This is an action of ejectment for an undivided one-fourth of the land described in the declaration. The case was tried before the circuit judge. His findings of fact and conclusions of law will be found in the statement of the case. Plaintiff appeals.
The defendant claims several defenses to plaintiff’s cause of action. One of them is a tax deed. We agree with the circuit judge that no valid title was obtained by *370virtue of this deed. The assessment which was the basis of the tax sale did not describe any land, and the description in the deed from the auditor general was fatally defective.
Another defense is that plaintiff is estopped from asserting title now because he allowed the sale to go on, and the defendant to make improvements on the land, without objection. We agree with the circuit judge that the plaintiff is not estopped because of any act of his, or want of action on his part. The record shows that, when defendant obtained its title to these lands, plaintiff was in Montana, and there is nothing to show that he had any knowledge of defendant’s negotiation for the lands until the defendant had obtained the deed. See Palmer v. Williams, 24 Mich. 328; Dickinson v. Wright, 56 Mich. 47; Fletcher v. Kalkaska Circuit Judge, 81 Mich. 186; Thirlby v. Rainbow, 93 Mich. 164; Dean v. Crall, 98 Mich. 591 (39 Am. St. Rep. 571).
Defendant also claims that as it has a deed of the lands in controversy from three of the heirs of Edward Petit, deceased, conveying to it all of the lands in controversy, and, after obtaining said deed, it has made improvements on said land, plaintiff cannot maintain this action; saying that, when division comes to be made between the plaintiff and the three heirs who joined in the deed, satisfaction can be made out of the remainder of the estate to the one who did not join. We agree with the circuit judge that this defense is not well taken, and that the conveyance from the other three heirs of Edward Petit does not bind the plaintiff.
Defendant also insists that plaintiff cannot maintain this action because the defendant now has the title which plaintiff, long before bringing this suit, had conveyed to Mr. Ballentine. An inspection of the record satisfies us that the trial judge was quite right in holding that the land in controversy was excepted from the terms of the deed.
The other defense interposed by the defendant is a deed *371made to it by the executors, of Edward Petit, deceased. The circuit judge held this defense to be good. Whether it is good or not will depend upon whether the executors were authorized to make the deed by the terms of the will of Edward Petit. This will has been construed in this court in the case of Farrand v. Petit, 84 Mich. 671, and a reference to that case will make it easy to understand “the question involved here, without making this opinion unduly long. It is the' claim of the plaintiff that the decree in the Farrand Case establishes beyond question the title to the land in controversy in him. It is the contention of the defendant that as it had its deed at the time the Farrand Case was commenced, and was in possession of the land, it was a necessary party to the proceeding, and, as it was not made a party, it is not bound by the decree. With our view of the case, we do not deem it necessary to determine'this question.
It is insisted by the defendant that, outside of clause 6 of the will, abundant power is conferred upon the executors to make the deed which was made to it; and it quotes the eighth clause of the will, which reads as follows:
“I hereby direct that my executors convey to purchasers, by proper deeds of conveyance, what is herein directed to be sold and converted into money, and to my said •children the several shares herein provided' for them, and to the children of my said children whatsoever is herein provided to be given to them.”
Defendant insists that this confers a general power to ■sell, sufficient to authorize the sale of all of the real estate. It is also insisted that a like power is conferred by the ninth clause of the will, which reads as follows:
“Ninth. I hereby constitute Marshall Petit, Henry Fish, and Bethuel C. Farrand' executors of my last will and testament. And to them, for the purpose of facilitating the sale, division, and distribution of my estate as herein provided, I hereby grant, convey, transfer, and set over, in trust for the uses and purposes herein expressed, all my property and estate, real and personal, of which I may be possessed, to be had and held by them in *372trust as aforesaid, and to their successors in said trust and their assigns forever. And they and the survivors of them in said trust, or their successors, are hereby authorized and empowered to sell and deed and convey, according to the true intent and meaning hereof, all and any of the property of my estate left hereby in their hands.” ■
To understand the eighth and ninth clauses of the will, it is necessary to know what the clauses earlier than the sixth and seventh contain. Th% first clause of the will provides for the payment of debts, funeral expenses, and other expenses. The second clause provides for the investment of $2,000 to aid in the establishment of an orphans’ home, or a home for the friendless, at Port Huron. The third clause gives to his daughter the use during her natural life of the brick house in which she lives, and 14 lots. The fourth clause gives to each of his three sons the use of one-fourth of the rest of his propei'ty, excepting his homestead place of 65 acres, and the use of the homestead place of 65 acres, except the house and lots given to the daughter, “or so much thereof as shall not have been sold by my executors as hereinafter provided for, until the said homestead shall be finally disposed of as hereinafter provided for [deducting certain advances], which said property shall be managed, distributed, paid over, and divided as follows: The personal property belonging to my estate, including all bonds, notes, mortgages, contracts for the sale of timber and land, as soon as the same can be converted into money by the ordinary process of conversion and collection, I direct shall be collected and convertedand provision was made for the investment and distribution of the property. The fifth clause provides:
“My real estate (not including my homestead of 65 acres), consisting of houses and lots and stores, I direct shall be kept until my son John Petit shall become 21 years of age; * * * and, when the said John Petit shall attain the age of 21 years, then I direct that the said houses and lots and stores shall be sold, and the proceeds divided,” etc. ■>
*373And then come the sixth and seventh clauses.
When these provisions are read consecutively, it is manifest that the power of sale conferred by clauses 8 and 9 could be exercised only at the times and for the purposes named in the preceding clauses, and the sale of any portion of the homestead (and that includes the land in controversy in this proceeding) could be made only at the time and for the purpose indicated in clause 6, except as that was modified afterwards by a codicil, which modification does not affect the land in controversy here. It is quite evident that, at the time the deed was taken, the defendant company did not rely upon the power conferred by clauses 8 and 9, for the deed contains the following:
“This sale and conveyance being made for the purpose of making a fund from the interest of which the taxes on said land may be paid, according to the provisions of the will of Edward Petit, testator.”
This reference could refer to no other provision of the will than clause 6, and was undoubtedly put into the deed to show that the deed was executed by virtue of the power contained in clause 6, to sell certain lots to create a fund, the interest of which should be used to pay the taxes and expenses of platting the land. We get back, then, to the question, Do the provisions of clause 6 authorize the making of this deed ? Before coming to the provisions of clause 6, provision had been made by the will that Louisa should have the use of the brick house and 14 lots of the homestead. Clause 6 provides that the sons shall have the use of the rest of the homestead until the same shall be otherwise disposed of, and then comes the following direction:
‘ ‘ I direct that, whenever the public good and the best interest of my estate require the same, that this portion of my estate shall be laid out and platted into-lots, blocks, and streets, and that so many of the lots shall be sold as may be necessary to make a fund, the interest of which will be sufficient to pay the taxes and expenses of platting and taking care of the same, and that the remainder thereof shall be kept by my executors for 20 years after *374my decease, when the same shall be divided and distributed as follows, viz.,” etc.
This land is a part of the city of Port Huron. It is evident that, when the provision was put into the will, it was expected the time would come when it would be necessary to run public streets through these lands, and that they should be platted, and that taxes would then be higher than they had been before, and that there would be expense incurred in platting the land. When the deed to the defendant was made, the land conveyed to it had not been platted, and, so far as the record discloses, is not yet platted. Until this was done, we do not see how the executors were clothed with power to make the deed in question.
Another aspect of the case was reached, discussed, and decided in the case of Farrand v. Petit, supra. It was held — as we think, properly — that the effect of the provisions contained in the sixth clause was to restrain the alienation of property contrary to the provisions of 2 How. Stat. §§ 5530, 5531; but it is claimed that the portion of the sixth clause of the will which attempted to restrain alienation contrary to the provisions of our statute may be eliminated from the will, and the land still be subject to sale by the executors under the power of sale. This view was accepted by the learned judge, basing his opinion upon 2 How. Stat. § 5574. As the very purpose of the power of sale conferred by the sixth clause was to create a fund from the interest of which the taxes might be paid upon the land, so as to restrain its sale for 20 years, and enable the executors to carry into effect the unlawful provisions of the will, we do not think the conclusion of the trial judge is tenable.
Taking the record as it now stands, we think the judge erred in rendering judgment for defendant.
Judgment is reversed, and a new trial ordered.
Grant, Montgomery, and Hooker, JJ., concurred. Long, O. J., did not sit.