By the Court,
Brown, J.This is an action of ejectment to recover the possession of an undivided seventh part of a lot of land in Westfield, Bichmond county. It was tried before Mr. Justice Scrusham and a jury, ah the Bichmond circuit, in November, 1861, when the complaint was dismissed and the plaintiff nonsuited. The plaintiff thereupon excepted, and the exception was ordered to be first heard at the general term.
The plaintiff claimed title as one of the children and heirs at law of John Seguine, who died seized of the premises in dispute on the 6th of October, 1813. He left a last will and *247testament, bearing date September 4th, 1813, which was executed and published in due form of law to pass real estate, and therein appointed his brother, Joseph Seguine, his brother-in-law, George W. Barnes, and his wife, Margaret, the executors and executrix thereof. The will was proved before the surrogate, and letters testamentary were issued to J oseph Seguine and Margaret Seguine, who took upon themselves the execution thereof. George W. Barnes declined to accept the trust. The will contained this direction amongst others : First. “ I order that so much of my estate shall be sold ás shall be sufficient to discharge all my debts. I order and require that all my land, lying south of Woodrow, shall be sold as soon after my decease as possible, and when sold the proceeds shall be put out at interest, and the interest regularly paid unto my wife until my youngest child is eighteen years of age, provided my wife does not marry;” at which time it was to be divided, with the proceeds of certain other lands, among his children, in the proportion of three parts to each of his sons, and two parts to each of his daughters. He gave his wife Margaret all his real and personal estate which was unsold, until his youngest child was eighteen years old, unless she should marry. The premises referred to in that part of the will quoted, as lying south of Woodrow, are those in dispute, and contain forty acres of land. The proof showed that efforts were made by Joseph Seguine, the executor, to sell the land, which were not effectual ; Margaret, the widow, remaining in the possession and taking to her own use the profits thereof, from the time of the death of the testator until April 27th, 1826, at which time J oseph Seguine and Margaret, as such executor and executrix, by deed of that date, sold and conveyed the premises in fee to Robert Seguine, one of the testator’s children. This deed describes the grantors as executor and executrix of the last will and testament of John Seguine) deceased; recites that he died seized of the premises granted, and refers to the power given to his executors in his will to sell, and de*248dares that the deed is made in execution of the will. The consideration is therein said to be $700. It was acknowledged on the day after its date, and was recorded on the 2d of May thereafter. Bobert Seguine, by his deed, bearing date April 28th, 1826, conveyed the premises in fee to Bornt Seguine and the said Joseph Seguine. And on the same day Margaret, the widow, released to them her dower in tho premises for the consideration of one dollar. Bornt Seguine, who was a brother of the testator, and Joseph Seguine, immediately entered into possession and so continued until'the death of Bornt, who devised his interest to Joseph, who also remained in possession until his death, in 1849. Hq left a will, in which he devised the lands to Joseph Bennett, the defendant, who has been in the possession since that time. The proof also showed that the $700 consideration money, mentioned in the executors’ deed, was credited to the estate of the testator and distributed amongst his sons and daughters in execution of the trusts of the will. There is amongst the exhibits a receipt from John Johnson, the husband of the plaintiff, Catharine, given to Joseph Seguine, the executor, in which he acknowledges to have received $363.28, in full of the legacy bequeathed to Catharine by the will of her father, except her share in certain moneys of the estate held by the widow, Margaret, for life, and a small sum held for the life of one Frederick Seguine. This receipt is dated J une 19th, 1827. There is also a similar receipt signed both by John Johnson and Catharine Gr. Johnson, bearing date October 2d, 1849, for $173.34, given to Henry S. Seguine, executor &c. of Joseph Seguine, deceased, which is declared therein to be in full settlement of all claims against the estate of Joseph Seguine. The plaintiff, Catharine, was born in May, 1805. She married John Johnson, at what time does not appear, but before June 19th, 1827, the date of his receipt. He died December 19th, 1859. The‘widow, Margaret, never married again.
The effect of the two deeds—that from the executors to *249Robert Seguine and that from him to Bornt and Joseph Seguine—is one of the principal questions in dispute. Did they have the effect to pass the title ? That Robert Seguine does not recollect the transaction, and thinks he did not sign the latter deed, is of no value but to show the infirmity of his memory. There are the two instruments duly acknowlledged, and recorded thirty-six years ago, and there are the possessions under them for that period of time. Against such facts his want of recollection has no weight whatever. The theory of the plaintiff is that Joseph Seguine, the trustee, could not become the vendor and purchaser of the trust property at the same time. In one sense this is true. He could not in that way acquire a perfect title—a title indefeasable and absolute against all the world. But the real question is, whether he did not acquire such a title as carried with it the right to the possession—the right of property and its incidents—the right to hold and enjoy, and to transmit to others, so long as the title which he had was not vacated and set aside. The title at common law is good. It is not true that a sale and conveyance by a trustee, of the trust property, so that he becomes the purchaser himself, is void. Such a sale and conveyance is capable of confirmation by the express act of the cestui que trust, by acquiescence and lapse of time; and a title acquired by a subsequent purchaser, in good faith, and without notice of the subject conveyed, would be good beyond dispute. These consequences could in no case ensue if the sale and conveyance was absolutely void ; because that which is void does not exist, and cannot be confirmed, nor become a connecting link in the chain of title. Sales and conveyances of this character are voidable only. They are voidable in the equity courts, at the instance of the cestuis que trust alone, not because they are fraudulent, or for inadequacy of price, but upon a rule of morality and policy, having reference to human infirmity, which forbids that a man should act as vendor for others and as purchaser for himself of the same subject matter, and at the same time. *250“ The trustee may have acted from the best motives ; the sale may have been fairly conducted, and the price obtained full and ample, yet the courts will open and order a resale if the parties—the cestuis que trust—are not satisfied with it, and make their claim, and their bill is filed within a reason-, able time. I quote from the opinion of the chancellor in Davoue v. Fanning, (2 John. Ch. 251,) a leading authority in our courts on the subject: “ However innocent the purchaser may be in the given case, it is poisonous in its consequences. The cestui que trust is not bound to prove, nor is the court bound to judge, that the trustee has made a bargain advantageous to himself.' The fact may be so, and yet the party not have it in his power distinctly and clearly to sliow it. There may be fraud, as Lord Hardwicke observed, and the party not able to prove it. It is to guard against the uncertainty and hazard of abuse, and to remove the trustee from temptation, that the rule does and will permit the cestui que trust to come at his own option, and without showing actual injury, and insist upon having the experiment of another sale.” In Campbell v. Walker, (5 Vesey, 678; 13 id. 600,) Lord Alvanly, then master of the rolls, declared the rule necessarily existed to this extent. That was a devise of real estate to trustees to sell. They sold at auction, and bought * in a part for themselves at a fair price. , There was no proof that the sale was at an under value, or that the sale was not bona fide and. regular. The bill was filed in behalf of residuary legatees, then infants, to have the sale set aside and the lands resold. It was accordingly so decreed, and the master of the rolls said the rule did go to the extent that the cestui que trust had a right to set aside the purchase and have the estate resold, if he chose to say in a reasonable time, that he was not satisfied with it. The trustee purchases subject to that equity. He buys with that clog.” In making a decree vacating a sale of this kind, the court will make it upon terms, in regard to purchase money, already paid, and perhaps distributed, in execution of the trusts, só as to insiue *251justice and equity to all concerned. In the present case the proof shows that the plaintiff and her husband have accepted their share of the proceeds of the sale, and, if the rule claimed by her counsel be affirmed, that the sale is absolutely void, she may take her share of the lands in addition. This cannot be. The learned counsel for the defendant has shown by a reference to a multitude of cases, that the grounds upon which the equity courts interfere between cestuis que trust and trustees and their grantees with notice, affirm the validity and force of the title at law. Otherwise the chancery courts would have no jurisdiction. He has exhausted the subject, and left nothing to be added to what his'elaborate brief contains. I therefore conclude that the plaintiff cannot maintain this action to recover the possession of the lands.
I refer briefly to another consideration which is fatal to the claim of the plaintiff. cThe direction to the executors was to sell the land, convert it into money, put it at interest until the youngest child became eighteen years of age, and then distribute it amongst his children in the proportions named. Upon the principle of the case of Kane v. Gott, (24 Wend. 641,) and the authorities there referred to, the estate became impressed with the nature of personal property, and was to be distributed as such. It presents a case of equitable conversion. I extract from the opinion of the court: “ On the principle that equity considers that as done which ought to have been done, it has been long established that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are to be converted, and this in whatever manner the direction. is given, whether by will or by contract, &c. It follows, therefore, that every person claiming property under an instrument directing its conversion, must take it in the character which that instrument has impressed upon it.” Quoting Jarman’s edition of Powell on Devises; so, “where executors are clothed with a trust to sell the real estate for money, *252and appropriate the avails to the uses of the will in the form of personal property, no doubt was ever entertained that it must be considered, in equity, the same as if the testator himself sold the land and then bequeathed the consideration money.” Referring to 2 Powell, 64. Leigh & Dalzell on Eq. Con. 48. The will of John Seguine was made, he died, and the lands under the power were converted into money long before the statutes concerning the rights of property of married women were enacted. The plaintiff, Catharine G-. Johnson’s share of the proceeds of the property lying south of Woodrow, and referred to in the will, became the property of her husband, John Johnson, by virtue of his marital rights, if he chose to reduce it to his possession during life. It was in every sense personal property; and, like all other-personal property and choses in action of the wife, the husband might take it to his own use, sue for it in his own name, release it or assign it over to another person, and vest the assignee with the right of property in it. We have already seen that John Johnson, the husband, accepted his wife’s (the plaintiff’s) share of the proceeds of the lands, and gave his receipt therefor. He thereby extinguished all claim which he had upon them as her husband, as he certainly did all claim she could possibly have upon the lands of which they were the proceeds.
[Kings General Term, February 9, 1863.Brown, Scrugham and Lott, Justices,]
The facts upon which the rights of the parties depend were not put in dispute upon the trial, by conflicting evidence, and there was nothing for the jury to pass upon.
Judgment should be entered for the defendant upon the nonsuit.
The case of Ann Journeay v. Joseph Bennett, involving the same questions, and depending upon the same evidence and in which a similar decision was made at the same circuit, should be disposed of in the same way, and judgment of non-suit entered therein for the defendant.