James Moore Wayne

“ The usual mode of selling property under a decree or order in chancery is a direction that it shall be sold with the approbation of a master in chancery, to whom the execution of the decree in that particular has been confided. It matters not whether the sale is public or private by a person authorized to make it. Not that the approbation of the master in either case completes a title to a purchaser. It is only the master's approval of the sale, and is one step towards a purchaser's getting a title. ”

“ The acts of the legislature discharged the trustees named in the devise, whatever may have been their estate in the land under it, but did not vest an estate in fee in Thomas B. Clarke.
We will now precede our inquiry into the jurisdiction given to the Chancellor by the acts, with a few remarks, which will aid in determining the extent of that jurisdiction, and what would have been its rightful exercise.
Jurisdiction in chancery is inherent and original, comprehending now almost every exigency of human disagreement, for which there is not an adequate remedy at law. ”

“ The father, being unable to support himself and his children, asks that a sale might be made of a part of the devised premises, the rents, issues, and profits of which he was entitled to during life. An act is passed, permitting the appointment of trustees, giving a power to sell, and securing to the children an amount from the sales, thought by the legislature to be only an adequate compensation for the sale of land in which they then had a vested estate in remainder, which would become theirs in fee simple absolute upon the death of their father. ”

“ But we cannot yield assent to the proposition, that the jurisdiction of the county court could not be questioned, when its proceedings were brought collaterally before the Circuit Court. Where a court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other court. But if it act without authority, its judgments and orders are nullities ”

“ And another is the trustee act of Sir Edward Sugden, for amending the laws respecting conveyances and transfers of estate and funds vested in trustees and mortgagees, and for enabling the courts of equity to give effect to their decree and orders in certain cases.
Or, the jurisdiction in equity is extraordinary, as when a statute permits persons to present petitions to the Chancellor for relief in private affairs, when the petitioner cannot get relief by the ordinary course of law, or from the inherent power of a court of chancery. ”

“ Indeed, our point of difference is not concerning a principle or rule in chancery; but as to the application of the rule in Cochran v. Van Surlay. It was said in that case, and it was the foundation of the judgment in it, that a decree in chancery could not be looked into in a collateral way for the purpose of setting aside rights growing out of it. We concur, that neither orders nor decrees in chancery can be reviewed as a whole in a collateral way. ”

“ If he takes a title under an imperfect sale, he must abide the consequence.
In this instance, there was a perverse disregard by De Grasse of the order of the Chancellor and the caution of the master. His conduct puts it out of his power, or any one claiming under him, to complain, if Clarke's conveyance shall be declared to be invalid, on account of the master's disapproval of the sale and his refusal to put a certificate of approval of it upon the deed to De Grasse. ”

“ Whenever the order of the Chancellor, permitting Clarke to convey the estate to creditors or to apply the money arising from it in payment of his debts, has been considered in the courts of New York, it has been intimated that the act did not give the Chancellor the power to give such an order. ”

“ His power over the remainder of the children was a statutory power, and, like all such powers, to be strictly pursued, and when once executed was exhausted.
I. Whether even the trustees appointed by the will took a fee is not certain. In Clarke v. Van Surlay, 15 Wend. (N. Y.) , 442, it was conceded that 'the legal interest in the property under the will was in the cestuis que trust.'
It is a general rule in the construction of devises, that trustees take no greater estate than is necessary to support the trusts, whatever words of inheritance may have been used. ”

“ Under the second section of said act, all the rights and duties are conferred upon him which would have devolved upon the trustees under the act of 1814, by the fifth section of which they were to lease from time to time, receive rents and profits, and do other acts requiring a legal estate.
4th. A legal estate in trust may be implied even in private instruments, when the acts to be done are such as to render it proper and essential that the trustees should have the legal estate, and not a mere trust power. ”

“ Clarke was not vested with the legal estate in remainder, he was clothed with a statutory power,-a common law authority, as defined by Mr. Sugden. 'A power given by a will, or by an act of Parliament, as in the instance of the land-tax redemption acts, to sell an estate, is a common law authority.' 1 Sugd. on Powers, 1.
A power is to be strictly pursued. ”

“ It concerns only those for whose benefit such a law was passed, and because the decision under it is no rule for any other future case. It may from analogy be cited for the interpretation of another private law of a like kind, but then the utmost extension of it would be, that there would be two judgments in two private cases, which only show more plainly that no local law had been made by both. ”

“ Clarke was also disabled from alienation, except for a money consideration.
The acts give no authority to do more than to sell or to mortgage. The purpose was to raise funds for investment.
The first act provides, that the trustees shall invest the 'proceeds in any public stock of the United States, or of this state, or bank stock, or shall put the same out at interest on real security.' (Sec. 3 of first act.) ”

“ That the whole of this property was mortgaged or conveyed for old debts; that no proceeds were ever invested, or secured, or even received from the grantees or mortgagees.
(5.) That, so far from providing for the children, or protecting the estate, he suffered a large portion of the northern moiety to be sold for assessments, and was proceeding to dispose of the northern moiety for twenty-one years, when, on the 31st of March, 1826, a bill was filed against him on behalf of the children, and an injunction issued. ”

“ Clarke conveyed nothing by his deed.
IV. A statutory power once fully executed is exhausted. 'An authority once well executed cannot be executed de novo.' 3 Vin. Abr., p. 429, § 42; Palk v. Lord Clinton, 12 Ves., 48; Barnet v. Wilson, 2 Younge & Coll., 407; 1 Sugd. Pow., 359.
Therefore Mr. Clarke, having once fully executed his authority by a mortgage to Simmons, could not execute it again by a conveyance to De Grasse.
Second Point.-If, however, Mr. Clarke were to be deemed vested with the legal estate in remainder, he was disabled from alienation, without the consent of the Chancellor. ”