If the personal estate of a testator and intestate be insufficient to pay his debts, the executor or administrator,

execution shall be concerned directly or indirectly as a purchaser; while a mortgagee is allowed to purchase at a sale at auction under a power in his mortgage. In England, a mortgagee is allowed to bid under an order in chancery for the sale of a mortgage estate. Ex parte Marsh, 1 Madd. Ch. Rep. 148. So, the English rule in equity is, that a creditor taking out execution may become a purchaser of property seised under it, for it is the sheriff and not the creditor who sells. Stratford v. Twynam, 1 Jacob, 418. But in Fisk v. Sarber, 6 Watts & Serg. 18, it was adjudged, after a most thorough and elaborate examination of 'the doctrine of sales and purchases by a person in his fiduciary character, that a trustee is not only prohibited from purchasing the trust estate during the existence of the trust, but that the trust subsists for certain essential purposes, notwithstanding the property is in the hands of a judicial officer, and that a trustee who becomes a purchaser, even at a judicial sale, takes the estate clothed with the same trusts as before the sale, and is accountable as such for the profits. The mere exchange of trust property by the trustee, under a valid power in trust, is not an alienation of the estate of the cestui que trust. The land taken in exchange, is, for every beneficial purpose of the trust, the same estate. Hawley and King v. James and others, 4 Paige. Judge Tucker (2 Blacks. Com. by Tucker, 450-453. tit. Trusts,) lay down the rule in broad terms, and in opposition to some dicta in the Virginia courts, that executors, agents, commissioners of sales, sheriffs, auctioneers, attornies, and all persons in fiduciary characters, are incapable of purchasing the trust subject at sales made by themselves, or under their authority or direction. The supreme judicial court of Massachusetts in Arnold v. Brown, 24 Pick. Rep. 96, lays down the rule in the same broad terms. The general principle extends so far, that if a trustee, mortgagee, tenant for life, or purchaser, gets an advantage by being in possession, or behind the back of the party interested, and purchases in an outstanding title or encumbrance, he shall not use it to his own benefit, and the annoyance of him under whose title he entered, but shall be considered as holding it in trust. Morgan v. Boone, 4 Munroe's Ken. Rep. 297. S. P. 4 Dana, 94. So, if a surety compounds a debt, and takes an assignment of it to himself, he can only claim against the principal the amount actually paid. Reed v. Norris, 2 Mylne & Craig, 361. With respect to sales by executors, if not made collusively, the purchaser is not bound to see to the application of the purchase money. Scott v. Tyler, Dickens, 725. Tyrrell v. Morris, 2 Dev. & Battle, 561. Nor is the purchaser so bound, where a trust is defined, and the purchase money is to be invested in trusts at leisure. Wormley v. Wormley, 8 Wheaton's Rep. 422. The Supreme Court of the United States, in Jenkins v. Pye, 12 Peters' Rep. 241, were not disposed to adopt the broad principle that a voluntary deed from an adult child to her parent was prima facie void. There must be evidence of undue influence exercised by the parent, and operating on the hopes or fears of the child, or some other ingredient, showing that the act was not perfectly free and voluntary.

as the case may be, is authorized to mortgage, lease, or sell so much of the real estate as shall be requisite to pay the debts. This is done in the several states under the direction of the court of probates, or other court having testamentary jurisdiction; and the title so conveyed to the purchaser will vest in him all the right and interest which belonged to the testator or intestate, at the time of his death. The proceedings, in such cases, depend upon local laws; and in New-York, Massachusetts, New-Jersey, Georgia, Illinois, and Mississippi, for instance, they are specially detailed in the revised statutes, with cautious provisions to guard against irregularity and abuse. The interest of the deceased *439 in contracts for the purchase of land, may equally be sold for the like purpose; and provision is made in the statute laws of the states on the subject, for the specific performance of the contracts, under the direction of the surrogate, upon terms safe and just to all parties.

New-York Revised Statutes, vol. ii. 99–113. Ibid. 220. See, also, Statutes of Connecticut of 1830. Revised Statutes of Massachusetts, 1835, tit. 5, c. 71. Statutes of Ohio, 1831, p. 236. 246. Revised Laws of Illinois, edit. 1833, p. 644-646. Statutes of Delaware, 1833, c. 256. Laws of Alabama, 327. 347. Civil Code of Louisiana. Revised Code of Mississippi, 1824, p. 56, 57. McCoy v. Nichols, 4 Howard's Miss. Rep. 31. Statute in New-Hampshire of July 2d, 1822. Hotchkiss's Code of Statute Laws of Georgia, p. 482. Revised Statutes of New-Jersey, 1847, p. 346. In Louisiana the curators of vacant successions sell the immovable as well as movable estate, under the orders of the court of probates, which has exclusive jurisdiction over the estates of deceased persons, and their settlement. The purchaser takes the title, under such sale, free of all encumbrances; and the mortgagee is compelled to enforce his lien on the proceeds in the hands of the curator. Vignaud v. Tonnacourt, 12 Martin's Rep. 229. Lafont. Phillips, 14 ibid. 225. De Ende v. Moore, 14 ibid. 336. The sale reaches all the property of which the deceased had any right or claim, and it reaches even to litigious rights. Seymour v. Bourgeat, 12 Louisiana Rep. 123. So a debtor may transfer to his creditor a litigious right. Early v. Black, 12 ibid. 205.

New-York Revised Statutes, vol. ii. sec. 66-75. Purdon's Penn. Dig. 164.

The sale of the real estate of the testator or intestate, by the executor or administrator, under the orders of the orphan's or surrogate's, or testamentary court, will, in several of the states, apply to the estate left by the debtor at his decease, and avoid all mesne conveyances since his death. But the cases require that the executor should apply within a reasonable time for an order to sell the real estate, or he will not be permitted to interfere with the intermediate and bona fide alienation by the heir. The statute in New-Jersey, passed in 1825, requires the order for the sale to be obtained by the executor or administrator within one year after the death of the testator or intestate, in order to affect the intermediate alienation of the heir or devisee.b

⚫ Mooers v. White, 6 Johns. Ch. Rep. 381-389. Hays v. Jackson, 6 Mass. Rep. 149. Scott v. Hancock, 13 ibid. 162. Warrick v. Hunt, 6 Halsted's Rep. 1. In Tennessee, by the statute of 1827, when the personal estate is exhausted, the administrator, or any creditor for himself and others, may file a bill to subject the real estate to the payment of the debts, and the proceeds of the sale will be ratably distributed, and all creditors are entitled to come in, and equity will enjoin in the mean time all but judgment creditors from proceeding at law. Dalley v. Read, 6 Yerger, 53. The doctrine in the case of Thompson v. Brown, 4 Johns. Ch. Rep. 619, is to the same effect, and so is the English law. Morris v. The Bank of England, Cases temp. Talbot, 218. 4 Bro. P. C. 287. Clark v. Earl of Ormonde, 1 Jacob, 108.

Sales of land by public officers for taxes, depend upon local statutes, and the specific directions must be strictly pursued. Thus, for instance, a sale of land for taxes, in Ohio, is not valid, unless the record of the advertisement of the list of delinquents for four weeks, between 1st of October and 1st of December, be recorded in the auditor's office, as the law requires. Kellogg v. M‘Laughlin, 8 Ohio Rep. 114.

LECTURE LXVII.

OF TITLE BY DEED.

A PURCHASE, in the ordinary and popular acceptation of the term, is the transmission of property from one person to another, by their voluntary act and agreement, founded on a valuable consideration. But, in judgment of law, it is the acquisition of land by any lawful act of the party, in contradistinction to acquisition by operation of law; and it includes title by deed, title by matter of record, and title by devise."

I. Of the history of the law of alienation.

The alienation of property is among the earliest suggestions flowing from its existence. The capacity to dispose of it becomes material to the purposes of social life, as soon as property is rendered secure and valuable, in the progress of nations from a state of turbulence and rudeness, to order and refinement. The power of alienation is a necessary consequence of ownership, and it is founded on natural right. It is stated, by very re

• Litt. sec. 12. Co. Litt. ibid. Neither tenancy by curtesy or in dower are titles by purchase, for they are estates arising by act of law. See supra, p. 373. Dr. Clarke says, that the purchase of the Cave of Machpelah by the patriarch Abraham, as recorded in Genesis, c. xxiii. v. 16, is the earliest account on record of the purchase of land.

Inst. 2. 1. 40. Grotius, de Jure Belli et Pacis, lib. 2, c. 6, n. 1. It may be here observed, in entering upon this important title, that it is a settled rule of law, that not only the capacity of persons to convey or devise real estate and the right to inherit, but, also, the forms and solemnities requisite to pass the title, must be in conformity with the local law of the country in which