#### J. E. B. Finley v. Wm. Burgoyne and Charlotte S. Moser.

A specific performance will not be decreed against an executor who contracted for the sale of part of the real estate of the testator, believing at the time that he had authority to sell; but who, on discovering that the will did not authorize the sale, refused to convey.

Where without fault in the vendor, it is impossible for him to convey, the Court will not decree a conveyance, but will leave the purchaser to his legal remedy.

Nor will the Court order a reference to assess his damages, when he had neither paid or deposited the purchase money, or sustained any loss but that of the fancied goodness of the bargain.

The Court refused to order the executor in this case, to convey to the extent of the interest which he had in the lot in question; inasmuch as some of the parties in interest had contracted, whilst others had not, and there were various degrees of interest with limitations over to others.

*Before Ms Honor Chancellor DESAUSSURE, at Charleston, January*1837.

The complainant’s bill charges, that on the-day of-183-, the late Philip Moser, formerly of Charleston, and latterly of Philadelphia, made his will, whereby, after directing the payment of his debts, and .bequeathing certain furniture, &c. to his wife, C. S. Moser,, he gives the remainder of his estate, real and personal, in equal shares and proportions to his said wife, Charlotte S. Moser, his daughter Eliza, now the wife of William Burgoyne, and his son, Philip S. Moser, an infant, to be divided between them, when his said son shall attain the age of twelve years; until which period, he provides that the whole income of his estate shall be appropriated for the support of the said Philip S. and his mother. And said intestate appointed his wife, and said William Burgoyne, executor and executrix of his said will; which will more especially appear, by reference to said will, or a certified copy thereof, in the possession of said executor and executrix, which complainant prays they may be required to produce.

Philip Mosei-, the testator, died on the-— day of-183-, leaving his will unrevoked, and Charlotte S. Moser, and William Burgoyne, qualified as executor and executrix, and assumed the execution of the same.

Philip Moser, at the time of his death, was seized and possessed *134of a house and lot in Broad street, in Charleston, known as No. 42, which forms a part of the residue of his estate. Some time in the fall of 1835, Charlotte S. Moser, and William Burgoyne, executor and executrix aforesaid, gave instructions to Thomas Milliken, an auctioneer in Charleston, as their agent, to sell the said house and lot, at public auction. On the 23d of November, in the same year, said house and lot were offered for sale, by the following advertisement, viz:

*“By Thomas MiJliJic/i.*This day, 23d instant, pr-ecisely at 11 o’clock, will be sold, at the north side of the custom house, that three story brick house and lot of land, No. 42, north side of Broad street, next to M'Neil & Blair, belonging to the estate of Dr. Moser, deceased. The house is substantially built, and might be raised upon, and otherwise improved, at a small expense. • The situation is excellent for most kinds of business, and must be an improving property, and good investment. Conditions cash. Purchasers to pay for all necessary papers. By order of the executor.” ^

On the faith of said advertisement, complainant attended said sale, on the day appointed, and after fair and open competition, *the house*and lot were knocked down to him as the highest bidder, at $4000, and he was accordingly entered in the auctioneer’s book, as the purchaser, at that price; but having been sold subject to a lease, which was to end on the 1st of October next ensuing, it was understood and agreed, that possession should not be delivered until that time. Complainant has repeatedly applied to Thomas Milliken, and to William Lance, Esq. the attorney at law of the executor and executrix, for execution of the said *contract of sale,*and tendered 'the amount of the purchase, according to the terms of sale, upon the production of good titles to said house and lot, which application was, as complainant has been informed and believes, communicated to said executor and executrix. But they have neglected or refused to comply therewith. They pretend that the will of said Philip Moser, confers on them no power to sell, or dispose of any portion of his estate. Whereas, complainant charges that said defendants admit, that it will be necessary to sell part of the real estate of said Philip Moser, to pay his debts, and that such *135being the case, upon a suitable application by them to tbis Court, the requisite power to make titles could be procured, and that said executor and executrix, having contracted to sell said house and lot to complainant, for the sum specified, will be held responsible for a substantial compliance with their said contract. And complainant moreover charges, that as by the will of the said Philip Moser, said William Burgoyne and Charlotte S. Moser take an interest in said property, they should, at all events, beheld bound to the extent of their interest, by their contract with complainant.

The bill prays that defendants may answer, and particularly, whether said Milliken did not sell by their authoi'ity and instructions; and whether it was not necessary to sell part of the real estate to pay debts. That defendants may be decreed to make titles to complainant, or to make good the difference between the amount contracted to be paid by complainant, and the present value of said house and lot; or, at all events, of such part thereof as said defendants are individually entitled to.

The answer of the defendants admits, that Dr. Philip Moser, in bill named, made his will as stated in bill, and died leaving his will in full force as alleged. Admits that said testator did appoint these defendants, executor and executrix thereof, and that they proved said will; and assumed *the*administration thereof, defendant, C. S. Moser, residing in Philadelphia, where her husband died, and defendant, Burgoyne, residing in New York. Defendant, Burgoyne, for liimsolf, says, he admits he gave instructions to Milliken to sell the house and lot in Broad street, who advertised the same as belonging to the estate of the said testator, by order of the executor, and knocked down the same to complainant, as highest bidder, about the time stated. Further states, that it being requisite to sell property for payment of debts, and knowing little of the power of an executor, under such circumstances, he gave the instructions mentioned, to the auctioneer, inadvertently, not at the time conceiving the prohibition in the will against a division of the estate, till the testator’s said son arrived at the age of twelve years, as extending to a sale for payment of debts, which he first directed to be duly paid and satisfied. Defendants admit that complainant has applied for titles for said house and lot, and *136that they have declined executing such titles, being advised that doing so would be a nugatory act, inasmuch as the right of an infant and a married woman are involved in the matter. They further state, that application will be made to this Court for a sale of'said property by one of the officers, for the purpose of paying debts, as they are advised that without a decree of this Court the interest of said minor and feme covert in said property could not be disposed of, — pray to be dismissed, &c.

At the hearing of the cause, a certified copy of the last will and testament of the late Dr. Moser was produced in evidence, by which, after a few bequests of personal *property to his*wife, and after directing his debts to be paid, he devised and bequeathed the remainder of his estate, real and personal, to his wife, his daughter Eliza, wife of Dr. Burgoyne, and his son Philip Stobo Moser, to be equally divided between them, but that no separation or division of the estate should be made till his son should arrive at the age of twelve years; until which period the whole income of his estate was to be appropriated to the support of the said son and his mother, and for his clothing and education. That after his arrival at the age of twelve years, that part of the testator’s estate given to his daughter, Mrs. Burgoyne, shall be paid to her, or in the event of her decease, to the heirs of her body; the remaining two-thirds to remain for the support and maintenance of his aforesaid wife and his said son, and for his support and education, till he should arrive at the age of twenty-one years, and then his share should be paid him, the wife of the testator to retain her third part or proportion, to her use and behoof during her natural life, after which her share is to revert to his son *Philip, or*in the event of his death, before having lawful issue, then to the children of this testator’s daughter, Mrs. Burgoyne. Then follows a provision for any after born children of the testator. Dr. Moser appointed his wife executrix, and Dr. Burgoyne, of Peleg Hall, his executor, and he died, leaving his will in full force; the two former proved and qualified thereon, and his daughter, wife, and son survive him. It appears that Dr. Burgoyne being disposed to pay the debts of the estates, one of which due in Philadelphia, was said to be pressing, directed the sale of the house and lot in *137Charleston, which is the subject of the present controversy. The sale was accordingly made at public auction, and the complainant became the purchaser, as stated in the bill and answer. It does not appear by the letters of Dr. Burgoyne, one of the executors, which were produced in evidence, or by the answers or any other evidence, that Mrs. Moser, the widow and co-executrix of the late Dr. Moser, joined in the directions to the auctioneer, to sell the house and lot in question. The bill seeks a specific performance of the contract. The defence is, that the executors of the late Dr. Moser had no authority under the will to sell the real estate.

On inspection of the will, it appears, that they had no authority to sell, and were specially instructed *to*keep the estate together, until the son and principal devisee of the testator, should attain the age of twelve years, which has not yet occurred, and as far as it appears, the sale was the act of only one executor. The sale, then, was the unauthorized act of one executor, and can convey no title to the purchaser. It occurs frequently that the pressure of debt is so urgent on estates, that the Court, on a strong and clear case, made out of such necessity, will authorize the executors to sell some portion of the estate to save the rest, even where no authority is given by the will of the testator. But the Court is cautious in the exercise of its power over this subject, and requires a clear case to.be made out, by proof of the necessity or propriety of the sale, and of the benefit to the minors or married women who have an interest, before it exercises it. The benefit to the minors must be more apparent, or the Court will forbear the exercise of a power intended to promote, and not to injure, their rights and interest.

In this case, the reluctance of the Court is increased by its perceiving that none of the devises under the will are simple and unfettered. There are limitations over in most, if not all of them. In the case before us, the executor undertook to judge of the necessity to sell, and acted upon his own judgment. It is alleged, and not liable to contradiction, that property has risen in price, very considerably, since the unauthorized sale. The Court does not, therefore, feel itself bound to give effect to such an unauthorized sale, especially where it appears to have been not at all bene*138ficial to tlie devisees, one of whom is a married woman, and another a minor, and where it does not appear there was urgent necessity to sell; for there is property mortgaged in Philadelphia, by the testator himself, to secure the debt said to be pressing. The Court is more reluctant to execute such a power in a case where it would not have compelled the purchaser to complete his purchase where a good title could not be made to him.

It was contended for the complainant, that if the Court was not at liberty, under the circumstances, to decree the specific execution of the contract, that it could make the executor who had made the sale, responsible in damages to the purchaser, for any loss he may have sustained by reason of the executor’s having undertaken to make the sale without legal authority. This is a question of considerable nicety, and has rarelybeen acted upon. In the admirable text of Fontblanque’s Treatise of Equity, (ascribed to Mr. Ballon, the friend of Lord Camden,) it is laid down, though the Chancery cannot assess damages, yet a covenant by the husband, that the jointure should be, and continue of such a value, máv bo carried into execution in this Court, for the master may inquire into it, or it may be tried at law in a *quantum damnificatus. And*in Denton and Steward, the master was directed to inquire what damage the plaintiff had sustained by the defendant’s non-performance of his agreement, of which a specific performance was prayed by the bill, but which could not be decreed, the defendant having by sale of the estate put it out of his power to perform his agreement with the plaintiff. — 1 Fontbl. 438. Also, 12 Yesoy, 395, Green-way v. Adams, decided on the authority of Denton and Stewart. It was argued that the Court decree a specific performance as far as the parties contracting had an interest. But this course would be full of inconvenience where some of the parties in interest had contracted and others not, and where there' were various degrees of interest, with limitations over to others, which seems to be the case in the cause under consideration.

Mrs. Moser has but a life estate, with remainder over, and there is no distinct legal proof that she assented to the sale. Dr. Bur-Goyne has only the interest for life, which his wife has under the *will,*and the principle devisee is a minor.

*139It is therefore ordered and decreed, that the bill be dismissed, as to Mx-s. Moser, and that it be referred to-, to enquire and report, whether the complainant has sustained any, and what damage, by reason of this sale, directed by Dr. Burgoyne, without legal authority, at which the complainant became the purchaser.

The defendant, Dr. Burgoyne, appealed from the decree of his Honor the Chancellor, on the grounds following, to wit:

1st. That, complainant, Dr. Finley, has no claim for damages, either in this Court, or at law, under the circumstances of this case; and no reference to the officer of the Court as to damages ought to have been made, being at least superfluous.

2nd. That the damages, if any the complainant may have sustained, are only nominal, for the loss of a bargain.

3d. That no damages were actually proved, or attempted to be proved, by complainant, as suffered by him; and those claimed are altogether fancied.

4th. That in other respects the complainant’s bill was devoid of any equity, and ought to have been dismissed.

*W. Lance,*defendant’s solicitor.

*Peronñecm, Mazyck*& *Finley,*for complainant.

Johnston, Ch.

The Court is of opinion that the Chancellor properly refused to decree a specific performance in this case. Under the provisions of the will, the executors had no authority to make the sale. The better opinion appears to be, in such a case, that the Court will not only refuse its aid to the purchase, but will, at the instance of the *cestui gite trust,*restrain the execution of the contract, (10 Ves. 292, Matlock v. Buller.) But, whether the Court would interfere to prevent the contract from being carried into execution or not, the doctrine is unquestionable that where without fault in the vendor, it is impossible for him to convey, the Court will not decree a conveyance, but will leave the purchaser to his legal remedy, (2nd Atk. 74; 9 Mod. 233; 3 Bro. C. C. 390.) In this case there is no pretence of bad faith on the *140part of Dr. Burgoyne, who alone gave directions for the sale. But it is impossible for him to convey without the concurrence of his co-executrix, and even with her concurrence, no title can be made, not only for want of authority from the testator, but because the will expressly directs the property to be kept together until the youngest child shall reach the age of twelve years.

It is contended that the contract should be carried into effect as against Dr. Burgoyne, on the score of his being interested in the property sold. But he has no interest at present, nor can it be ascertained before the period fixed by the testator, whether he ever will have any.

We are entirely satisfied too, that the Chancellor perfectly refused to sanction the sale as a means of raising funds to pay the debts of the testator. Independently of the reasons assigned by him, it is sufficient that two of the devisees, one of them *afeme covert*and the other an infant, whose interests would be involved in such an order, and whom therefore the plaintiff (resting his case on that ground) should have brought before the Court, have not been made parties.

So far we concur with the Chancellor. But we are of opinion that a reference of damages sustained by the plaintiff ought not to have been ordered. It appears by the bill, that the plaintiff has neither paid nor deposited the purchase money. In such a case, even supposing that this Court should undertake to assess the damages, instead of directing an issue or leaving the party to his remedy at law, we must give the damages which a Court of Law would give. The Courts of Law would give him only nominal damages, for it is well settled he is not entitled to any compensation for the fancied goodness of his bargain, (2 Bl. R. 1078; 2 B. & P. 167.) On the case presented by the plaintiff, there was nothing to *refer.*

It is ordered that the circuit decree be modified, and the bill be dismissed, but without costs.