#### *Ann McNish et al.*v. *Benj. E. Guerard et al.*

Charleston,

Jan. 1850.

Where a tract of land was conveyed to a father in fee, as trustee, in trust for his children then alive and named in the deed, and such other children as may be born of the body of his wife, “ to be divided among them equally, share and share alike: And until such division shall take place, to be occupied and used entirely and specially for the maintenance and support of the aforesaid children;” the Court *held,*that the legal estate in the land vested, not in the father, but in his existing children named in the deed, subject to open and admit such other children as his wife might have.

A married woman who had a legal interest under a deed, and who held it out as an equity, and applied for trustees to protect it as such, with the design of procuring the sale of the supposed legal estate of the trustees, freed from the equity, was not allowed, upon discovering her mistake, to visit its consequences upon a purchaser whom she had thus misled. Her bill praying relief, dismissed without prejudice.

Where the bill prayed partition of a tract of land, a distributee who had conveyed his share to another, and who resided in the State of Georgia, was *held*not to be a necessary party.

In the transfer of a trusteeship, a conveyance from the original trustees to their successors is not necessary. The practice is to make such transfer by order of the Court, in accordance with the Act of 1796 — 5 Stat. 277.

*Per*Johnston, Ch.

*Before*Johnston, Ch. *at Gillisonville, Feb. Sittings,*1849.

On the 29th of January, 1829, Dr. Thomas E. Screven conveyed in fee, a certain tract of land called “ The Bower,” *67and described in the pleadings, to John McNish, as trustee of his eight children, Honoria McNish, John H. McNish, Charles L. McNish, Thomas J. McNish, Laura McNish, Mary C.v McNish, Jane D. McNish, and Susannah McNish ; “ to have and to hold the said tract of land,” &c. “ in trust for the aforesaid children, and such other children as may be born of the body of Ann McNish, wife of John McNish; to be divided among them equally, share and share alike: And until such division shall take place, to be occupied and used entirely and specially for the maintenance and support of the aforesaid children.” It does not appear that this deed was ever registered.

On the 5th of February, 1831, the same grantor conveyed, in fee, a certain other tract of land, also described in the pleadings, and known by the name of “Stock Farm,” being adjacent to the former tract, to Jeremiah Fickling and Richard J. Davant; “ to have and to hold," &c. “ upon this special trust and confidence, that they the said Jeremiah Fickling and Richard J. Davant, and the survivor of them,” &c. “ do permit and suffer the said Ann McNish” “ to take the rents and profits of the said land,” “for and during the term of her natural life; and from and immediately after the decease of the said Ann McNish, then in trust for all and singular such child, or children, as she, the said Ann McNish, shall at the time of her death, leave alive and surviving her, share and share alike, as tenants in common, and not.as, joint tenants, their heirs, executors,” &c. “ absolutely forever.” This deed was duly registered in Beaufort, where the land lies, the 7th of March, 1831.

A petition, (which does not appear to have been put in evidence in this case) seems to have bpen presented in the name of Mrs. Ann McNish, the *cestui que trust*for life, under the last mentioned deed, praying that her sons John H. and Charles L. McNish be substituted in place of Fickling and Davaut, the trustees. This petition was referred; and upon the coming in of the report, it was ordered that they be substituted accordinglythis substitution to take effect upon a copy of the order by which it was made, being endorsed on the original trust deed and duly recorded, as required by law. This order was made the 27th of January, 1838.

This application for substitution of trustees, thus conditionally granted, seems to have been intended to promote objects then in view, but as yet not disclosed to the Court.

At the same term, a petition was filed by John McNish, the trustee under the first deed, and another by John H. McNish and Charles L. McNish, the newiy substituted trustees under the second deed, praying for leave to sell both the tracts of land together, and setting forth the reasons of the application, consisting mostly of the unproductiveness of the land to Mrs. *68McNish and her family. On these petitions separately, orders were passed the 29th of January, 1838, referring it to the Commissioner to report specially on the facts stated in the petitions, the advisableness of granting the order of sale prayed for, and the gross value of the two tracts of land, respectively.

The Commissioner reported, recommending the sale of the land as prayed for: Whereupon the Court, on the 2d of February, 1838, passed an order, that, upon the trustees giving bonds with approved sureties in double the value of the lands held in trust by them, respectively, conditioned for the faithful discharge of their trust duties, the land to be sold by the Commissioner upon terms prescribed, part cash and part credit, and the cash and securities proceeding from the sale, be delivered and assigned by the Commissioner to the respective trustees, to be held by them upon the trusts declared in the respective deeds: they having first given the bonds, &c. above mentioned.

Still, no sale was made. The endorsement upon the original trust deed, and the registration, required by the order of the 27th of January, 1838, could not be effected, for reasons which will hereafter be stated. Thus matters remained till January Sittings, 1841.

At that time a new petition, (not put in evidence) appears to have been brought before the Court. Who are the parties to it cannot be accurately learned without the production of the petition itself, nor what was its specific object. Its general design may be inferred from a report upon it, presented at this term, as well as from a deed executed by the Commissioner, hereafter to be mentioned. This report is entitled “Exparte C. L. McNish, H. McNish, J. H. McNish.” By the second of these is probably meant Honoria McNish. From the report it appears that an order (not put in evidence) had been passed requiring the Commissioner *“*to inquire into the facts stated in the petition.” 4nd the report states the execution of the deed to Fielding and Davant, as trustees for “Stock Farm,” and sets lorth the trusts therein declared. It then states the order substituting new trustees, passed at January Term, 1838, and the condition upon which it was suspended; and informs the Court that the original deed having been sent for registration in the Secretary’s office in Charleston, had been lost there, so that the endorsement required to be made on it could not be made.

That, on this occasion, the deed for the other tract, to John McNish as trustee, had not been pioved. And the report closes with g. statement of evidence, taken to show that the land, in its condition at that time, was “comparatively” valueless: both tracts, together, not being worth more than fifteen hundred dollars: and that a sale of it would be advantageous to the *cestui que trusts.*

*69On hearing this report, Chancellor Harper, by an order, sitn-ilarly entitled, and passed the 28th of January, 1841, confirmed it, and ordered that the endorsement and registration required by the order of the 27th of January, 1838, be dispensed with. *“*That upon the trustees, C. L. McNish and J. H. McNish, giving bond and security in double its value, for the faithful discharge of their trust duties, the property mentioned in the petition, be sold by the Commissioner, and the proceeds be delivered to the trustees, to be held by them subject to* the trusts respectively in the trust deeds.” Terms, cash for one third; credit for the balance, one, two and three years.

Upon this C. L. and John H. McNish gave the bond, &c. required : and the Commissioner, on the 1st of March, 1841, proceeded to sell the land — selling both tracts together — at public auction : and C. L. McNish became the purchaser at fifteen hundred dollars.

On the same day the Commissioner conveyed the land thus sold to the said purchaser, in fee, by deed, reciting the foregoing order, as the authority for the sale, and that it was made upon a petition filed by C. L. McNish, J. H. McNish, and H. McNish, the 25th of January, 1839. “ And the case being at issue came *on tobe*heard at January Sittings, 1841, when the said Court, after full hearing thereof, and mature deliberation in the premises, did order, adjudge and decree,” &c. referring to the foregoing order of the 28th of January, 1841, “as by reference thereto in the registry of the said Court will appear.” This deed was recorded in the Registry of Mesne Conveyances, the 17th of May, 1841.

C. L. McNish, the purchaser, paid in no money, but receipted to the Commissioner for the price which he had bidden for the land.

On the 29th of December, 1843, the said Charles L. Mc-Nish, by a deed containing no recitals, except that the land “ was purchased by him, at a sale made by the Commissioner in Equity for Beaufort district, under the order of the Court of Equity at Gillisonville, on the 1st day of March, 1841,” conveyed the land, in fee, with full warranty, to Benjamin E. Guerard, at the price of two thousand and twenty-five dollars.

With this deed, C. L. McNish delivered to Mr. Guerard, the purchaser, the deed which he had received from the Commissioner, the 1st of March, 1841, and containing the recitals already mentioned: and by his direction Mr. Guerard paid over the purchase money into the hands of George Pope, who was surety to the bond the substituted trustees had been required to give the Commissioner.

The bill is filed by Mrs. Ann McNish, the wife of John McNish, (suing by next friend) and by six of her children, to wit: Honoria, Laura, Jane, Mary, Thomas and Susannah, *70(the latter being an infant, and suing by next friend, as the bill states.)

After stating the conveyance of “ The Bower” to John Mc-Nish, and of “Slock Farm” to Fielding and Davant, and the substitution of Charles, L. and John H. McNish, in place of the two latter, as trustees, but averring that no conveyance of the premises was made by the old to the new trustees; the bill proceeds to state:

That, afterwards, in the year 1830, John McNish, representing himself as trustee, applied to this Court to sell “ The Bower;” and, at the same, time C. L. McNish and John H. McNish, representing themselves as trustees, petitioned the Court to sell “Stock Farm;” and such proceedings were had that an order was taken, directing the Commissioner to sell the said tracts of land, and take securities from the trustees for the due application of the purchase money.

That C. L. and J. H. McNish did give such securities, but John McNish gave none.

That Mr. Davant, the Commissioner, sold the land on the 1st of March, 1841, in one lot, and set down C. L. McNish as the purchaser, at the sum of fifteen hundred dollars; but he paid no money, and only gave his receipt to the Commissioner for the purchase money, and the Commissioner conveyed the land to him.

It is further stated that the Commissioner reported these proceedings to the Court, (which, by the evidence, he did at May Sitting, 1841) and that the report was confirmed (of which statement there was no evidence.)

The bill proceeds to state the sale and conveyance made by C. L. McNish to Benj. E. Guerard, the 29th of December 1843; and that C. L. McNish soon afterwards died, intestate, leaving a widow, (since married to Alvin N. Miller,) and two infant children, named in the bill, all of whom reside in Savannah, Georgia; he having never received the purchase money for said lands; which had been paid by Mr. Guerard, the purchaser, into the hands of George Pope, and was retained bv him, Pope, for his indemnity against the bond into which he had entered, as surety for the said C. L. McNish’s discharging the duties of a trustee.

That John H. McNish (to whom the legal estate in “Stock Farm” would survive, if the same had been conveyed by the prior trustee to himself and Charles L. McNish, as it should have been) lives in Savannah, Georgia; where John McNish, the husband of the plaintiff, Anti, also resides. That no administration has been taken out on C. L. McNish’s estate.

The plaintiffs aver that they were not parties to the proceedings in this Court above referred to, nor were consulted in relation to them, nor consented to the sale of said plantation, arid have never received any part of the purchase money.

*71They insist in their bill thati! The Bower” was not a trust estate ; the use being executed in the children of John Me-, Nish, six of whom are plaintiffs: and the order for the sale of this tract was made exparte, on representations for which the plaintiffs are not responsible, and was taken at the risk of those who moved for it, and of them-only.

That the legal estate of “Stock Farm” was in Fielding and Davant, and the equitable estate in the plaintiff, Ann, for life, with remainder to her children. That neither the legal nor equitable estate was represented when the order for sale was made, or the sale confirmed: and that the said order was made by consent of C. L. McNish and J. H. McNish, and binding only on them.

That the said order did not authorise the Commissioner to sell “The Bower,” and “Stock Farm,” in one lot; and that the sale to C. L. McNish confounded interests which are distinct.

That the said C. L. McNish, assuming the character of trustee of the plaintiffs, had no right to purchase, and that the Commissioner had no right, in any case, to convey to him, without receiving the purchase money. And, for these reasons, the deed of the Commissioner is inoperative to convey to C. L. McNish any thing more than the interest of John H. McNish ; who may be bound because he was consenting to the transfer of the property.

That as C. L. McNish and John H. McNish had no title beyond two eighths of “ The Bower” in possession, and two eighths of “Stock Farm” in remainder, no more was effectually conveyed hy the deed of C. L. McNish to Benj. E. Guerard.

That the plaintiff, Ann, is entitled to a life estate in the whole of “Stock Farm,” and the other plaintiffs are entitled to six eighths of the freehold and inheritance of “ The Bower.”

And that the said Benj. E. Guerard knew when he contracted with C. L. McNish, that he was, or acted as, a trustee for the plaintiffs; and by the deed of the Commissioner,— which was delivered to him, — he was bound to know there was a decree, and to see who the parties to that decree were, and to know all the facts stated in the bill.

That the plaintiffs have applied to him for a partition of “The Bower,” and a delivery of “Stock Farm.” That though willing to come to a fair settlement with the plaintiffs, he insists that the money which he paid into the hands of George Pope be refunded to him, if he is obliged to yield the land. But George Pope is dead, and. his executor, Franklin H. Pope, refuses to refund the money in his hands to any person but the personal representative of C. L. McNish, and as no administration has been granted on that estate, no efforts at a settlement with Franklin H. Pope, or which depend on him, can succeed; and, therefore, Mr. Guerard, in- *72, sisting that he has a right under the deeds of the Commissioner and C. L. McNish, to hold as his own, all the property ' which they undertake to convey, refuses to make partition of “ The Bower,” or to deliver “ Stock Farm” to the plaintiff, Ann McNish, as requested.

The bill pray^s process against Guerard, Fielding and Da-vant; and against John McNish, John H. McNish, and the personal representative of C. L. McNish, whenever they may come within this jurisdiction ; that the sale of the premises, as to all but two eighths of “ The Bower,” and two-eighths of the remainder of “Stock Farm,” be declared null and void. That the plaintiff, Ann, be put in possession of “Stock Farm,” and that a writ for the partition of “The Bower” may issue; and general relief, &c.

Fielding and Davant have consented to be considered formal parties ; no decree being required as against them.

Benjamin E. Guerard pleads that he is an innocent purchaser of the premises from C. L. McNish, who was in actual possession, claiming in fee, for the price of two thousand and twenty-five dollars, which he actually paid to George Pope, at the request of the said McNish, at the time he received his conveyance ; and that he took the conveyance and paid the said price without notice of any interest, legal or equitable, existing in any other person than his said grantor, or that said grantor was trustee of the plaintiffs; or of the proceedings in the Court, referred to by the plaintiffs in their bill.

He admits that he has lately heard of the conveyance, from Dr. Screven, of “ Th.e Bower,” but contends that the statute of uses does not apply to the terms of the deed ; the effect of which was to vest the legal title in John McNish, for the special pürpose of the maintenance and support of the children, &c.

He has also lately heard of Dr. Screven’s conveyance of “Stock Farm” to Fickling and Davant, in trust for Mrs. McNish during her life, with contingent remainder to such, of her children as might survive her; and also of the transfer of the trust to C. L. and J. H. McNish, which, so far as he knows, was unaccompanied by any conveyance *from the*old to the new trustees ; but, as he is advised, the laws and practice of this Court do not require a conveyance in such cases.

He admits that he paid the purchase money, upon his purchase from C. L. McNish, to George Pope; but it was done at the request of the said McNish.

He admits that said McNish delivered him the Commissioner’s deed, at the same time with his own; but denies that., beyond the facts appearing on said title-deed, (from which he avers he drew the conclusion “that the proceedings were regular,”) he knew any thing, at the time, of the provisions *73of the trust deeds, or of the actual parties to the proceedings, or of their several interests in the premises, or of the alleged ( irregularity of the Commissioner’s sale to C. L. MeNish, or' that no money was paid by the purchaser (on the contrary, it appeared, by the title-deed of the Commissioner, that the sum of fifteen hundred dollars was some way paid by the purchaser); nor did he know, as averred in the bill, at the lime of his contract, that the said C. L. MeNish either was or acted as trustee of the plaintiffs; nor could he learn from the said title-deed that the plaintiffs had any interest, by trust or otherwise, in the premises.

He suggests that he has made valuable improvements: and though he is unwilling to surrender the possession of the premises, he has offered every aid in his power to put the plaintiffs in possession of their rights, as against Charles L. MeNish and George Pope, and his executor, Franklin H. Pope, to whom he insists the plaintiffs should look for redress.

Decree cf July *12th,*1849.

Johnston, Ch. It will be a convenient method to consider the case, in relation to each parcel of land, separately, where the grounds taken by the plaintiffs apply to them, distributively, and not in common.

It is assumed by the bill, and has been argued at the hearing, that, by the statute of 27th Henry 8, commonly called the Statute of Uses, the legal estate of “The Bower” was transferred to the children of John MeNish: and, therefore, there was no title or estate in him subject to the conveyance made by the Commissioner, under the order of the Court.

If this view be sustained, and there be no authority found for the sale of this tract but the application of John MeNish, the consequence would be that the Commissioner’s deed conveyed no title to Charles L. MeNish, the purchaser; and his conveyance to the defendant, Guerard, served only to vest Guerard with a title to his own distributive share: and then the land is subject to partition between Guerard and the other seven children.

For the purpose of this partition, however, (if it comes to that,) John H. MeNish should be made a party: and I am of opinion that, though resident beyond the limits of the State, he may be made a party, by publication; he having an interest in the land, the subject matter on which the Court is to act, and which lies within its jurisdiction. It is every day’s practice to proceed in this manner.

But does the statute execute the uses declared in this deed ?

The conveyance is to John MeNish, to have and to hold *74“in trust for the aforesaid” (eight named) “children, and such other children as may be born of the body of Ann McNish, and to be divided among them equally“ and, until such division, to be occupied and used entirely and specially for the maintenance and support of the aforesaid children.”

1 Cruise, tit. ii. chap. 3 & 7; Id. p. 277, N. Y. of 1823, by Ingraham. 1 Cruise, tit. ii. chap. 3, sec. 27; 2 Stra. 1172; Hatter-lyv. Jackson, citing Co. Lit. 188; Pollex, 373; and Mo. 220.

Sed vide 1 Cruise, tit. ii. chap. 3, §26, latter sentence.

2 Cruise, tit. 12,Trust, Cap. 1, sec. 12,13.

It has been argued, that there is a co-existence of the three circumstances stated (1 Cruise 412) to be necessary to the execution of a use by this statute; a person seized to uses ; a *cestui que use in esse ;*and a use *in esse.*

If the use is such as the statute executes, it makes no difference that some of the *cesíuis que use*are not *in*esse, to-wit: such other children as may yet be born of the body of Mrs. McNish. All persons capable of taking lands by common law conveyance, may be *cestuis que use;*and it has been held that a remainder of an estate, given directly to several, may vest in those capable at the time ; and open to admit those who afterwards become capable.

But the embarrassing question is whether the use is such as the statute executes. No distinction existed between uses and trusts before the statute. All were trusts, and enforcible as such. But the statute serves to execute some of them; and these are extinguished as trusts, and converted into legal estates or interests. What are now recognized as trusts, and enforced in equity, are such uses as the statute does not execute.

Without going specially into the cases, it may be laid down as the result of them, as applicable to this case, that where he to whom a conveyance is made has some duty to perform, for the perfect performance of which it is necessary that the legal estate be in him, the statute does not apply. He shall be regarded as vested with the legal title; and the person interested in the performance of the duty required, has an equity, which he may enforce against him in respeet to the legal estate thus held by him. This is a trust, and not a use executed.

The second mode, says Cruise, of creating a trust arose from an opinion delivered by the Judges in 36 Henry 8, that where a man made a feoffment in fee, to his own use, during his life, and after his decease, that J. N. should take the profits, this was a use in J. N.; contrary, if he said that after his death his feoffees should take the profits and deliver them to J. N. This would be no use in J. N., because he could have them only by the hand of the feoffees. Thus the feoffees would have the legal estate, and consequently J. N. could only have a trust, which would be enforced in equity. This rule, says he, has been applied to devises. But a distinction has been made between a devise to a person in trust to pay over the rents and profits to another, and a devise in trust to permit that other to receive the rents and profits. In *75the first case, it was held that the legal estate should continue in the first devisee, in order that he might be able to perform the trust; for where he is directed to pay over the rents, must necessarily receive them. But in the second case, it has been adjudged, that the legal estate is vested by the statute, in the person who is to receive the rents. And he quotes *Broughton*v. *Langley,*where lands were devised to trustees and their heirs, to the intent to permit A. to receive the rents for life, &c., and it was determined that this would have been a plain trust at common law ; and what at common law was a trust of a freehold, was exécuted by the statute, which mentioned the word trust as well as use. And that the case of *Burchett*v. Durdant, which had been determined otherwise, was not law.

Id. sec. 14. 2 Lord Raymond, 873.

2 Vent. 312..

But in all the cases the true intention of the instrument, and not its words merely, was consulted. And, although, in cases where it was manifest, that the grantor or devisor intended to create a trust, and the statute positively interfered and declared that no trust should exist, the Courts were obliged to sacrifice the unlawful intention, yet, in all cases of difficulty, there has been a leaning to take the instrument out of the operation of the statute, so as to give it operation according to *its true*design.

7 Durnf. & East. 652, cited 2 Cruise, tit. 12, cap. 1 sec. 19; et vide, sec. 18.

Thus in *Harton*v. *Harton,*sent out of Chancery for the opinion of the King’s Bench, where Jacques, the testator, vised an estate to trustees and their heirs, upon trust to permit his neice Bridget Hartón, a married woman, to receive the rents,^during her life, for her separate use, &c., Lord Kenyon, Ch. J. said, whether this be a use executed in the trustees, or not, must depend upon the intention of the devisor, which is to be collected from the will. This provision, it appears, was made in order to secure to several *femmes covert*a separate allowance, free from the control of their husbands ; to effectuate which, it is essentially necessary that the trustees should take the estate with the use executed, otherwise the husband of each taker would be entitled to receive the profits, and so defeat the very object the devisor had in view. And the whole Court (Kenyon, Ashurst, Grose and Lawrence,) certified accordingly; that construction being necessary (as they conceived,) to give legal effect to the testator’s intention, to secure the beneficial interest to the separate use of the *femmes covert,*

j Eq. Ab. 383 cited 2 Cruise, a„0¿ 7 p 655,8.C.; 8’ Vin. Acr. ‘Mi.

It is not necessary to mention the case of *Jones*v. *Say*& *Sele,*in which the provision was for the separate use of a married woman; and so far conformable to the case just quoted; because, besides that provision, there was the additional direction that the trustees pay the rent over to the *femme covert.*But upon its being mentioned by Mr. Justice Lawrence in *Harton*v. Harton, in reference to the first provision spoken of, Kenyon, Ch. J., remarked, that in that view, *76it had been approved by Lord Hardwicke in *Bagshaw*v. *Spencer.*

1 Yes. 143.

3 Rich. Eq. 49.

2 Dum. & East. 444.

But, however the Court may be disposed to deflect the general principle, so as to conform to the intention, it must gather that intention by a fair construction of the instrument.

It must have been observed, that I am now considering the following words in the deed before me: “ and until such division shall take place, (the land) to be occupied and used entirely and specially for the maintenance and support of the aforesaid (8) children.”

I do not perceive, in these words, evidence that it must have been the intention of the grantor, that the land was to be occupied, orj,the rents received and disbursed, by the trustee for the maintenance of the children. I do not know that I am at liberty to consider the situation of the family in giving construction to the words of the deed. A very strong persuasion certainly arises from the fact, that these children were infants, and that the deed was made to their father, with a direction for their support — that it was meant this support should be administered through him. But on the other hand, if the statute carried the ligal estate to the children, all this could be, and must necessarily be, attended to by guardians. It is not like the cases referred to, of provisions made for the sole benefit of *femmes covert;*where there would be a legal impossibility of their enjoying the bounty intended, without regarding the legal estate as vested in the trustee.

The case of *Porter*v. *Doby,*quoted by defendant’s counsel, was one in which the trustee was expressly required to apply the proceeds of the plantation conveyed to him, to the support and maintenance of the *cestui que trusts;*and, therefore, falls within the distinction pointed out by Cruise.

The case of *Silvester*v. *Wilson,*also quoted, may come within the same distinction. The testator devised to trustees, in trust to receive the rents and profits, yearly and every year, during the life of his son, John Wilson, and directed that such rent and yearly profits be applied for the subsistence and maintenance of the said John, during his natural life, as aforesaid; with devises to heirs of his body upon his death, «fcc., Ashurst, J. delivering the opinion of the Court, in the first place, puts the decision upon the ground, that the trustee was to receive and pay over; which, he says, is, upon the authorities, sufficient to vest the legal title in him; and then, by way of strengthening the construction, he remarks: “but there is a circumstance in the present case, which makes it still stronger; for it is not barely to receive and pay, but the testator directs that such rents, issues and profits shall be applied for the subsistence and maintenance of the said John Wilson. The testator, therefore, seems to *77mean that the trustee should be invested with some sort of discretion with respect to the application. And if the tenant for life had proved dissolute and extravagant, and had dered his money in gaming, to the defrauding of his creditors, it is by no means clear that the trustees would not have been justified, either in a Court of Law or Equity, in paying such creditors, before they had paid over the surplus to the tenant for life; as the testator seems to have had some jealousy of his son’s conduct, and to have wished that the trustees should have an eye to the application of the money.”

This certainly is not putting the case upon the ground, that if the trust declared had been merely that the rents and profits were to be applicable to the son’s subsisténce, without indicating that the trustee was to make the application, the legal estate would have vested in the trustee, by construction, in order to enable him to perform that duty.

I am not free from doubt, however, in ruling that this case is not applicable to the provisions of the deed before me. But such is my conclusion, upon the best view I am at present able to take of it.

On the whole, I must determine that the legal estate of “The Bower,” vested, not in John McNish, but in the existing children named in the deed, subject to open and admit such other children as Mrs. McNish may have.

This is the only point, however, in relation to this tract, which I feel prepared to decide. It has been assumed in the bill, that the only authority for the sale of this parcel of land, was the order made in 1838, upon the petition of John McNish. I am not satisfied of this. The sale was made under the order of Chancellor Harper, of 1841, which was grounded upon the petition of Ch. L. McNish, John H. Mc-Nish, and H. McNish. I think it would be unsafe to decide so much of this case as relates to “ The Bower,” until John H. McNish is made a party, and until further inquiry be made into the contents of that petition, and who were parties to it. From the terms of the order, it would not be surprising if it should turn out that C. L. and John H. McNish were substituted in place of John McNish, as well as in place of Fick-ling and Davant; and that- all parties interested in both tracts of land were before the Court, on this application for the sale of the land. As I shall hereafter hold in relation to “ Stock Farm,” that none of the children had, or yet have, such an interest in that plantation, as required them to come before the Court; it is natural to conclude that the petition to which I have alluded, had reference to “ The Bower,” in which they had an interest. And it may be, that when the petition and other evidence are produced, it will appear that all the children were before the Court; and that the applica*78tion was for a sale for partition. I may be over cautious in refusing to proceed without further inquiry; but, on the whole, I think that course is the safest; and I shall adopt it. Certainly the plaintiffs have no cause to complain of this ; for so long as the pleadings are not produced upon which the order was made, I should be bound to presume that they contained full authority to support the judgment which was rendered on them.

I now proceed to consider the points in relation to “ Stock Farm.”

If it were necessary, I should hold that the statute executes the uses of the deed for this tract of land; and that the effect of the instrument is to create a life estate in Mrs. McNish, with contingent remainder to such of her children as may survive her.* She being still alive, and it being, of course, uncertain which of the children, if any, may be alive at her death ; none of the plaintiffs, except herself, has, as yet, any such interest as authorized them to disturb the defendant, Guerard, in his possession.

It is manifest, however, that regarding this estate as a legal estate in Mrs. McNish, with contingent remainder, no title, whatever, passed from the Commissioner to Charles L. McNish, the purchaser; and, he having none himself, no estate passed by his conveyance to Guerard. Guerard, therefore, as to this tract, is not constituted a co-tenant, as in the case of *“*The Bower.” In this view, he is a naked trespasser, and Mrs. McNish’s remedy is at law. A remedy in this Court can arise, therefore, only by considering this as a trust estate, or by regarding Mr. Guerard as having dealt with one held out to him as a trustee for the parties interested under the deed for this land.

I take it for granted, that Guerard stands chargeable with notice of the contents of Dr. Screven’s deed to Fielding and Davant, creating the estate. It was duly registered ; and I will not stay to inquire whether, by any subtlety of reasoning, the registration was not notice to him of its contents.

I assume, also, that the recitals in the Commissioner’s deed, which was delivered to him along with the deed of his grantor, compelled him to take notice of the decree of Chancellor Harper, under which the land was sold. As that order, however, related back to a previous order, one of the terms of which it suspended, his investigation must have furnished him with the fact that the new trustees were substituted for the original trustees upon the petition of Mrs. McNish, herself, the only person *who*now has a standing in Court against him. It was she, therefore, who held out C. L. McNish as her trustee.

*79Now, conceding, as I do, that her interest under this deed is a legal interest, and not an equitable one, the question is, whether she who, herself, on that occasion, held it out as an equity, and applied for trustees to protect it as such, and with the manifest design of procuring sale of the supposed legal estate of the trustees, freed, of course, from the equity, shall be at liberty, upon discovering her mistake, to turn round and visit its consequences upon one whom she thus misled, and who, perhaps, was as much mistaken as herself, and as innocent? I apprehend there is no principle known to this Court which would sustain such a proceeding as that; and I should be equally surprised and shocked, if any precedent could be found for it.

I am not speaking of estoppels; nor do I forget the disabilities of married women, generally, to create them. But neither married women, nor infant, nor any one else, whatever their disabilities, can be sustained in an unconscientious claim. And it would be unconscientious to mislead a third party by one’s own representations, and then unravel the transaction, upon the ground that they were misrepresentations. If there is a right of action at law in such a case, this Court will leave the party to that remedy.

It is not necessary to decide any other questions in relation to Stock Farm.” But some points of much interest have been suggested, relating to the practice of this Court, which I think it would be improper to pass by without expressing an opinion upon them.

It is objected, that the transfer of the trusteeship, (assuming now, that this is a trust estate) was incomplete for want of a conveyance from the original trustees to their successors. The Statute *7*Anne, chap. 19, (Public Laws, 97) is appealed to for the purpose of showing, that by the laws and practice of England, such a conveyance is necessary. That statute shows, that where it was necessary for a trustee to convey, and he was a minor, he could not convey until the statute enabled him. Whether, in the substitution of trustees, by the Court, if the Court indulged in such a practice, the transfer would be incomplete without a conveyance, the statute does not inform us. But suppose *it*would have been necessary in Eugland, does it follow that it would be so here? have a case, on the subject of conveyances, (in partition cases I think) which shows that this Court is entitled to a practice of its own; and prefers its own convenient forms, which it has long pursued and established, to those of England ; and to the same effect was the de.cision in *Pell*v. *Ball,*on the subject of partition by sale *in invilum.*

Our uniform practice is to make the transfer of trusteeships by the order of the Court; and I presume there is not a member of the profession living, who ever saw it done in *80any other way. And this practice manifestly arose out of the Statute of 179(3. This statute enables the Court of Equity *“*to permit one or more of the first or former trustees to surrender his, her or their trust, and to appoint one or more trustees in his, her or their room, as to the Court may appear fit, proper and advisable. And the trustee or trustees so appointed and substituted shall then be considered, to all intents and purposes, as vested completely, &c. and the first or former trustees shall be therefore completely exonerated and discharged. Provided, always, that a certificate of such substitution shall be endorsed by the Register or Commissioner in Equity upon the original trust deed, if the trust be created by deed, and the deed can be found,” &c. and so of a will.

*79cer, Bail. Eq. P* — •

*805 Cooper Stat. 277.

2J. C. R, 245.

The former trustee surrenders to the Court; which may be by petition, or consent endorsed on the petition of another person, or in any other way the Court may approve. The Court to which the surrender is made, delegates the trust anew, (and takes security from its appointee) and grants a certificate which is to be endorsed, &c. These are the only conditions or requisites prescribed; and the Act declares that whosoever is so substituted shall then be trustee in place of the preceding trustee, who shall be discharged of his liability, and of course of his office.

Suppose it were otherwise. Suppose the practice was to make a conveyance. Would not the Court, in support of its order of substitution, be bound to presume that a conveyance was made ? It is to be observed that the bill does not seek to set substitution aside, but the ground taken is, that it is a nullity, and to be treated as such. In that view every formality must be presumed which the order taken presupposes.

There is another view equally satisfactory. On any principle that can be assumed, the conveyance must be regarded as a merely formal act to give validity to the order for substitution. And what should prevent the Court, the original trustees being before it, from ordering them, even now, to execute the instrument?

Another objection — also made upon the assumption that this is a trust estate, is that the *cestui que trusts*were not parties to the application for the sale. I have said that Mrs. McNish was before the Court — though not, perhaps, formally as a party to that petition, yet to a petition manifestly looking to the sale, and making preparations to procure an order for it.

But, if this were otherwise, and if not only Mrs. McNish, but all the children, should have been before the Court; I do not think the order of sale is to be regarded as null. There is a manifest difference between what the Court should do in the progress of a suit, and what it should do after it has pro*81nounced its adjudication in the case. It should be very cautious, before it gives judgment, to see that all interested parties are before it; and that the issues are regularly joined and fully discussed. But after judgment given, that and every other Court is to regard it as a valid judgment, regularly rendered according to the forms of proceeding required in the forum. Certainly strangers and third persons are entitled so to regard it; and aré not bound to look up the necessary prerequisites to fortify the record. Every thing will be presumed ; unless the application to vacate it be directly made, and not collaterally, as in this case.

The view I have taken leads to a dismissal of the bill, as it regards “ Stock Farmand to granting leave to the plaintiffs to make a party of John H. McNish, for the partition of “ The Bower,” if upon further inquiry to be directed, that partition turns out to be proper.

But the former order will be granted without prejudice to the plaintiffs’s right to amend their bill so as to obtain full redress by a proceeding which they have neglected, but may, perhaps, yet adopt successfully. And if they adopt it and succeed in it, it will, of course, (as it will be predicated on an affirmation of the sale) supercede the partition of *“*The Bower,” and, also, the inquiry I shall direct.

I do not perceive why the plaintiffs may not make the fund in the hands of Mr. Pope’s executor responsible for the price bid by C. L. McNish for these two parcels of land. Although C. L. McNish might not be entitled to draw out of the Commissioner’s hands so much of that money as may be supposed to have arisen from the sale of “ The Bower,” yet he did draw it out. And it was probably by his orders that a fund sufficient to indemnify the owners of both tracts was paid over to Mr. Pope, who received it for that purpose.

It is true these lands should have been separately sold; because the proceeds of each tract wa's to follow a different destination. But may not the price of the two be apportioned upon testimony as to their relative value? Will there be any difficulty in making a personal representative of Charles L. McNish, and amending the bill by making that representative and the executor of Pope, parties ? The plaintiffs will, however, proceed as they may be advised. The Court may not perceive difficulties which really exist to this proceeding.

It is ordered that the bill, so far as respects *“*Stock Farm,” be dismissed ; but without prejudice to the plaintiffs’s right to amend and proceed as above indicated. The plaintiffs to pay the costs of the suit up to this stage of the proceedings.

It is further ordered, that the bill be retained and set down for further hearing, by the inquiry referred to in the foregoing opinion, in relation to “ The Bowerand that the plaintiffs have leave to make a party of John H. McNish.

*82The complainants appealed from the foregoing decree, for the following reasons.

1. That John H. McNish has no interest in the suit; all his right having passed to the defendant, Guerard. That not being a citizen or resident of the State, all that was requisite in his behalf was to make him a party, so far as to prevent a plea in abatement. That to this extent, he is effectually made a party by the present proceedings. That the Act of 1784 does not invalidate the former practice of Chancery, but is intended to give a further remedy, in cases where such a decree is prayed against a person abroad as would require something to be done on his part if he were within the jurisdiction.

*2.*That even if the deed of the Commissioner *to G. ,L.*McNish for “ Stock Farm” is inoperative, the complainants were right to come to this Court to have the same set aside, instead of treating it as a nullity, by suing in the court of law, and provoking a collision between the two jurisdictions.

3. That there is no ground for further inquiry disclosed by the pleadings or evidence in the cause...

4. That the complainants, Honoria McNish, Laura Mc-Nish, Jane BuPre McNish, Mary Catharine McNish, Thomas Julius McNish, and Susan Dupont McNish, were entitled to a partition of “ The Bower,” and the complainant, Ann McNish, to a decree for the possession of “Stock Farm.”

H. C. KING, *Complainants’ Solicitor.*

The defendant, B. Elliott Guerard, appealed, on the following grounds.

1. Because the original conveyance of “The Bower” to John McNish, was not put in evidence at all at the hearing, nor was its loss either alleged or accoumed for, nor was *the*subscribing witness, Beck, called to prove its existence, if ever it had any, nor was any proof offered of its contents, excepting what was represented by counsel to be a copy from a record in the Register’s office, with the name of a single witness attached; and it is, therefore, respectfully submitted, that with these facts before the Court, his Honor erred in not dismissing the bill as to “ The Bower,” for want of evidence of title in the complainants.

*2.*Because his Honor decreed that by the terms of the deed, as evidenced by the copy submitted, the trust was executed in the children of Ann McNish ; whereas, it is submitted, that the better construction is, that the legal estate is in John McNish, and the equitable interest only in the children.

E. & H. RHETT, *Appellant’s Solicitors.*

*

**Mr. Petigru had changed the ground taken in the bill; and, at the hearing, contended that this was a legal, and not an equitable estate; and that the use was more clearly executed as to this trust than as to the other.

Johnston, Ch.

delivered the opinion.

The Court is satisfied with so much of the decree as re*83lates to Stock Farm, except, that as the case is to be retained for further inquiry in relation to The Bower, which may result ( in a decree in favour of the children of Mrs. McNish, it is thought that no order should have been made on the subject of costs at this time. It is, therefore, ordered that the question in relation to costs be reserved until the further hearing of the case.

It is thought by this Court, that the leave given to make John EL McNish a party for the purposes of the partition of The Bower, (if the case be further prosecuted with a view to the partition of that tract) was unnecessary. In announcing the judgment of my brethren that he will not be a necessary party for that purpose, I merely take the liberty to say, that I entertain some doubts upon the subject.

The majority of the Court also concurs with so much of the decree as holds the uses in The Bower to have been executed; and that no legal title vested in the nominal trustee, John McNish.

A majority'- of the Court also concurs in the order for further inquiry directed by the decree, upon the ground, that if the Chancellor was not satisfied, it was within his discretion to order the case to be further-heard.

It is ordered, that the decree be modified according to the foregoing opinion.

Caldwell and Dargan, CC. concurred.

Dunkin, Ch.

The children of Mrs. McNish seek patition of The Bower, and Mrs. McNish prays to be put in possession of the Stock Farm, and these are the points considered by the decree. For the adjudication of these matters, I am of opinion that John H. McNish is not a necessary party, and such I understand to be the júdgment of -a majority of this Court.

On the state of facts disclosed by the pleadings and proofs, I rather think Mrs. McNish would not be permitted to disturb the title of the defendant in Stock Farm, but that she should be confined to her claim on the fund; * and I should be better satisfied if, instead of dismissing her bill, she had been permitted to amend with this view. But there is no -ground of appeal to this effect; and I concur in the conclusion that she is not entitled to a decree for the possession and delivery of the premises.

*Decree modified.*

*

Note. — The bill set up no claim to the fund.