No further proceedings were ever had by the court, nor by the executors, in relation to the subject-matter. The proofs and admissions of the parties also showed that Hugh B. Knox, the purchaser, when he bid off the property, gave his promissory notes to the clerk and master for the price, and took from him a paper-writing certifying that he, Knox, had become the purchaser at the sale, had given notes for the purchase money, and that he, the clerk, would make a title at any time. It also appeared that Knox paid off these notes to the clerk, who has since died, and died insolvent. Two of the children of Andrew Knox, the testator, had also died; and in April, 1825, Sarah Penelope Knox was appointed guardian to Andrew Knox and Louisa Matilda, the surviving children. In April, 1826, the sheriff of Chowan County, having an execution against Sarah Penelope Knox, by her directions and in her name, applied to the son of the late clerk and master, who was also his executor and successor in office, and obtained from him $1,253.42, part of the money so paid by Hugh Knox, which was appropriated (462) *Page 358 to the discharge of the execution. This payment to her order was made under a declaration that in strictness she was not entitled to the money, but that the risk of making it would be guarded against by an indemnity. Sarah Penelope Knox had died also insolvent. Hugh Knox also died without having obtained a deed for the land, and at an execution sale against his heirs at law the plaintiff purchased his estate in the said land and received a conveyance therefor from the sheriff. Andrew Knox and Louisa Matilda Knox, who has intermarried with Charles Howcott, afterwards instituted an action of ejectment against the plaintiff to recover the land. In the course of the suit the plaintiff obtained a release and conveyance from Andrew Knox of his undivided share in the premises, but, being unable to make an effectual defense against Howcott and wife, a judgment was rendered against him as to their moiety. The plaintiff then filed this bill against them and the executors of Andrew Knox, the testator, and the administrator of Sarah Penelope Knox, praying that the executors might be decreed to make him a title, and for an injunction against Howcott and wife, and for general relief. The injunction was granted on filing the bill, and had been continued until the hearing of the cause. The ground on which the plaintiff rests his claim to the aid of the Court is, that by his purchase at the execution sale he acquired the estate of the late Hugh B. Knox, who, by virtue of his purchase at the sale of the clerk and master, and of the payment of the purchase money, was, in equity, the owner of the land in dispute. If both these positions can be sustained, it is not easy to see why the plaintiff did not resist the recovery of Howcott and wife, at law. The sale to him, if valid, is made so by our act of 1812, which passes to the purchaser not only the equitable interest of the cestui que trust, but the entire legal (463) estate of the trustee. But, as this objection has not been raised on the pleadings, and even had it been raised, the plaintiff might yet have been justified in asking for assistance in having his title established and cleared from doubt; and as the injunction might be sustained as incidental to the main relief, we have not permitted ourselves to be arrested by it in the consideration of the case. Many objections were taken in argument to the regularity of the proceedings under which the plaintiff purchased at the execution sale, some of which objections it would be difficult to get over, but we forbear from examining them, *Page 359 because, assuming that they are all unfounded and that the plaintiff by that purchase acquired the estate of Hugh B. Knox, we are unable to see that Hugh B. Knox had any estate or any right in equity to demand that conveyance or appointment from the executors of Andrew Knox, which the plaintiff seeks as his assignee.
The will of Andrew Knox contained no devise of the legal estate of the land in question, except to his wife for the term of her life. A naked power, wholly without an interest, was thereby granted to his executors, and the land descended to his children and heirs at law, subject to the estate for life, and liable to be divested when the power so given should be validly executed. An appointment by the executors, pursuant to the power, would operate as the designation of a person to take under the will, and the ulterior legal estate would then pass to the appointee as the devisee of the testator. It is perfectly clear that the executors cannot be compelled to do any act which is not warranted by the scope of the power confided to them. Their sole authority is derived from the testator. What he has empowered them to do, they may do; if they refuse, they may be compelled; if they have done it, but unconscientiously withhold the formal evidence of the act, it may be extorted from them. The question presents itself, have the executors sold the tract in question to Hugh B. Knox conformably to the trust reposed in them? If they have, he and those who may represent him have a right to demand such a deed as shall authenticate the sale and complete the title to the land.
It is a doubtful point, upon the authorities, when there is a devise to one for life, and that after his decease the land shall be sold, whether a sale can be made until after the decease of the tenant for life. However this may be, when an intent may be collected that the (464) testator did not mean by the words, after the decease of the tenant for life, to limit and postpone the time of the sale, but only to mark the determination of his estate (see Hargrave's note to Co. Lit., 113, and Vredale v. Vredale, 3 Atk., 117), we think that in this case such an intent is repelled by the direction given with respect to the application of the proceeds of the sale. The testator, after the devise for life, expresses his wish that the land should be sold and the proceeds divided among his four children or the survivors of them. It is admitted by the counsel on both sides, and the pleadings proceed upon the understanding, that such is the legal interpretation of the will (therefore, it is that the representatives of the deceased children are not brought before the court), that by survivors are meant those living at the death of the tenant for life. The sale directed is for the purpose of dividing among these children the value of that which is itself unsusceptible of *Page 360 partition. If all these children had died before their mother, he unquestionably did not direct that a sale should then be made. The power was a trust, to be called into action only for the benefit of the cestuique trusts. If but one child had survived the tenant for life, the executors might well have hesitated in undertaking to make a sale. The late case in the Court of Exchequer, in England, referred to by Mr. Sugden, in his Treatise on Powers (first American, from the 3d London edition, 273), is a direct authority in point.
If this difficulty could be removed, another presents itself, which, in our opinion, is conclusive — the executors did not sell to Hugh B. Knox. We do not rely now on the forms with which the pretended sale was conducted, irregular and extraordinary as they were, but upon the fact that the alleged price was never paid to the executors or to any person authorized to receive it. Whatever a court of equity, by virtue (465) of its controlling and conservative power over the interests of infants, may order in regard to the disposal or change of their property, it acted in no such character here. The infants were in no way before the court. Their rights were not represented; no decree was rendered, or could have been rendered, changing those rights; the petition was wholly an ex parte one by the widow, who held the life estate, and the executors, who had a power of sale under the will. The court could not enlarge, change or modify that power in any respect. The sale, whether made with or without the sanction of the court, could be rightfully made only by the executors. If they employed the clerk and master to set up the property at auction, the bidding might be regarded as one at their auction. If he received the money as their agent, for that purpose appointed, it would have been a receipt by them. But the whole character of the transaction shows that this was a pretended sale by the clerk as a judicial sale, and that the receipt of the money by him was by color of his authority as clerk. The certificate given to Knox is signed by him as clerk and master, recites a sale made by him under a decree, and obliges him to make a deed whenever demanded. A report of the sale is made by him in his official character, and by an order of court he is compensated for his services in conducting the sale, as such. Had the sale been valid as a judicial sale, the clerk and master would not then have been authorized to receive the money without an order of the court to collect it; and the purchaser, wishing to pay, in such a case, before an order to collect, can only save himself from hazard by obtaining permission to pay it into court. No title can be made until the court authorizes it; and the court will not direct a conveyance before it ascertains that the money is effectually secured for all those who may thereafter become entitled to it. If the master, asmaster, could sell, *Page 361 the payment of the price to him, under these circumstances, unless the money afterwards reached the hands of those to whom it belonged, would not pass the equitable estate in the subject — matter of the purchase. Still less could it have that effect when the master had no authority even to make the sale.
The case may be a hard one upon Hugh B. Knox or on the plaintiff, who claims to have succeeded to his rights. Nothing appears to raise a suspicion that he did not act in good faith. But we cannot make a decree to divest the heirs of Andrew Knox of the inheritance (466) which descended to them from their father, unless the sale has been made, which he authorized by his will. In equity there is no sale without payment of the purchase money. By the misplaced confidence of the alleged purchaser, instead of this money having been paid to those who were interested to receive it, and secured to the intended objects of the testator's bounty, one-half of it has been pocketed by the insolvent clerk and the other half appropriated to the personal necessities of the insolvent widow. The injunction must be dissolved and the bill dismissed, with costs, as to the defendants, Howcott and wife; as to the other defendants, the bill is to be dismissed, but without costs. The executors have come before the Court under very unfavorable circumstances. The misconduct of the widow deprives her estate of a right to remuneration for the expenses of this litigation; and an administrator who relies upon the insolvency of his intestate, and where that insolvency is not contested, is not on that account entitled to costs, in equity. Adair v. Shaw, 1 Sch. Lef., 280; Vredale v. Vredale, 3 Atk., 119; Humphrey v. Morse, 2 Atk., 408.
PER CURIAM. Bill dismissed.