By the Court.
Lumpkin, J.delivering the opinion.
It is very apparent that injustice has been done in this-case.
[1.] The defendants rely, first, on the title which they acquired under the sale ordered by the Court; and secondly, they insist that if this is not valid, the paramount title to this property is outstanding in Horace Dinkins; and that, consequently, the plaintiffs in trover cannot recover.
The plaintiffs offered James P. Guerry to prove property in Wm. P. Brown to Cela, the mother of Lev. The defendants, proposed to show, by the same witness, upon cross-examination, that shortly after the marriage of Horace Dinkins with Eliz. Drown, the daughter of Wm. P. Drown, that Cela was sent home to her, and that she had remained in possession of Din-kins and wife, in Houston County, for many years before the deed of trust was executed. Hence, they infer a gift; and this is the outstanding title which they set up in Dinkins.
Dut the Court disallowed this testimony.. Counsel for the defendant in error concede that this was wrong, but contend that the error was cured, inasmuch as Guerry was subsequently introduced by the defendants in chief, and testified to the facts sought to be drawn out upon his cross-examination.
Dut this will not do. The practical effect of this error was, to change the whole line of defence. The cross-examination of aGuerry would have sent the plaintiffs out of Court, had the case stopped there; whereas, by rejecting it the burden was cast upon the defendants to make out Dinkins' title.
[2.] Dut this is not the only nor principal error manifest upon this record. The charge of the Court, in express terms,*288excluded from the consideration of the Jury the title of the defendants, derived from the sale of Lev, ordered by the-Court, and cn which they mainly relied, and restricted them entirely to Horace Dinkins’ title. The Court instructed the Jury, that if they believed that upon the marriage of Horace Dinkins with Elizabeth Brown, or soon thereafter, the father sent Cela home with his daughter, without the right to reclaim the girl, that by construction of law the title to the girl vested in Horace Dinkins, and they should find for the defendants, unless they believed, from the evidence, that Horace Dinkins surrendered the title thus acquired to Cela, and acquiesced in her being included in the deed of trust from Wm. P. Brown to Mrs. Dinkins and her children. In that event, the Jury should find the property for the plaintiff.
Now all this is correct, so far as Dinkin’s title is concerned. But what becomes of the title derived from the judicial sale to Lev, the son of Cela? Is it not plain, that it was withheld altogether, by the charge, from the consideration of the Jury ? It may be true, that Horace Dinkins lost the title acquired by marriage to this property; and yet, the plaintiffs may not be entitled to recover it. It was sold by order of the Chancellor, to discharge the debt due to Counsel for professional services, alleged to have been rendered the trust estate. And if this be so, their title to the negro is perfect, notwithstanding it may have been surrendered by Dinkins to his father-in-law, which we have no doubt it was competent for him to do, provided the rights of creditors or third persons were not prejudiced thereby.
[3.] The great question, we apprehend, in this case is, did the sale under the order of the Judge divest the title of the children who have brought this suit ? It is insisted that the life estate of Mrs. Dinkins, only, was sold, and that the interest of the remainder-men was not and could not be impaired. This depends upon the object of the bill filed against the former trustee and in the prosecution of which the professional services were rendered; and for the payment of which Lev tfas ordered to be sold. If the benefits of that litigation re-*289suited to the children, ’ as well as to the mother; and was necessary for the preservation of the corpus of the trust estate, as wbll as the income; in that event, the remainder-men should defray their proportion of the expense. The original bill was given in evidence on the trial, but there is no copy ih the record. The presumption, of course, is in favor of the order if, indeed, it requires any presumption to support it. It may well be doubted whether it can be controverted, at any rate, so as to affect the title of the purchaser. The Chancellor was, virtute officii, the guardian of these wards; and if the doctrine be true, and we believe it to be incontrovertible, that a trustee, without any authority from the Court, may sell trust property to defray the expenses of litigation, to protect the trust property, a fortrori, will a sale, ordered by the Chancellor himself, in a case which has been conducted under his own eye, pass the title to the purchaser.
[4.] We conciir with Counsel for the defendants in error, that inasmuch as the defendants below relied on the title ciútstanding in Dinkins, it was competent to give in evidence the acts and declarations of Dinkins, showing title out of him; at least, up to the time of the judicial sale. And for myself, I am not prepared to say that these acts and adniis-. áions should be stopp'ed at that time. That sale is based upon the hypothesis of title in the cestui que trust, and not. in Dinkins; and these declarations are corroborative of the fact. The case stands precisely upon the same footing as though Dinkins, himself, were to sue for the slave.