty acres of land, lying on Sugar Creek, in Mecklenburg county, to secure the repayment of the same. The deed provides, that if the money is not repaid on or before the first day of the next January, it shall be lawful for the trustee to sell the premises and make the money ; but if it shall be paid on or before that day, the trustee is to reconvey the same to the said Thomas Kendrick and *Ms hews*and *assigns.*To which is added, a general warranty of the land to the said James Dinkins and *Ms heirs ;*but there are no words of inheritance in the conveying part of the deed; so that only an estate for the life of the trustee was, in law, conveyed to him. Thomas Kendrick died in October, 1829, and Stephen Fox administered on his estate. James Dinkins, the trustee, died in 1830, leaving a last will and testament, in which Lewis Dinkins was appointed executor, who duly qualified.

The money secured by the deed in trust not having been paid in the year 1830, Lewis Dinkins, supposing that he had power, as executor, to act as trustee, advertised and sold the premises at public auction, when the *cestui gue trust,*Robert I. Dinkins, bought the same at the price of $1660. ITe receipted the note held on Kendrick in full, for principal and interest, amounting to $1321,80, paid the remainder of the purchase-money, to wit, $338,20, (which was paid over to Eox, the administrator of Kendrick,) and took a deed in fee simple from Lewis Dinkins, the executor.

In 1832, Robert I. Dinkins sold the land in question and made a deed in fee for the same to Benjamin Person, *98wbo took immediate possession thereof, and on the 12th. of December of the same year, sold the same, by a deed in fee simple, to Eli Springs, the ancestor of the plaintiffs, who took possession, which he continued until his death in 1883, and the plaintiff Tirza, as the widow, and her children, as heirs-at-law of the said Eli Springs, have continued the possession ever since.

In 1845, the defendants, William Harven and his wife, Margaret, brought an ejectment against the plaintiff Tirza Springs, and having recovered judgment therein, were about to enforce a writ of possession, and to turn the plaintiffs out of possession. The plaintiffs, in their bill, allege that the omission of words of inheritance, in the deed from Lewis Dinkins to Robert I. Dinkins, was made by the ignorance or mistake of the draftsman, for that it was fully intended to convey the land in fee simple.

The prayer is for a correction of this deed so as to meet the intention of the parties, and for an injunction to stay the execution of the writ of possession, also for general relief.

The defendants answered. There was replication to the answer, also commissions and proofs taken. The cause being set down for hearing was sent to this Court.

*Boyclen*and *Wilson,*for plaintiffs.

*Osborne,*for defendants.

PeaksoN, J.

We are entirely satisfied that it was the intention of the parties *to convey*a fee simple estate by the deed from Kendrick to James Dinkins, and that the word “ heirs ” was omitted by ignorance or mistake on 'the part of the draftsman. Besides the stipulation that, upon the payment of the $1200, Dinkins is to reconvey to Kendrick and *his heirs,*and the covenant of warranty by Kendrick and *his heirs*to Dinkins and *his hews*and assigns, the obj ect of the deed, and the purpose for which it was made, speak for themselves and show that Dinkins was to have the fee simple, with the power to sell and raise the money in the event of default on *99tbe part of Kendrick. If tbis was tbe only difficulty in tbe way of tbe plaintiffs, they would have a clear equity for tbe conveyance and perpetual injunction as prayed for, under a familiar doctrine of tbis Court.

But tbe sale of Robert Dinkins was not made by James Dinkins, tbe trustee, but by Lewis Dinkins, bis executor, who bad no power to sell, and, of course, Robert Dinkins acquired no title to tbe land. To mend tbis difficulty, tbe plaintiffs must have recourse to another well established doctrine of tbis Court, namely, that of “ substitution.” According to tbis doctrine, tbe plaintiffs are not entitled to *the*land, but have an equity to be substituted to tbe place of the creditors of Kendrick, whose debts were paid with the money received from Lewis Dinkins, arising from the sale of tbe land. That money discharged debts for which tbe land was liable, and as tbe defendants take tbe land, of course they take it subject to the repayment of tbe money, by means of which tbe land was exonerated. *Scott*v. *Dunn,*1 Dev. and Bat. Eq. 425, is in point as to the application of tbe principle, and also as to tbe mode of redress. There it is said, “ Tbe doctrine of substitution is not founded on contract, but on tbe principle of natural justice; unquestionably the devisees cannot be injured by tbe mistake of the executor as to tbe extent of bis power over tbe land, but that mistake should not give them *wnfaw gawnsP*

In our case, supposing the mistake in reference to the omission of the word “heirs” tobe corrected, a resulting trust would have descended to tbe defendant Margaret, as heir of Kendrick, subject to the payment of tbe debt secured by tbe deed, and also to tbe other debts of Kendrick, which bis personal estate was not sufficient to satisfy. As to the debt seemed by the deed, tbe plaintiffs’ right to substitution is unquestionable ; but in regard to tbe balance of tbe purchase-money paid by Robert Dinkins to Lewis Dinkins, and by tbe latter paid over to- Eox, the administrator of Kendrick, tbe right of substitution will depend upon the fact whether that fund was liable for the payment of tbe other debts of Ken*100drick, and that will depend upon the sufficiency of *the*personal assets.

These facts can be ascertained by a reference, and there will be a decree for the sale of the land unless the defendants elect to pay said amount, with interest from the time of the sale, after deducting the rents and profits of the land. In other words, the land must stand as a security for the debts from which it has been exonorated, and thus, “ while the *defendants a/re not injured*by the mistake of the executor as to the extent of his powers, that mistake will not be made use of *to give them, unfair gams.”*

There must be a reference for an account, and the cause is retained for further directions.

Pee CueiaM. Decree accordingly.