widow; and in that case a division of the proceeds of sale. If the word then, is not to be considered as denoting the precise time of sale, yet the testator must have contemplated, that the land must have remained unsold at the time of the marriage; or it could not be sold on that event. Nothing, therefore, in my opinion, is to be perceived on the face of the will, denoting an intention in the testator, that his executors should sell the land under the circumstances in which the sale was made, or in any other event than the marriage of his widow. I take no notice of the argument of the counsel for the defendant, relative to supplying words supposed to be omitted by the testator, in order to make out his meaning; for these are only called in, in aid of the plain and manifest intention of the testator. Under the view I have of the subject, the doctrine is wholly inapplicable to the case in question.

The second point under this head, is attended with but little more difficulty than the first. It is true that a class of equity cases have established as a rule, that a devise of the remainder of the personal and real estate, after payment of debts, funeral charges, and legacies, or these being first paid, creates a charge on the real estate for the payment of debts, &c. But it does not appear satisfactory to my mind, that the executors in all these cases, have an authority to sell the land. In some cases, the court of chancery have directed the heir at law to execute a title; and in others have decreed a sale. The farthest that I recollect the doctrine to have been carried on this subject, in a court of common law, is a case in Dyer 371, where the testator having [*] devised all his estate to a near relation, except a particular piece of land, which he appointed to pay his debts. The executor sold the land to pay debts, and held well. This is the same in substance, as though the testator had directed that this piece of land be sold to pay his debts. In this case, it being the duty of the executor to pay the debts of his testator, it is presumed, that the testator intended that he should sell the land marked out by him, for the payment of his debts. But I apprehend, there is a plain distinction between a charge on land for the payment of debts and legacies, arising by implication and construction, and a positive direction that the land shall be sold, or what is the same thing, appointed for that purpose. In the latter, the intention of the testator, that the land shall be sold, is manifest. But the former is at most, nothing more than an indirect collateral incumbrance; a lien arising by construction; a mere charge on the real fund, which the devisee or heir at law, ought to have an opportunity of removing.

But supposing the adjudications on this subject went further, and declared that whenever by construction or implication, a charge is found to be made on land for the payment of debts or legacies, that the executors have an authority to sell the land to satisfy the charge; that is, to pay the debts or legacies. It is only in cases requiring it, that it is to There be done; and not wantonly, and without cause. ought to be subsisting debts or legacies unsatisfied, after exhausting the personal assets. It is no answer to this, that the purchaser is not to look to the application of the purchase money; he is to look to the authority of the vender to sell-caveat emptor. There is no authority on the face of the will, to sell. If then, the executor hath an authority to sell, it is bottomed on the simple fact of a deficiency of assets; of subsisting debts or legacies, after exhausting the personal assets. And it appears to me, that the purchaser is bound to look to that as part of his title; otherwise, a door would be open to fraud and collusion, to the ruin of infant heirs and devisees. Let me ask what are the facts in this case? The purchaser is no stranger, but the [*] husband of one of the two remaining devisees under the will. The sale is not even pretended to be made for the payment of debts or legacies; the ancestor of the lessors of the plaintiff, was the only legatee. It was absurd to sell his own land, to pay him a small legacy, and thereby ruin him out of kindness. The pretence for the sale was, to divide the estate; why not divide the land? The purchaser put one half of the purchase money immediately into his own pocket, and thereby turned the real estate of his wife into personal, by which he increased his own interest and diminished the interest of his wife, or rather changed the title of the land from his wife to himself. The purchaser and the executors also undertake to settle a question, which might arise as to the disposition of the portion devised to the wife of the testator-whether it was to be considered as a lapsed legacy, and go to the heir at law, or a cross-remainder, and divided in equal parts among the survivors? It was said at the argument, and I believe not contradicted, that one half of the purchase money being in depreciated paper, was tendered to the ancestor of the lessors of the plaintiff, which he refused to receive; if so, the justice of the case is wholly on the side of the plaintiff. I am, on the whole of the facts and circumstances which present themselves under this head, from the best consideration which I have been able to give the subject, of opinion, that the sale by the executors is invalid, and that the deed ought to be deemed ineffectual to pass the title, and put out of the case.—

Therefore, that the charge given to the jury by my brother the chief justice, on this head, was wrong.

If, however, the counsel for the defendant are right in the third point which was raised by them, to wit, the conclusiveness of the submission and award of the arbitrators, still, a new trial ought not to be directed. Not having seen the submission and award, it is difficult to form a precise opinion on its effect and operation in the case under consideration; from what was understood at the argument, the submission was general, embracing all matters in difference between the parties; that the [*] arbitrators awarded the land in question to Vantine, under whom the defendant claims title; but that the father of the lessors of the plaintiff, and the lessors themselves, kept possession of the premises until two or three years back, notwithstanding the sale by the executors, and the submission and award of the arbitrators; but that law suits had subsisted between the parties part of the time. All the authorities, as well ancient as modern, prove in the most unequivocal language, that an award cannot operate as a conveyance of land. This principle is not only supported by the plainest principles of the common law, bút conclusively established by the statute for the prevention of frauds and perjuries. This point bath been argued with great learning and ingenuity by the counsel on both sides; and is, therefore, from that circumstance, if no other, entitled to some consideration. One of the counsel for the defendant, assimilated arbitrators to a court-and then urged the general doctrine as to the conclusive nature of the judgments, decrees, or sentences of a Court, having competent jurisdiction of the subject matter. I confess that I do not perceive the analogy; however, if he was ever so correct, yet, I apprehend, there was a want of jurisdiction. Arbitrators may award, if the submission authorizes it, that one party shall execute conveyances to the other. (a) But this does not pass a title; and if the party refuses to convey. the remedy is on the bond. But in case the arbitrators should award the land, it would be an act exceeding their jurisdiction, and void of itself for that cause. 2 Bacon 202, 1 Ld. Ray. 115. It, therefore, could not be the decree or judgment of a court having competent jurisdiction; besides, a void judgment, is no judgment. If, in this case, the arbitrators awarded the land, the award is void. If they awarded, that the father of the lessors of the plaintiff, should convey by deed or in any other way, the remedy is on the arbitration bond, or agreement to submit; but doth not vest a title

(a) Vid. 1 South, 132.-ED.

in the defendant, or Vantine, under whom he claims. It is, however, further contended by the counsel for the defendant, that the lessors [*] of the plaintiff, cannot recover the land against their ancestor's covenant or agreement to abide the award of arbitrators. In support of this proposition, was cited Right v. Proctor, 4 Bur. 2208. In looking into this case, I find that it is not a case of arbitration, and that both Lord Mansfield and Mr. Justice Yates, who are the only judges who gave a reason for their opinion, treat the covenant under which the defence was set up, as a lease. The instrument itself supports the idea, as it contains a covenant, that on the death of the lessor of the plaintiff, his representative shall renew the lease. That a man shall not recover in ejectment against his own lease, is no new doctrine. On this head, the case of Den, on the demise of Reeves v. Hyllier, tried before me at the Burlington Circuit, November, 1804, was cited. The case was this: a prior ejectment had been brought by the father of the lessors of the plaintiff, against the defendant, for the premises in question. This was submitted to referees, by rule of Court. The referees reported in favor of the plaintiff, and fixed the line, it being a case of boundary. On the coming in of the report, the defendant moved to set it aside. This motion was lost, and judgment obtained in this Court. The cause was carried up to the Court of Appeals, and there the judgment of this Court was affirmed. The defendant refused to give up the premises, for the recovery of which, the action was brought. The plaintiff offered the record of this judgment, in evidence. This was objected to, by the counsel for the defendant, and after argument I admitted it to be read; and I have since understood, that the chief justice did the same in a former trial, of the same cause. But this case no way resembles the one under consideration; here was an actual adjudication on the very point in controversy, by a Court having competent jurisdiction of the subject matter, affirmed by the highest tribunal in the State. It was certainly competent evidence, and that was all that was decided.

Under this head, the Court is reminded, that this is an equitable action; and that the Court will not aid the [*] plaintiff against the justice and equity of the case. I am not convinced that the justice and equity of the case is with the defendant; but if it is, and the principles of the common law will not protect him, he must seek relief from a court of equity. I apprehend, that a mistaken notion is gaining ground respecting the equitable qualities of an ejectment. The legal fictions giving form to the action of ejectment, are under the equitable control of the Court, and moulded by it [*49] [*50]

in such manner as to bring the question of title fairly before the Court and jury, stripped of the entangling niceties of ancient pleadings; and to avoid the endless delays attending them. So far as these fictions have any operation, they are under the equitable power of the Court, whose duty it is to prevent their doing an evil, and to cause them to do good; hence the idea of an equitable power in the Courts of law, peculiar to the action of ejectment. But I never understood that legal titles were to bend to the equitable interposition of the Court, in the action of ejectment, more than any other action, wherein the title to real estate, is tried. It is true, that courts of law, have, in some cases, taken notice of trusts; they will not permit a stranger and wrong doer, to defend himself by setting up a mere trust estate, standing out in the hands of the trustee of the lessor of the plaintiff. In this Court, we would not suffer a satisfied mortgage to be set up by a stranger against the mortgagor. But these are plain unequivocal cases, involving not a shadow of right; they do not grow out of the equitable notion of the action of ejectment, but arise from the liberal policy and sound exercise of discretion in Courts of common law that will not suffer the pure streams of justice to be dammed up, or even impeded by merc forms and shadows.

On the whole, I am of opinion, that a new trial ought to be directed.

BY THE COURT.-Let the verdict be set aside, and a new trial had.

[*] [The Reporter is informed, by one of the counsel in the cause, that this cause was noticed for trial again, at the last Middlesex circuit, in December, 1806; and being called on in its course, the Chief Justice, who held that circuit, was challenged by the defendant, as incompetent to sit in judgment on the trial of the cause; for that he had formed and delivered an opinion, upon a matter in question, in said cause: that the plaintiff demurred to this challenge; and after argument, the Chief Justice decided that he was rendered incompetent to sit on the trial of the cause, by the supplement to an act, entitled an act, the better to promote the impartial administration of justice, and that the cause went off on that ground. This supplement was passed the 6th of March, 1806, (a) the first section of which enacts as follows: That no judge of any court of record, in this state, who shall have formed and delivered his opinion, upon any matter in question, in any cause or controversy depending in such court, shall sit in judgment, upon the trial or argument of such cause or any point in controversy thereon, whether such judge, at the time of delivering such opinion, was attorney on record, or counsel for either of the parties in such cause or not.-Provided always, any matter or thing herein contained, shall not be construed to prevent any judge from sitting on the trial of such cause, merely because he may have given his opinion in any other cause, where the same matter in controversy shall have come in question.

(a) Repealed by act of 24th Feb. 1820. Rev. 689.