latter. Besides, in this case, the paper under which De Grasse claims has recitals in it, which would exclude any person buying from him from saying that he had not notice enough to put him upon an inquiry into the title of De Grasse.

Our interpretation of the order is, that the approval of the master, and the certificate of it, are not confined to a conveyance in satisfaction of debt, but that the Chancellor meant that the approval and certificate should be given and be indorsed upon every deed of sale and mortgage, as well as upon conveyances in satisfaction of debts.

It was also argued, that the sale to De Grasse was a judicial sale. Unless a legal term of definite and unmistakable certainty in all the past application of it shall be made to comprehend a transaction which it has never included before, the sale by Clarke to De Grasse was not a judicial sale. By judicial sale is meant one made under the process of a court having competent

546*] *We are now brought to the consideration of the point, whether the deed to De Grasse is valid, it having no certificate indorsed upon it that it was approved by a master in chancery. It involves what has been the practice in courts of equity, which, from long standing, habitual use, and uniform judicial acquiscence, has become law-law in England, law in New York, law for the courts of equity of the United States, and law in every State of the Union, except as it may have been mod-authority to order it, by an officer legally apified by the legislation of the States.

pointed and commissioned to sell.

The usual mode of selling property under a The sale by Clarke to De Grasse was an atdecree or order in chancery is a direction that tempt by both of them to evade the order of the it shall be sold with the approbation of a mas- Chancellor, that every sale, etc., made by ter in chancery, to whom the execution of the Clarke, shall be approved by one of the masdecree in that particular has been confided. It ters of this court, and that a certificate of such matters not whether the sale is public or private approval be indorsed upon every deed or mortby a person authorized to make it. Not that gage that may be made in the premises. And the approbation of the master in either case com- in no event could a sale by Clarke, in conformpletes a title to a purchaser. It is only the ity with the order, have been a judicial sale, but | master's approval of the sale, and is one step simply a sale by a private individual authorized towards a purchaser's getting a title. Before, to make it under acts passed for his relief, and however, a purchaser can get a title, he must assented to by the Chancellor, for the purpose get a report from the master that he approves of ultimately substantiating and verifying by a the sale, or that he was the best bidder, accord- court of record the transfer of the property. ingly as the sale may have been made either It was a sale made without process, not by an privately or at auction. That report then be- officer in any sense of the word, but by a pricomes the basis of a motion to the court, by vate person to a private person, after negotiathe purchaser, that his purchase may be con- tion between them, and done by one of them, firmed. Notice of the motion is given to the who had only in a particular way the assent of solicitors in the cause, and confirmation nisi is the Chancellor to sell. ordered by the court to become absolute in a time stated, unless cause is shown against it. Then, unless the purchaser calls for an investi- | gation of the title by the master, it is the master's privilege and duty to draw the title for the purchaser, reciting in it the decree for sale, his approval of it, and the confirmation by the court of the sale, in the manner that such confirmation has been ordered.

We have been thus particular, for the purpose of showing the offices of the master in reÎation to a sale, and what is meant by subjecting a sale to the approval of a master, and to show that such a sale, until approved by the master and confirmed by the court, gives no title to a purchaser of an estate, which he may have bargained to buy. We do not mean to say that such cautionary proceedings upon sales under decrees and orders in chancery may not be dispensed with, by a special order of the Chancellor to pretermit them, but that such are the proceedings, when no special order has been given. Nor do we mean to have it implied that a special order for the master's approval of the sale was not given in this


Now if, in the instance of Clarke's conveyance to De Grasse, none of the usual cautions have been taken by the latter to make the conveyance complete-which, for the sake of the present point, we are only supposing might have been done, subject to our conclusion that Clarke could not have conveyed the premises to him as a creditor-whose fault is it that they were not taken? and how much more is De Grasse's fault aggravated from the testimony in the cause, which proves that he was told by the master, Mr. Hamilton, from the start of his buying or meaning to buy from Clarke, that he would not approve the sale, and make such a certificate of it, upon the paper *given [*548 to him by Clarke, upon such a consideration for the property.

We find the answer to our inquiries in the long experience and practice in chancery. In any sale under a decree or order in chancery, the purchaser, before he pays his money, must not only satisfy himself that the title to the property to be sold is good, but he must take care that the sale has been made according to the decree or order. Colclough v. Sterum, 3 Bligh. 181; Lutwiche v. Winford, 2 Bro. C. C. 251. If he takes a title under an imperfect sale, he must abide the consequence,

The proviso in the order of the 15th March, 1817, is: "Provided, nevertheless, that every 547*] sale, and mortgage, and conveyance *in In this instance there was a perverse disresatisfaction, that may be made by the said ward by De Grasse of the order of the ChancelThomas B. Clarke in virtue hereof, shall be ap-lor and the caution of the master. His conproved by one of the masters of this court, and that a certificate of such approval be indorsed upon every deed or mortgage which shall be made in the premises."

duct puts it out of his power, or anyone claiming under him, to complain, if Clarke's conveyance shall be declared to be invalid, on account of the master's disapproval of the sale and

his refusal to put a certificate of approval of it | Clarke to receive and take the moneys arising upon the deed to De Grasse.

Mr. Hamilton's (the master) testimony in the case is, that Clarke and De Grasse came to him to approve the deed which it is his impression had been filled up by Clarke, and that, upon ascertaining from them the consideration, he refused to do so. The deed, too, recites a consideration of two thousand dollars, and it is proved that the consideration was, in fact, wild, worthless tax lands in Virginia or Pennsylvania, an account for articles furnished to Clarke by De Grasse, and some items of money lent. The witness says, both Clarke and De Grasse came together more than once to his office on the subject, and that he was besought by them frequently to approve the deed; that he would not do so. It is the case of an anxious creditor, holding on to what he could get from an insolvent and prodigal debtor, in spite of what he knew to be the only terms upon which the debtor could convey.

We think that the sale by Clarke was a nullity without such approval by the master, to whom the execution of the order was confided by the Chancellor. "Looking merely to the parties, it is a nullity, because it wants the assent of the Chancellor, through the officer whom he substitutes for himself to give it. Looking to the conveyance, it is void for the want of the performance of that condition precedent which was made essential, not merely to the commencement of the estate, but to the very creation of the power of sale."

It is under that conveyance, and another from De Grasse to him, that the defendant in ejectment claims title to the premises in dispute. They do not give to him any title, either legal or equitable.

549*] *We answer, then, to the points certified to this court for its decision:

To the first point, we rule that the act of the Legislature, stated in the case, devested the estate of the trustees under the devise in the will of Mary Clarke, but did not vest the whole estate in fee, or any part of it, in Thomas B. Clarke.

from the premises and apply the same to the payment of his debts, and to invest the surplus in such manner as he may deem proper to yield an income for the maintenance and support of his family-was not authorized or in conformity to the acts of the Legislature, as they are set forth in the record. That these orders, however, are to be regarded as the acts of a court of chancery, exercising a special jurisdiction under private acts, which did not give to the Chancellor jurisdiction to pass the orders as they have been stated in this answer to the third point.

To the fourth point, we rule that the Chancellor had authority under the acts to assent to sales and conveyances of the estate by the trustees, but not to any sale or conveyance, or any other consideration than for cash paid on said conveyance.

To the fifth point, we rule that the deed executed by Thomas B. Clarke to George De Grasse, for the premises in question, is not valid, it having been made for a consideration other than for cash paid on the purchase.

To the sixth point, we rule that, if the deed to De Grasse *had been otherwise valid, [*550 which we have said was not, it would not be valid without having a certificate indorsed thereon, that it was approved by Mr. Hamilton, the master in chancery, to whom the execution of the order was confided by the Chancellor.

To the seventh point, we rule that the mortgage in fee of the premises by Clarke to Simmons, did not so exhaust the power as trustee, that he might not, after a release from the mortgagee, sell or mortgage the property again; but it was not in the trustee's power to sell to De

Grasse for a debt.

To the eighth point, we rule that the subsequent conveyance of the premises, as set forth in the case, made by George De Grasse, would not give to his grantee, or the grantee's assigns, a valid title against the plaintiffs in ejectment.

Mr. Chief Justice Taney dissented from the opinion of the court in this case, and also in the subsequent cases of Williamson and Wife v. The Irish Presbyterian Congregation of New York, and of Charles A. Williamson and Wife, Rupert J. Cochran and Wife, and Bayard Clarke v. George Ball; and concurred with Mr.

To the second point, we rule that the authority given by the said acts to the trustee to sell, was a special power, to be strictly pursued, and that the trustee was not vested with an absolute power of alienation, but only with the pow- | er to sell with the assent of the Chancellor, sub- | Justice Nelson. ject, in all that the trustee might do, by way of sale or otherwise, concerning the premises, to re-examination and account in equity.

To the third point, we rule that so much of the order set forth in the case, as having been made by the Chancellor, which permitted Thomas B. Clarke to convey any part or parts of the southern moiety of the estate, or any other part of the estate, in payment and satisfaction of any debt or debts due and owing from Thomas B. Clarke, upon a valuation to be agreed between himself and his respective creditors, provided, nevertheless, that every sale, and mortgage, and conveyance in satisfaction, that may be made by the said Thomas B. Clarke, in virtue hereof, shall be approved by one of the masters of the court, and that a certificate of such approval be indorsed upon every deed or mortgage that may be made in the premises, or which authorized Thomas B.

Mr. Justice Catron also dissented in the above enumerated cases, and concurred with the opinion of Mr. Justice Nelson.

Mr. Justice Nelson:

I am unable to concur in the judgment of a majority of the court in this case, and shall, therefore, proceed to state the grounds of that dissent, with as much brevity as the nature and importance of the questions involved will admit.

I shall confine the examination to those grounds which I regard as decisive in the determination of these questions, without stopping to discuss several other points made upon the argument, and which have a more remote bearing upon the case.

The will of Mary Clarke, made and published April 6th, 1802, lies at the foundation of this

controversy; and it is necessary, therefore, to recur for a moment to its provisions.

She devised to three trustees and their heirs, a part of her farm at Greenwich, called Chelsea, then situate in the vicinity of the city of New York, now a part of it, embracing some forty acres of land, together with a dwelling house in town, in trust, to receive the rents and profits, and pay the same to Thomas B. Clarke, a grandson, during his life; and after his decease, to convey the estate to his children living at his death; and if he should leave no children, then, in trust, to convey the same to Clement C. Moore, and his heirs.

the necessary purposes of the family, to be proved before the said masters; and the residue to be invested and the income applied as therein provided by the order.

*Nothing was done under this order [*552 except the sale of a few lots, the sales having been superseded by the master for want of bidders, at the request of the trustee, to prevent the sacrifice of the property. And on application to the Legislature, another act was passed, on the 29th of March, 1816, authorizing Clarke, as trustee, under the order already granted by the Chancellor, or any subsequent orders that might be granted, either to mortgage or sell the 551*] *Thomas B. Clarke, the tenant for premises which the Chancellor had permitted, life, was married in 1802, and in 1814 had a or might permit, him to sell; and to apply the family of six children, the eldest eleven years of proceeds to the purposes required, or that might age; and on the 2d of March of that year, ap-be required, by the chancellor, under the preplied to the Legislature of New York for relief, on the ground that the property devised was, in its then condition, nearly unproductive, and incapable of being improved so as to yield an adequate income for the maintenance and support of himself and family.

The trustees and C. C. Moore joined in the application.

vious acts of the Legislature.

On the 15th of March, 1816, on an application, the Chancellor ordered that Clarke be authorized to mortgage or sell the moiety of the estate, as provided for in the several acts, as might be deemed most beneficial to all parties concerned; and also to convey any part of it in payment and satisfaction of any debt owing by On the 1st of April, 1814, an act was passed him, upon a valuation to be agreed on between for his relief, authorizing the Court of Chan-him and his creditors, provided that every sale, cery to appoint trustees in the place of those named in the will, and providing for a sale of a moiety of the estate by the trustees, under the direction of the Chancellor; the proceeds to be invested in stocks or real security, upon the trusts in the will, and the income to be applied to the maintenance and support of the family of Clarke, and the education of his children. Nothing was done under this act.

and mortgage, and conveyance in satisfaction, that may be made by him, shall be approved by one of the masters of the court; and that the certificate of such approval be indorsed on such deed or mortgage that may be made in the premises. And further, that he apply the proceeds to the payment of his debts, and invest the surplus in such manner as he may deem proper to yield an income for the support and maintenance of his family.

On the 21st of February, 1815, Clement C. Moore, the ultimate remainderman under the On the 2d of August, 1821, Clarke, under this will, released and quitclaimed all his interest in order of the court, sold and conveyed the lot in the estate of Clarke; and on a second applica- question, among others, to George De Grasse, tion to the Legislature for relief, a supplemen- for the consideration on the face of the deed of tal act was passed, on the 24th of March, 1815, $2,000. No approval of the master appeared reciting in the preamble the release, and substi- | to have been indorsed on the deed. tuting Clarke as the trustee of the estate in place of those provided for in the previous act; and authorizing a sale by the trustee of a moiety of the estate, with the assent of the Chancellor, and providing for the investment of so much of the proceeds in Clarke, as trustee, as the Chancellor should direct; the income of the investment to be applied to the maintenance and support of the family, as in the previous act.

The defendant holds through intermediate conveyances from De Grasse, and is admitted to be a bona fide purchaser.

I have thus stated the material facts out of which the important questions involved in this case arise; and I have done so for the reason that, in my judgment, the statement itself presents a history of legislative and judicial proceedings, which demonstrate that the legal title to the premises in controversy is in the defendant, upon well established principles of lawa title derived under a judicial sale, made in pursuance of an order or judgment of one of the highest courts in a State, in the exercise of its general jurisdiction.

This plain proposition is manifest on the face of the record. Every order made by Chancellor Kent was made in his court according to the established forms of proceeding, and rules of the court.

On an application to the Chancellor, under this and the previous act, on the 28th of June, 1815, an order of reference to one of the masters in chancery was made, directing him to inquire into the debts of Clarke, distinguishing between those contracted for the maintenance of his family and the education of his children; and into the then condition of the estate devised under the will, and the means possessed by Clarke to maintain and support his family, other than from the rents and profits of the estate; which report was made accordingly. And on the *The Chancellor had previously de- [*553 coming in and filing of the same, the Chancel-termined (In the Matter of Bostwick, 4 Johns. lor, on the 3d of July, ordered a sale of a moiety Ch. 100), that a proceeding of this character of the estate, together with the house and lot in could be properly instituted by petition instead town; and that so much of the proceeds as of by bill, as he found it to be in conformity might be necessary for the purpose be applied, with the established practice of the Court of under the direction of one of the masters of the Chancery in England. court, to the payment and discharge of the debts then owing by Clarke, and to be contracted for

The practice there had not been uniform, depending somewhat upon the amount of the es

tate; and a distinction had been made, at one time, between real and personal estate; but the later authorities had generally concurred in allowing the institution of the proceeding by petition. 2 Story's Eq. sec. 1354, p. 582, and cases there referred to; Macpherson on Infants, ch. 22, sec. 1, and cases.

In every instance, the application took the usual course of a reference to one of the masters of the court, directing him to inquire into the truth of the allegations in the petition, and report thereon; and upon the coming in and filing of the report, the order was entered.

All the powers and machinery of the court were used in conducting the proceedings; and which, while they facilitate the orderly despatch of business, at the same time enable the parties to present their case in the fullest and most authentic form, for the judgment of the court.

without loss. The suit was brought by the heirs, who set up, as invalidating the title of the defendant, that neither of the children of the intestate was of age at the time of the sale. The statute expressly forbade it, until the eldest became of age. The other ground was, that the sale had been confirmed only conditionally. The court held the parties concluded by the order and sale.

I shall not pursue the examination of this branch of the case farther, as the principle upon which it rests has become incorporated into the very elements of the law. I have referred to these two cases, simply to illustrate the strength and force of the principle, in protecting the title of a bona fide purchaser, standing in the relation of the present defendant.

But it has been argued, that Chancellor Kent, while sitting in his court, administering the law Even if a bill had been filed in this case-under these acts of the Legislature of New York, and we have seen that it might have been, has misconstrued or misapprehended the nature in which event, it would hardly have been of his jurisdiction; and that, instead of sitting as pretended the order or decree of the court a court, he was acting in the subordinate charcould have been questioned collaterally-the acter of a commissioner, or as an individual forms of the proceeding could not have been more strictly observed. Indeed, the petition in the particular case is nothing more than a substitute for the bill, as affording a more speedy and economical mode of instituting the proceedings.

outside of his court; that it was an extraordinary power, conferred upon him by a special statute, prescribing the course of proceeding; and that any departure therefrom, or error in the proceedings, rendered the order null and void, and of course all acts done under it.

Originally it was supposed that a bill was in- It was even intimated, though not argued, dispensable (Fonbl. Eq. Book 2, part 2, ch. 2, that the statutes themselves were unconstitusec. 1, note d), as it still is in England, where tional; that it was not competent for the Legisthe estate of the infant is large, or it is doubt-lature to authorize the sale of the real estate of ful as to the fund. 15 Ves. 445; Macpherson on Infants, p. 214, and cases.

Any party interested in the order had a right to appeal from the decision of the Chancellor to the Court for the Correction of Errors, as appeals may be taken from interlocutory, as well as final decrees, according to the laws and practice in New York.

That an appeal might have been taken in the case is the established practice, and would be doubted by no lawyer there; and which, of itself, would seem to be decisive of the nature and character of the jurisdiction exercised by the Chancellor.

Being, therefore, a judicial sale under the judgment of one of the highest courts of the State, the principle is fundamental, that the 554*] *regularity of the proceedings cannot be inquired into in this collateral way.

The general impression of all the cases on this head, says Lord Redesdale, is, that the purchaser has a right to presume that the court has taken the steps necessary to investigate the rights of the parties, and that it has on investigation properly decreed a sale. 1 Sch. & Lef. 397. And says Mr. Justice Thompson, in delivering the opinion of this court in Thompson v. Tolmie, 2 Peters, 168: "If the purchaser was responsible for the mistakes of the court in point of fact, after it had adjudicated upon the facts, and acted upon them, these sales would be snares for honest men. The purchaser in not bound to look farther back than the order of the court. He is not to see whether the court | was mistaken in the facts."

The defendant in that case held the title under a judicial sale, ordered by the court in a case of partition, where the commissioners had reported that partition could not be made

infants for their maintenance and support, or for their education or advancement in life.

*We suppose this power will be [*555 found to exist in every civilized government, that acknowledges a superintending and protecting power over those of its citizens or subjects who are disabled through infancy or infirmity from taking care of themselves; and that, where they possess the means of themselves, they will be applied, under the direction of the proper authority, to their support and nourishment.

No one doubts the power of the government to take the property of the citizen to support the paupers of the State; and, surely, it can hardly be regarded as a very great stretch of power to provide for the application of it to the maintenance and support of the owner or proprietor himself, or even to the support of members of the same family.

But I shall not go into this question; for whatever may be the objections to the exercise of the legislative powers, we are not aware of any on the ground of repugnancy to the Constitution of the United States, or, if made, that there is any foundation for it; and as to the State of New York, where the question alone must be determined, no doubt is entertained there in respect to it, by any department of the government.

But to recur to the jurisdiction of the Chancellor.

The Court of Chancery possesses an inherent jurisdiction, which extends to the care of the persons of infants so far as is necessary for their protection and education; and also to the care of their property, real and personal, for its due management, and preservation, and proper application for their maintenance.

The court is the general guardian, and, on | Chancellor, by the acts of the Legislature in the institution of proceedings therein involving question, was the power to direct the sale of rights of person or property concerning them, the real estate-to convert it into personalty for they are regarded as wards of the court, and as the purposes mentioned. It was but an enunder its special cognizance and protection; largement, in this respect, of the existing jurisand no act can be done affecting either person diction of the court; placing the real estate, for or property, or the condition of infants, except the purpose of maintenance and education, under the express or implied direction of the upon the same footing as the personalty. With court itself; and every act done without such this exception, every power conferred or exerdirection is treated as a violation of the author-cised under the acts in question, in the manity of the court, and the offending party deemed agement and application of the fund, as weguilty of a contempt, and treated according- have seen, belonged inherently to its general ly. 2 Story's Eq. secs. 1341, 1352, 1353; 3 jurisdiction; and its exercise in the particular Johns. Ch. 49; 4 Ib. 378; 2 Ib. 542; 6 Paige, case was as essential for the proper manage391, 366; 10 Ves. 52; Macpherson on the Law ment and *preservation, and applica- [*557 of Infants, p. 103, App'x, 1; Hughes v. Science, tion, as in any other that might come before 3 Atk. 601, S. C. the court.

If the father is not able to maintain his We can hardly suppose that it was the intenchildren, the court will order maintenance out tion of the Legislature to confer authority upon of their own estate; and the inability need not the Chancellor in one capacity to sell, and in depend upon insolvency, but inability, from another to manage and apply the proceeds for limited means, to give the child an education the benefit of the children. And yet such must suitable to the fortune possessed or expected. be the conclusion, unless we suppose it was in556*] Buckworth v. Buckworth, 1 Cox, *80;tended that the fund itself should be adminisJervoise v. Silk, Coop. 52. The allowance tered out of court, and under the direction of will be made, although the devise or settlement the Chancellor as a commissioner. under which the property is held contains no direction for maintenance (Ibid.), but even directs the income to accumulate. 5 Ves. 194; 195, note, 197, note; 10 Ib. 44; 4 Sim. 132; Macpherson, ch. 21, sec. 2, p. 223.

I must be permitted, therefore, to think, that Chancellor Kent, familiar to his mind as were the powers and duties belonging to his court over the estates of infants, as well as in respect to every other branch of equity jurisprudence, did not mistake or misapprehend the nature of the powers and duties enjoined upon him under the acts in question. And that he might well conclude, that the authority to sell the real estate of the children, for their maintenance and education, was but an enlargement of his general jurisdiction in the management and disposition of their property for the purposes mentioned. Indeed, the very objects of the sale pointed directly to this jurisdiction. How ap

It is also settled, that where there are legacies to a class of children, for whom it would be beneficial that maintenance should be allowed, though the will does not authorize it, but directs an accumulation of the income, and the principal, with the accumulation, to be paid over at twenty-one, with survivorship in case any should die under age, the court will direct maintenance (11 Ves. 606; 12 Ib. 204; 2 Swanst. 436); but if there is a gift over, it will not be allowed without the consent of the ulti-ply the fund for maintenance and education— mate devisee. 14 Ves. 202; 5 Ib. 195, note; Ward on Legacies, 303; Macpherson, pp. 232, 233, 234.

So the court will break in upon the principal, where the income is insufficient for maintenance and education (1 Jac. & Walk. 253; 1 Russ & Mylne, 575, 499); and will break in upon it for past payments (2 Vern. 137; 2 P. Wms. 23); and where the father is unable to maintain his children, and has contracted debts for this purpose, or for their education, the court will direct a re-imbursement out of the children's estate (6 Ves. 424, 454; 1 Bro. C. C. 387; Macpherson, sec. 9, p. 246); and will, if the father or mother is in narrow circumstances, in fixing the allowance, have regard to them, increasing it for the benefit of the family. 1 Ves. 160; 2 Bro. C. C. 231; 1 Beav. 202; 1 Cox, 179.

The management and disposition of the estates of infants, which I have thus referred to, and briefly stated, with the authorities, are among the mass of powers upon this subject which belong to the original and inherent jurisdiction of the Court of Chancery. They relate to their personal, and the income of their real, estate, the court having no inherent power to direct a sale of the latter for their maintenance or education; that power rests with the Legislature. It will be seen, therefore, that the only additional authority conferred upon the

as commissioner, or chancellor? Certainly, he could not doubt as to the intent or objects of the acts in this respect. It was a fund to be brought into the court, and the children were to become wards of the court, to be cherished, and protected by its powers.

In addition to the judgment of Chancellor Kent himself, we have also the judgments of the two highest courts in New York, in the case of Clarke v. Van Surlay, 15 Wend. 436, and Cochran v. The Same, 20 Wend. 365, S. C.

That was a suit involving the same title, brought by one of the heirs of Thomas B. Clarke, and depending upon the same evidence. It was first decided in the Supreme Court of that State in 1836, and in the Court for the Correction of Errors in 1838.

It was determined by both courts, that the title of the purchaser was valid, on the ground that he held under a judicial sale directed by the Chancellor in the exercise of his general jurisdiction; and that, having jurisdiction of the subject matters, if any error was committed, either in his construction of the acts of the Legislature or in the application of the funds, it was not inquirable into in a court of law. The order was conclusive, till set aside, upon all the parties.

No member of either court that expressed air opinion entertained a doubt about the nature of the jurisdiction. The judgment *had [*558

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