*553By the Court. —
Lyon, J.,delivering' the opinion.
This was an action of ejectment in Laurens Superior Court, for the lecovery of a tract of land, known, originally, as the Oliver Mill tract, in which John C. and William Spell were-plaintiffs, and Temperance Kellam, widow of Russell Kellam, deceased, was defendant.
The land in controversjr belonged, originally, to William Oliver, and was, by lnm, by his last will, devised to his widow, Abigail, during her life, and, at her death, to his two sons, John C. and William Spell. The testator, Oliver, executed this will in the year 1811, and died soon after. ITis widow intermarried with Matthew Smith, and died in 1852. The will was not produced, or admitted to probate, until the year 1828, after the marriage of testator’s widow with Matthew Smith. Upon this, the plaintiffs rested their right to a recovery of the premises.
The defendant relies on the following facts to defeat their right: that this tract was sold at public outcry, in the county of Laurens, and bought, at that sale, by Matthew Smith; that the plaintiffs were present at that sale, and not only did not object thereto, but assented, by bidding for the land, participating in the sale, and receiving the' benefit thereof; that all the balance of the land of the testator, Oliver, in that county, Laurens, was sold at the same time — plaintiffs being also present, bidding on all and buying one of the tracts; that they then were of age; had previously agreed, in writing, that the executrix should sell the land in that way; that each of them, one on the 2d and the other on the 4th of February, 1829, appointed Matthew Smith, attorney in fact for them, and, in their name, to sell their interest in these lands; that Matthew Smith bid off this tract at $432, and complied with the terms of sale so far as to account for that sum in the division of the proceeds of sale, under the agreement, which seems to have been that the lands the plaintiffs became entitled to, under the will of Oliver, should all be sold, and the proceeds divided into- four parts, one to, the lawyers, one to Matthew Smith, and one to each of the plaintiffs. The reasons for this extraordinarily' libeial agreement on the part of the plaintiffs d.o not appear. The only interest that Matthew Smith -had was- the life intei est of his wife in one of the tracts; and, -by this- agreement, if it could be enforced, *554he not only retained that interest, but would get the entire fee, and as much money as the fee simple of the tract brought at the sale.
This sale, together with its terms and circumstances, are proven by Richard H. Long, one of the attorneys who received one-fourth part of the proceeds of tlie sale. There was no deed executed for the lands so sold to the purchasers at that sale, nor any memorandum thereof, signed by the party making the same. The evidence does not show when the sale was had, but the indications are, that it must have taken place in the year 1828, or 1829 — most likely in 1829, after the execution of the letters of attorney from the plaintiffs to Matthew Smith. In 1834, Matthew Smith sold and conveyed this tract of land to' Russell Kellam, under whom the defendant claims.
Upon these facts, counsel for defendant insists, that the sale and purchase, by Matthew Smith,'in 1828, or 1829, testified to by the witness, Long, divested the plaintiffs of the title thus acquired under the will of Oliver — or rather, that, as they were present at that sale, assented tO' it, bid for the land, and received the benefit of it, they are estopped from setting up their title against such sale.
The Court below, in charging the jury, gave the defendant the benefit of this principle; but counsel insists, that the qualification made, to wit: “that the plaintiffs were bound by that sale, unless there was fraud in the sale,” was erroneous, because there was no evidence of any fraud; and that is the error complained of. We propose, first, to inquire, whether the plaintiffs were estopped, by that sale, from asserting their title to the land against the defendant ? . And, secondly, whether the qualification made by the Court, as to the fraud in the sale, was justified by the evidence?
1. Were the plaintiffs estopped or bound by the sale? We are clear that they were not. The insurmountable difficulty to the application of that principle, under the facts, is, that whatever, in fact, was agreed to be done, or was done, there was no deed made, or any memorandum in writing, of the sale, by anybody, as evidence that there was a sale, by which the plaintiffs could be estopped or barred of their title to these lands. The plaintiffs agreed, in writing, on the 21st of October, 1828, that the executrix should proceed to sell all the real estate of the deceased. It does not appear that she *555ever done so. They subsequently appointed Matthew Smith their attorney, with power to sell their interest in all the lands, for them, in their name, and to- make their title. It does not appear that he ever did so. Had he, there would have been no difficulty. The reliance is on a public sale, on' a sale day, at which the plaintiffs were present, bid and got the benefit of the sale, and at which Matthew Smith bought this land; but by whom the sale was conducted, or the particular time it took place, is left to conjecture. Now, if a title had been made by the person who conducted that sale, no matter who that was to the purchaser, these plaintiffs being present, assenting to, and participating in, that sale, then, they would have been bound thereby- — they would have been estopped, but this was not done; and to say that a title to lands can be created or passed in this way, is to run directly in the teeth of the -statute of frauds. Matthew Smith was the purchaser, and the defendant has his title, stands in his place, and is in no better condition than if the contest was between plaintiff and Smith. Now, suppose the contest was with Smith, under these facts, in what better condition would, he be, if the plaintiffs had agreed, directly, to sell him the land at $532, and this sum was paid into their hands, no title or deed of any kind being made, or the contract reduced to writing? This would be equally as strong a case, if not stronger; yet, it would not pass the title. The plaintiffs would not be bound by it. It could not be enforced, even in equity, and why? Eor the simple reason that the contract was not in writing. What is the difference between this case and that? Does not the defendant have to depend upon the recollections of witness, after the lapse of more than thirty years, to prove not only that the plaintiffs were present, participating in, and assenting, but there was, in fact, a sale, and that the terms were all complied with. These are things that the statute intended to -provide against, and, we think, effectually so.
It is not pretended that the deed made by Smith, in 1834, to Kellam, was in execution of the powers of attorney. Those powers can not aid the defendant’s title, for the reason that the deed does not purport to be made in execution thereof. Nor is it' pretended that Kellam bought from Smith, or was induced to do so upon -the representations or acts of the plaintiffs, that the title was in him. If that was true, the case would be very different, for then the principle would ap*556ply, which is contended for by the defendant; but it is not so, for we looked carefully and anxiously into the record for some evidence of that fact, and we could find nothing to warrant the conclusion. We are forced to conclude that the plaintiffs were not estopped or bound by the sale, if one was ever made.
2. Suppose, however, that we should be mistaken in this view, still the defendant has not been injured, for the Court below, taking a different view to- ourselves, gave her the benefit of the principle for which she contends, subject to the qualification that the plaintiffs were not bound by the sale, if there was any fraud in it. And we think that the facts not only authorized, but required that charge. The executrix of the will suppressed the existence of such a paper from the knowledge of these plaintiffs from 1811 to 1828, and until the lands were involved in litigation, her title disputed, and about, perhaps, to be lost, for the want of a'will. When it is produced, a ruinous and unjust agreement is made with them, by which they are deprived of one-half their lands, without any consideration or corresponding benefit to them. Those persons wffio stood in a confidential' relation towards them, such as Matthew Smith and his wife, representing the will, and the counsel of these plaintiffs, whose duty it was to look after and protect the interest of these plaintiffs, were themselves the principal purchasers of the lands, when, legally, they could not buy, because, by becoming bidders, themselves, their interest, as purchasers, to get the lands as low as they possibly could, conflicted with their duties to their clients to make the land sell for as much as it was worth. Surely, if a sale so made was not open to the inquiry of fraud, on the facts stated, it would be difficult to find one that was. In no view that we can look at this case, can we see any reason for disturbing the verdict of the jury.
JUDGMENT.
Therefore, it is considered and adjudged by the Court, that the judgment of the Court below be affirmed.