pronounced the decree of the Court.
In disposing of this case, it is necessary to ascertain what is the fair construction of the will of Jacob Watson, and what powers are therein given to those, who have attempted to act in pursuance of those powers. To this point, the words of the will are, “ I give and demise unto John Murray, Edmund Prior, and my grandson, Jacob F. Watson, all of the city of New York, &c., and to their heirs and assigns forever, all my lands, tenements and hereditaments whatsoever, and wheresoever, whereof I have any power to dispose.” Then follows a similar bequest of all his debts and personal estate, wherever they may be. The will then pro-* ceeds as follows, “ 1 do nominate and ordain them, the said John Murray, Edmund Prior, and Jacob F. Watson, and their survivors and survivor of them, executors of this my last will and testament. Nevertheless, my trust and confidence, in them reposed, is, and my aforesaid device, gift and bequest, to them, is upon this special trust, that they shall sell, employ, and dispose of, all my said lands, tenements, and hereditaments, for such purposes, and to such persons, and in such sort, and manner, and form, as, in and by said will, is appointed and directed concerning the same ; also, all my said goods,” &c. “ Item. I direct and appoint, that my said executors and trustees, or the survivors, or survivor of them, do pay all my just debts, Sic. as soon as possible after my decease.” The will then proceeds to'direct, that the said executors and trustees, or the survivors, or survivor of them, sell and dispose of all his lands, Sic. It always preserves the expression, executors and trustees, or survivors or survivor of them.
It is evident, that this will does not create, in the executors, a mere power to sell, as executors ; but vests the estate in the three and survivors or survivor, in trust, for the purposes in said will named ; to wit, to sell and pay debts and legacies. While the three are alive, all must join in a conveyance, to render it valid. The will makes no provision for the event, that a part refuse to accept the trust. The testator has committed the trust to the united skill, judgement,and fidelity of the three. Neither of them can make a title alone, unless he has become the only survivor of the three. He can convey no title, even to the one third vested in him ; for the law will not permit such an execution of a trust, as will render purchasers tenants in common with the trustees, or with any of them. This would injure the value of the trust estate. If a part of these trustees refused or neglected to accept and ex*198ecute the trust, the executor, who acts, must either proceed as ex . . * ecutor, arid sell under such authority from the probate court as the laws W*H sanction, or he must apply to a court of chancery for a decree compelling the other trustees to act, or appointing others in their stead. Nothing, like either of these modes, seems to have been adopted ; but Murray, as executor, not as trustee, and with no order from any court of probate, has attempted to convey these lands to the orator. And had he acted under an order from any court of probate, it could have availed nothing as an authority to convey the lands ofthe testator, lying in this state, unless procured from a court of probate in this state, and, under circumstances, m which the laws of this state will sanction such an order. More evidently still, if possible, could he convey no title to lands in this state, as executor, till he had become executor, and given bonds, in this state, as the law requires.
As nothing appears to vender valid Murray’s conveyance as executor, we will examine whether he had any right whatever to convey these lands, while acting alone, because if he had such right, possibly the misdescription of this right, in his deed to the orator, would be such a defect, as might be cured by some order of this Court. If Murray could convey at all, it must have been as surviving trustee. This he' evidently was not; for Edmund Prior, one of said trustees, is still "living. His testimony is produced and read to us : and the defendant has procured a deed of a recent date from him to the plaintiff, with a view to perfect the title in the plaintiff, and remove the grounds of his complaint. It appears also by Prior’s testimony, that Jacob F. Watson was alive, and was consulted about the estate of the testator, after the date of Murray’s deed to the plaintiff. This warrant taken to be •true, notwithstanding the defendant answers, that he verily believes, that Jacob F. Watson died before the testator. He answered before he saw the testimony of Prior ; and his belief must have come from general report, merely, for he does not pretend to know the fact. But Prior swears to his own knowledge, that he was alive many years after the decease of the testator.
Hence it appears, that all three of the trustees were living in the city ofNew York at the time when Murray contracted to sell, and gave his deed, to the orator.
If the position were tenable, that the decease of one trustee, and declining of the trust by another, or declining by both, would render the deed of Murray alone of any validity, (which position we by no means sanction,) still the evidence does not support *199the fact. The defendant has answered, that he believed Prior declined the trust; but the testimony of Prior, since taken, relates such consultations with Murray, about the estate of the deceased, as render it doubtful whether the information of the de fendant was correct, when he penned his answer, and he did not presume to answer from any personal knowledge of the matter. Moreover, the first probate of the will makes no mention of Prior’s declining, nor does it assign any reason why Murray qualified alone, if Prior had declined,'that would have been a good and natural reason to have assigned in the probate, for the qualifying ' of Murray alone.
On every ground, therefore, the deed of Murray to the orator is invalid. It conveyed no title whatever. And the orator, of course, received no value for the payments made by him and the bond he gave, and the mortgage deed to secure the remaining payments of $2,500. He contracted to purchase the title of Watson in these lands. As the business was done, he obtained no such title.
Now, if this had all occurred in good faith, with no grounds to support fraud, and the representatives o$ Murray could now make the title good in the orator,under circumstances as beneficial for him as if the title had beon good in the outset, this is all the remedy the Court ought to grant. But the evidence does notpre-sent such a case. The most charitable construction of the transaction on the part of Murray would be, that he was notsufficiently careful to- know whether his representations were a correct disclosure of hia powers. That he represented, and made the orator believe, that he had power to convey all the title of Watson, while acting as sole executor of his will, we can entertain no doubt. He represents all this in the preamble to his deed. That the orator believed it, is evident from his accepting a quit-claim deed, and making his payment in part, and giving securities for the remainder. Yet this proves not to be a reality ; so far from it, that the orator could not have compelled the other trustees to convey,had he applied to chancery forthwith, unless he proved their agreement to his contract with Murray. There are strong grounds to presume that Mart ay was intentionally wrong in this business. It seems morally impossible, that he should have supposed his deed good to convey the title of Watson. He appears to be a man of business and had the custody of the will; if not, he ought at his peril to become acquainted with its contents before he proceeded to act under its authority. This is a full answer to the suggestion, that the *200orator was bound to discover wbat title he was acquiring by ht’s quit-claim deed. This might be true, while he should act from h's own knowledge, and not from the representations of the defendant, But, whde the defendant had all the means of knowledge, and undertook to represent his power to convey the title of the deceased, he must not be permitted to deny the orator’s right to trust to his representations. That would be sealing the transaction as a remediless fraud.
Thus we necessarily come to the conclusion, that the orator is entitled to some sort of relief ; and that ought to be appropriate and adequate. The defendant has lately taken measures to confirm the title in the orator, by procuring the deed from Jay to Watson to be recorded, and procuring a deed from Prior, who is now the only survivor of the three trustees named in Watson’s will. The orator is not willing to accept of this. It is suggested, that this deed from Prior is defective in description, ho. If this were the only objection, we could give time for the execution of a deed by him, that would remove that objection. But there are other more important difficulties. About twenty years have elapsed, during which the orator could make no sales of his property, which, by its quantity, he must have purchased with a view to sell again, for it is not to be presumed that men would purchase farms in a town where no title appears of record in the person of whom they would purchase. And, if he did sell, he wonld only plunge himself into greater difficulty, and, probably, into numerous law suits. During all this period, the interest upon his debt has been accumulating,taxes upon the land multiplying,and the value of the lands not increasing, but, perhaps, diminishing. These circumstances render it inequitable that we should compel the orator to be satisfied with this confirmation of title, and leave him liable to pay the remainder of the purchase money with its accruing interest. The orator’s case is peculiarly hard at best. He paid $1,500 at the time of the purchase;- and the answer admits about $600 paid after-wards,and endorsed. The payment of sundry taxes upon these iands, by the orator, is also admitted. We can make and enforce no decree of restoration of these monies. They are not in the hands of the defendant, who is administrator de bonis non of Murray, not of Watson. It is presumable, that those- monies have gone for the benefit of Watson’s estate twenty years since, and could not now be recalled even if the executors and legatees of W atson were made parties to this bill.
Rut, it is urged, that the orator is responsible for all this lapse *201of time, because it does not appear, that he ever applied for a better title, nor that any adverse title has been set up against him. This, truly, does not appear. Neither does it appear, that payments have been called for by Murray, or his representatives for about the same period. These afford balancing presumptions. The concern seems to have been abandoned on both sides, and lain dormant, till the late suit to obtain collection, or foreclose the mortgage.
Fletcher & Cushman, for orator. William & John Mattocks, for respondent.; If these objections were less imposing than they are, still, if the defendant would urge upon th.e orator this confirmation of title, he ought to remove all presumptions of fraud in Murray in making and perfecting his contract with the orator. Fither party has a right to claim, that unintentional mistakes be rectified, making the opposite party as good, as if the mistakes had never happened : but the party, who has palmed a fraud upon another, has no claim lb recover pay upon perfecting title afterwards. The appearances in this case are unfavorable to the defendant, without further explanation of the transactions of Murray, while his representations are so unlike the facts, which it was his duty to know,
A decree must be drawn up in due form by the solicitors for the orator according to the substratum now furnished ; the substance of which is, that the bpnd, included in the mortgage, be delivered up to the orator to be cancelled, within sixty days from the date of this decree ; that the defendant, and all in the game right,be perpetually enjoined from prosecuting any suit at law or equity upon said bond, and upon said mortgage; that said suit at law, and said .suit in chancery, predicated upon said bond and mortgage, be dismissed without cost to either party, and that the defendant pay to the orator the cost of this suit.
The reason why we allow the ora.tor no cost upon these suits dismissed is, that the defendant, as administrator, is presumed to have found the bond and mortgage among the papers of the deceased, apparently in full force ; and might wpII have felt in duty bound to prosecute, without suffering the demands to grow more dubious by further delay.