The bill of exceptions found in the record contains a great deal of superfluous matter — the material facts may be thus shortly stated:
The two slaves in dispute, with some others, were, by a bill of sale executed in Florida, in 1830, by Jonathan Dearman, the father, and the plaintiff William, his son, conveyed to Solomon, another son, and husband of the defendant, Anna Dear-man, upon the consideration, as expressed in the bill» of sale, of thirteen hundred dollars. It further appears, that at the time of the conveyance there was a parol agreement that Solomon should retain possession of the slaves until his death, or *524until all the children of his father, Jonathan, came of age, when the slaves were to be equally divided among the children of Jonathan. Evidence was offered conducing to show that the slaves were brought to Alabama, and the conveyance made to Solomon, that he might be able to protect them if seized as the property of Jonathan, the father, although it appears that the title to the slaves was in William, having been acquired, by him by exchange with his father as far back as 1812. It does not appear that the consideration was paid, except by the acknowledgement of William.
The negroes were sent to Alabama in the spring of 1832, and Solomon followed and took possession in the fall of that year, and retained possession until IS38, when he died, and the defendant, Anna Dearman, administered and returned the slaves to the County Court, as the property of the estate.
Some time after, the brothers of the deceased claimed a division of the slaves, which, after some altercation was agreed to by the administratrix, and a division made, and the slaves delivered, the two sued for in this action being assigned to the plaintiff, who suffered them to remain to assist in getting out the crop. The administratrix afterwards refused to deliver them, and this action is brought for their recovery.
It is insisted that this was a combination between the brothers to delay, hinder and defraud the creditors of Jonathan Dear-man, and that no right can be derived from so impure a source which can be enforced in a Court of law. If it be true that the sale to Solomon was merely colorable, and made with the intent supposed, although it would be utterly void as to those designed to be defrauded by it, it was binding on the parties to the agreement, and all claiming through them, and Solomon took the property discharged from the performance of the illegal condition.
If, however, the slaves were not bound for the debts of Jonathan Dearman, the father, although some apprehension might be felt by the family, that as he had once owned them, they might be subjected to the payment of his debts, or, in the language of the bill of exceptions, be “seized for the payment of his debts,” the agreement to invest Solomon with the title to prevent this result would not be fraudulent; because, on this hypothesis, the property was not subject to the payment of *525Jonathan^ debts, and therefore a contrivance to prevent that result, though it might throw suspicion over the whole transaction, could not be a fraud on the creditors of Jonathan.
On the supposition that the transaction was bona fide, Solomon took the slaves charged with a trust, that on his death, or on the children of Jonathan Dearman coming of age, they should be equally divided between the children of Jonathan. This trust a Court of Chancery would have enforced and the administratrix might have carried into eifect, as there can be no possible objection to her doing that voluntarily, which a Court of Chancery would have compelled her to do.
Although if the sale had been a fraudulent contrivance, Solomon would have taken the property discharged from the performance of the illegal condition as already stated. Yet, if he had executed the contract by dividing the slaves, it would have been binding on him. For although the law will not enforce a fraudulent executory contract, yet if it be executed, and the parties are in pari delicto, the law will not interfere between them. [Rochelle v. Harrison, 8 Porter, 352; Black & Manning v. Oliver, 1 Ala. Rep. N. S. 449.] But upon his death, without executing this contract, the property descended to his heirs at law, who were not, any more than their ancestor, bound to carry into effect this illegal condition. Nor could the legal representative of the deceased, by giving effect to an illegal contract, divest the title of the heirs at law, or defeat the rights of creditors.
To apply these principles to this case. The Court charged the jury, that unless the division of the slaves, with the assent of the defendant, among the children of Jonathan Dearman, was founded upon a valuable consideration it was void.
The objections to this charge, are, first, that it was not a charge upon the facts of the case. There was not only no evidence that a valuable consideration was given for the division of the slaves, but it is expressly shown that none was given — ■ the charge therefore was entirely abstract.
Second — The charge supposes that if a valuable consideration had passed to the administratrix at the time of the division the title to the property would have passed. This is not the law. The statute declares that “it shall not be lawful for any executor, &c. to take the estate, or any part thereof, of any tes*526tator or intestate, at the appraised value, or to dispose of the same at private sale, except where the same is directed by the will of the testator. But in all cases where it may be necessary to sell the whole or any part of the personal estate of any testator or intestate, it shall be the duty of the executor, &c. to apply to tbe Orphans’ Court of their county for an order of sale, and upon obtaining the same to advertise, &c., and to sell the same at public auction to the highest bidder, giving at least six months credit,” &c. [Aik. Dig. 180, §13.]
It is unnecessary to inquire into the powers of executors at common law, not only because here administration was granted on the estate, but also because the whole subject is governed and controlled by the statute. We'will not inquire whether some portions of the act regulating the sale of the estates of deceased persons may not be directory merely, because here the sale, (if indeed, it can be called one,) was without any order of Court directing a sale to be made, and it was made privately. This the statute declares unlawful, and certainly no right can be derived from an unlawful act. The law is thus declared in a construction given to this particular clause in Ventriss v. Smith, [10 Peters, 161,] and it meets our entire approbation. If then there had been an actual sale made of the slaves in qustion to the plaintiff by the administratrix privately, and a full consideration paid, the title would not have passed as against the heirs, distributees or creditors. How far such an illegal sale would be binding on the executor, we need not inquire.
It may be said that if this is an error it is one in favor of the plaintiff in error, but it is manifest from this examination, that the case was not put to the jury on its merits, but was made to depend on the existence of a fact which was not only foreign to its merits, but which was not in evidence before the jury.
The Court should have instructed the jury to inquire, first, whether there was an actual sale of the property to Solomon, without condition, and if they found such to be the fact, they, must find for the defendant. Second — if there was proof of an agreement at the time of the transfer of the slaves to Solomon, to divide the negroes at his death, or upon the arrival at age of the children of Jonathan, among those children, then to *527inquire, upon the principles laid down in this opinion, whether that agreement was entered into in good faith, or with intent to delay, hinder or defraud the creditors of Jonathan Dearman, and that if they found the latter to be the fact, then they must find for the defendant. But if the agreement to divide the slaves was entered into in good faith, then the defendant, as administratrix, was justified in executing the contract; and if the slaves in controversy had been delivered to the plaintiff as-his share in the division, he was entitled to recover them in this action, notwithstanding they may have been left with the defendant to assist in gathering the crop.
Let the judgment be reversed and the cause remanded .for another trial in conformity with this opinion.