By the Court. —
delivering the opinion.
Elizabeth Eliza Bucldey, being about to intermarry with one Robert D. Papot, executed a marriage settlement, whereby she reserved to herself a life estate in the slaves, then in her possession, with remainder in fee to the offspring of the intended nuptials. The plaintiff below, and in error, is the only issue of this marriage. The mother and Roger Olmstead, the trustee, having both died, the father sold one of these slaves, July, privately to one Zachariah M. Winkler, under whom the defendant claims, and appropriated the proceeds to his own use. Samuel N. Papot was a minor at the date of this transaction, and upon arriving at age, in
The marriage settlement was attested by two witnesses, and proven and admitted to record, upon the oath of' one of them, before the Clerk of the Superior Court. Was this authentication sufficient to admit this paper to record, so as to entitle a copy to be read itt evidence, the original instrument being lost 1 and was the r egistration constructive police to purchasers ? The Court help w charged the Jqry, and we think, very properly, that “the deed pf marriage settlement having been recorded upon probate before the Clerk, was illegally proven and improperly placed upon the record, and was no notice of the existence of the marriage contract,”
All of the early Acts, regulating the registration of deeds, require them to be proved before a Judge of the Superior, Justice of the Inferior Court, or Justice of the Peace. They seem to treat it as a quasi judicial proceeding. No such authority has, by any Statute, been conferred upon Clerks; and the maxim ex-pressumfacit cessare taciturn, would in such case apply. It is contended that under the Judiciary Act of 1799, Clerks are empowered to administer oaths in all business appertaining to their office. And so they are, and, as we believe, in vacation, as well as in term time; as for instance, in receiving interrogatories, compelling securities tendered, on entering an appeal, to justify, and-insolvents to swear to their pecuniary inability to give security on the appeal. In these, and such like matters, appertaining appropriately to the office of Clerk, he is clothed with authority to administer oaths; but it is no part of the Clerk’s duty to authenticate conveyances, so as to fit them for registration, but only to record them when brought to him, properly proven, for this purpose, As the Clerk’s office is very generally used for executing deeds and bills of sale, it would be found very convenient to delegate to, this officer the power here claimed, and to make his official attestation, like that of a magistrate’s, sufficient to admit a deed to- record. It is competent, however, for the Legislature only to do this.
Biit had the law been otherwise, the decision must have been the same, namely : that the registration of the marriage settlement was not such notice as would affeqt any body. The law now requires marriage settlements to be recorded within three months
[2.] But secondly, it is complained that the Court erroneously instructed the Jury, that “should they believe that the defendant was a purchaser, for a valuable consideration, and without actual notice of the marriage deed, the plaintiff was not entitled to recover ; and that the plaintiff was not entitled to recover in this case, if defendant had purchased for a valuable consideration.”
Now we are unable to reconcile this charge with the previous opinion of the Court in the samej;case, to wit: “that Robert D. Pa-pot had no right, as natural guardian, to sell or dispose of the property embraced in the marriage settlement; that the defendant acquired no title to said property by said sale, and that the Statute of Limitations did not proteetjhim.” If the vendor had no right to sell, and the vendee acquired no title by the purchase, and time had not run in his favor, how does the fact that Winkler paid a valuable consideration for the negro, bar the recovery of the true owner ? It surely will not be gravely insisted, that if A find and sell to B the runaway slave of C, for a full price, and without notice, that C cannot sue for and recover his property; and yet, the argument of counsel, if it amounts to anything, goes to this extent; for he puts it upon the bona fides of the purchase, regardless of
[3.] Had the sale of this negro been made by Roger Olmstead, the trustee, during the lifetime of Mrs. Papot, the wife, instead of by the husband after her death, the purchaser would have acquired a good title. For I take the law to be clear, that while the power of the trustee over the legal estate or property vested in him, properly speaking, exists only for the benefit of the cestui que trust, yet, as the legal owner, he may do many acts to the prejudice of the cestui que trust i and among the rest, he may even dispose of the property, so as to bar the interests of the cestui que trust therein, as by a sale to a bona fide purchaser, for a valuable consideration, without notice of the trust. But where the alienation is purely voluntary, or where the estate devolves upon heirs, devisees or other representatives of the trustee, or where the alienee has notice of the trust, the trust attaches to the estate in the same manner as it did in the hands of the trustee himself, and it will be enforced accordingly in Equity. 1 Madd. Ch. Pr. 363, 366. 2 Fonbl. Eq. b. 2, ch. 7, §1, note a. Pye vs. Gorge, 1 P. Wm. 129. Saunders vs. Dehew, 2 Vern. 271.
[4.] There is another familiar rule in Equity, in view of which I would respectfully suggest the error in this case has been committed, namely: that against a bona fide purchaser, for a valuable consideration, without notice, a Court of Equity will not interfere to grant relief. For, in the view of such a Court, such a purchaser has as high a claim to assistance and protection as any other person can have; and where the equities are equal, the Court withholds itself from any interference between the parties. 1 Story’s Eq. Jur. §139. Mitford's Eq. Pl. by Jeremy, 274, x. Cooper’s Eq. Pl. 281 to 285. 2 Fonbl. Eq. b. 2, ch. 6, §2, and notes. Malden vs. Merrill, 2 Atkin. 8. Newland on Contr. ch. 19, p. 342.
[5.] But the plaintiff in trover here is not invoking the aid of a Court of Equity to assist him in the obtainment of his rights. He