sales, by the vigilance of the register. It would be unreasonable to extend the prohibition beyond the letter of the statute, when no beneficial object would be gained by it, either in relation to the rights of the government, or of third persons. The construction set up by the conplainants would effectually prevent the registers from purchasing any part of the land disposed of at public sale, because the provisions made in their favor by the 10th section, cannot be resorted to, till the public sales, at which every tract must be offered, have closed, and the private sales have commenced.

If it had been the intention of congress, to prevent them from purchasing at the public sales, in the ordinary way, it is a reasonable supposition, that some other way would have been provided through the agency of the governor or surveyor general, as has been done in relation to purchasers by application and entry. The privilege given to the registers, of purchasing by application and entry, was intended as a substitute for the right which is taken away in the preceding part of the section; we should therefore naturally conclude that it was as broad as the prohibition. But such cannot be its operation, if the prohibition be extended to purchasers at public sales, for the very obvious reason that the public sales must have closed before the register can have availed himself of the substitute.

It is not necessary here to resort to the technical meaning of terms, or the distinction of character, in which the defendant acted, first as superintendant of the public sales, and afterwards as register of the land office; for if the terms used in the 10th section, had been sufficiently comprehensive to embrace both public and private sales, we should not have construed their meaning or restricted their operation on that ground.

If any fraud was property in their They were the

But if the register had been guilty of a manifest fraud on the government, it is a question between the parties affected by the transaction. Government might have disavowed the contract and withheld the title, or they might have waived the objection and confirmed the sale. This they have done, and it does not lie in the mouth of a third person to complain. The party on whom a fraud is practised, may take advantage of it, or waive it. If he does the latter, and confirms the contract by executing a deed, third persons cannot impeach it, much less can a particeps criminis, be suffered to do so. practised in this case, it was by the Greggs, who purchased the names, for the joint benefit of themselves and the register. persons who consummated the fraud, and to say the least of them, they were in pari delicto with the register. The objection, therefore, extends further than counsel would willingly follow it. It the statute contains such a prohibition as renders a purchase, made in the name of another, for the benefit of the regis ter, a fraud on the government, such a purchase is not only void as to the register, but as to all others concerned with him. The act cannot be purged by exclu. ding the register. If fraud existed, the Greggs participated in it, and must be equally affected by it. The objection goes to the whole purchase, and taints it throughout. The same principle that would justify the court in deciding against the defendants, would restrain them from decreeing in favor of the complainants. In all such cases equity refuses to interfere in behalf of either, and as the complainants claim in the character of devisees of R. Gregg, they stand in his shoes.

In regard to the second branch of this objection, it may be remarked, that it is not necessary to resort to the common law to determine the legality of this purchase. The powers and disabilities-the privileges and prohibitions of the register, are regulated by the statute, and are to be decided by it. Congress having prohibited him from purchasing at private sales, by application in his own office, without including in that prohibition the right of purchasing at the public sales, the natural inference is, that they intended to permit the latter. By including in the prohibition only one of the modes of purchase, they have virtually excluded from it the other, thereby clearly indicating it to be their intention not to prevent him from purchasing at the public sales.

But waiving this inference from the statute, the authorities cited to show that the consideration is bad, and the sale void at common law, are not applicable to the case, as between these parties.

The general doctrine in Sug. Law. Vend. chap. 14, sec. 2, is, that trustees, agents, &c. are not permitted to purchase the property to which their trust extends, except under certain restrictions; but as such purchases are merely mala prohibita, not mala in se, they admit of confirmation by the injured party, who alone can take advantage of them; and if the cestui que trust acquiesces for a long time, equity will not assist him to set aside the sale.

In this case, the cestui que trust has not only acquiesced more than twenty-five years, but has literally confirmed the sale. He is still satisfied with it, and the only complaint we hear is from third persons, who occupy the place of a particeps criminis. The doctrine is well established, that the remedy for a breach of trust is exclusively with the party injured. The cestui que trust may apply for a new sale, or may confirm the former sale; and if the purchaser [the trustee] has sold at an advance, he may claim the excess.

In Davoe v. Tanning, (2 John. Cha. 252) the principle is clearly expressed, that none but the party injured can question the validity of the sale. In that case, chancellor Kent ordered the lot to be set up again, and re-sold for the benefit of the cestui que trust, provided it would sell for more than the amount of the former sale, together with the sum expended in improvements and interest; but, if it would not sell for more than that amount, that the first sale should be confirmed.

In Doolin v. Ward, cited from 6 John. 194, the claim of the plaintiff rested on a verbal promise, that if the plaintiff would not bid against him at a public sale, he [the defendant] would purchase the articles, and divide them with plaintiff. No consideration passed, nor was there any thing obligatory on either party.

But if, as in the case before us, the plaintiff had paid the first instalment of the purchase money, and the defendant having availed himself of that payment, had afterwards given his obligation to the plaintiffs to deliver him a part of the articles, there would have been some resemblance between the cases, and the decision would probably have been very different.

3. The third ground is, that the executor was not authorized to make the conveyance, and that in doing it he has attempted a fraud on complainant. From the phraseology of the objection, it might be considered as confined to the simple act of the execution and delivery of the deed; but as it is generally true, that the greater power involves the less, the objection was, no doubt, intended to ex

tend as well to the power of negotiating the contract, as to the right of consummating it, by passing the title.

This branch of the case necessarily leads to the examination of the will of R. Gregg. After appointing his brother, N. Gregg, sole executor, the testator goes on to say, "I do invest him with full, ample, and complete power to dispose, (after my decease) in such manner as he thinks proper, all my estate of every description, real and personal, and invest him with full power to settle and adjust all my worldly affairs, as he pleases; meaning expressly to invest him with as full power to that effect as I might possess, not incompatible with the tenor and substance of this last will and testament." It appears to me, that language could not easily be selected better calculated to express the power claimed by the executor, than that which the testator has adopted. The epithets are strong and comprehensive; the power to dispose, and the manner of doing it, are limited only by the discretion of the executor, and it is extended to the whole estate, real and personal. He is also to settle and adjust all his worldly affairs as he pleases, and to prevent cavil, and as if to make certainty more certain, he declares it to be his express intention to vest in his executor the same power that he himself then possessed.

The unavoidable conclusion is, that the executor has power to sell the estate, and to settle and adjust all claims against it.

The executor being clothed with this power, the defendant presented the title bond, executed by the testator and himself. Being fully satisfied of the justice of the demand, he was bound in the faithful discharge of the trust to settle it by conveying the land, and taking up the bond.

4. The last ground taken by the complainants is, that if the executor was authorized to sell and convey, yet the answer and exhibits show it to be such a case of imposition, that equity ought to relieve. The complainants undertake, to maintain this ground, by taking it for granted that the claim was against law, and without consideration. The first part of this hypothesis has been disposed of already, and it is only necessary to look into the answer and exhibits to ascertain that no part of it is supported by the facts. The defendant, as appears from the certificates of the Greggs, as well as from the answer, had an equitable right to the undivided moiety of a section and fraction of land in the vicinity of Chillicothe, purchased in the name of the Greggs, at the public sales. It was ascertained that there was a large surplus in the tract—the defendant had advanced the first payment—the claim had been held in common upwards of a year-the country was increasing at that time in population, with unexampled rapidity, and although the land in the first instance might have been purchased at a fair price, it must have risen greatly in value during the period that the parties held it as a joint property.

The

This being the state of the case, an agreement was made between the parties, by which the defendant was to relinquish his claim to the entire tract. Greggs were to refund the money advanced by defendant, and convey to him, when the patent should be procured, one hundred acres, on the side of the tract adjoining his other lands.-The money was refunded, and a title bond given for the one hundred acres. From these facts it would seem, that the consideration was abundantly sufficient to support the contract, and that the advantage to the parties must have been about equal; but whether this was so of not, they were

all men of prudence, equally acquainted with the situation and nature of the property, and of their respective rights in it. There was no misrepresentation or concealment of the truth. N. &. R. Gregg must have supposed they were making a good bargain; there is no evidence to show they were not, and they seem to have been contented. With the exception of Mrs. McClean's deposition, which, to say the least of it, is accompanied with very suspicious circumstances, there is no evidence, that they at any time complained of their bargain, or wished to rescind it. But if that deposition be taken as true, the presumption is, that the objection of R. Gregg, of which he speaks, was an after thought, originating, not from a belief that he had made a bad bargain, but from a hope that he might oust the defendant of all right, on the supposition that he could not become a purchaser at the public sales.

On no other ground can the objection be reconciled with the certificate he previously gave in conjunction with his brother. But be this as it may, the contract appears to be fair, equal, and equitable. The suspicions cast on it by the bill are very naturally explained, and fully obviated by the answer, which is responsive, and is not contradicted but corroborated by the testimony. It is not the province of equity to weigh the mutual considerations, leading to a contract, with great exactness, in order to ascertain if there be not some grains of difference, nor does it originally limit the power, or control the discretion of the contracting parties, who are treated as free agents, and left to the exercise of their own judgments. Wherever equity does not interfere with a contract, or refuse its aid to carry it into execution for inadequacy of consideration, it is on the ground of fraud, which must either be clearly proved, or result irresistably at the first view, and without calculation, from the grossness of the disparity. The complainants do not present such a case. The most natural inference to be drawn from every thing disclosed, is, that the disparity, if there be any, was in favor of the Greggs. It was contended by the complainants' counsel, that the defendant, by his certificate to N. & R. Gregg that they were the purchasers of the land, was estopped from setting up a claim to any part of it. I do not see how such a consequence can result from that certificate, as it contained nothing inconsistent with the existence of a trust. It frequently happens, for convenience, that one joint purchaser, takes the title in his own name, at the request, or on the express order of the other purchasers. Sometimes land is conveyed to an agent by an absolute deed, as the most convenient way of effecting a sale, but such a deed would not estop the owner from showing the trust, and claiming the purchase money. The certificate in this case was prima facie evidence that the right was exclusively vested in the Greggs, but that inference was not inconsistent with the existence of a trust. A grantor is sometimes estopped by his own deed, but it must be in relation to a matter wholly incompatible with it; as, if a person holding an equitable title, should sell and convey by deed in fee, with covenants of sezin and warranty, and should afterwards obtain a legal title, in his own name, his deed would enure to the benefit of his grantee, and he would be estopped by his covenants from setting up title in himself, which would falsefy those covenants, and be wholly incompatible with them; for if the Covenants were true, the legal title passed by the deed. In this case the certificate of the defendant was compatible with an agreement, that when the patent should be obtained in the name of the Greggs, they should convey a moiety, or any other portion of the land to the defendant.

But independent of all other considerations, if the facts set up by the complainants be true, and the legal inferences they draw from them be correct, they have a complete remedy at law. An examination of the case, as they present it, will show that on the death of their ancestor, the legal title vested in them. That the defendant never had an equitable right to any part of the land. That the executor had no right to convey, and that the deed to the defendant was fraudulent and void. On that state of the case, which is the ground on which they have placed themselves, they have no necessity for the aid of chancery. Again, as it has been decided that the acts of congress do not prohibit the register from purchasing at the public sales, it follows that he had an equitable right to an undivided moiety of the whole tract, and that if the contract on which the title bond was given be not valid, that right has not been extinguished.— And as it is a rule, that he who asks equity must do equity, it would seem that if the complainants could get rid of that contract, they would thereby establish the defendant's right to the undivided moiety-consequently a decree for a reconveyance of the one hundred acres, would be on the condition that they conveyed to the defendant his undivided interest in the entire tract, on equitable

terms.

The bill must be dismissed, at the cost of the complainants.

McFEELY v. VANTYLE,

Where the title of the plaintiff is defectively set out in the declaration, and the defendant in his plea supplies the facts omitted in the declaration, the judgment will not be arrested after verdict.

This case was adjourned from the Supreme Court of Hamilton county, upon a motion in arrest of judgment. The case was as follows:

The first count in the declaration sets out a contract, in which the defendant convenanted to convey to the plaintiffs the half of a mill seat, with a part of the defendant's plantation, necessary for said seat, &c. The part to be conveyed is decribed by metes and bounds, and was to contain five acres at least, or as much as the parties should deem necessary for a mill. One of the lines called for, is to run up the creek, through the bottom, as the parties might agree, to the line of Lawrence's land. It is averred that the defendant agreed to make the plaintiffs, a good and sufficient deed for the premises, on the payment of three hundred dollars, and that that sum was fully paid. The breach is, that the defendant did not make a good and sufficient deed, &c.

The second count sets out the contract substantially as the first does, but avers payment of a part of the consideration money, and a tender and refusal of the residue.

The first plea takes issue on the payment and tender. The second plea alleges that the plaintiffs ought not to sustain their action, because the defendant was ready to make and execute to the plaintiffs, a good and sufficient deed, whenever they would agree with him, as to the line, and pay agreeably to the form and effect of the indenture; and tenders an issue.

A verdict was found for the plaintiffs on both issues, and a motion for a new trial overruled.