Worthy et al. es. Johnson et al.

trust to set aside the sale, whether bona fide made or not; and that it is voidable only and not absolutely void. Campbell vs. Walker, 5 Ves. 678, 680. 13 Ves. 601. Ex parte Lacey, 6 Ves. 625. Ex parte Bennett, 10 Ves. 381, 385, 386. Morse vs. Royal, 12 Ves. 355. Whitcomb rs. Minchon, 5 Mad. Rep. 91. Bell's Supplement, pp. 11, 12. The heirs should make their election within a reasonable time, otherwise they would be precluded.. It is contended that the defendants, or at least that portion of them who bid off property, directly, at the sale, themselves, are -protected in their title, because, as it is alleged, they are bona fide purchasers, even admitting the sale to have been contrary to law..

[9.] Two objections are taken to the legality of the sale. One, that the order of the Court of Ordinary does not show, upon its face, that the Court had jurisdiction; and the other, that the property was not advertised for sixty days, as required by the Statute. The Act of 1829, provides that “It shall be lawful for the Inferior Courts of the several Counties in this State, when sitting for ordinary purposes, to order the sale of any slave or slaves, belonging to the estate of any testator, or intestate, or ward, on the application of the executor or executors, administrator, administrators or administratrix, or guardian or guardians, which shall be at public auction, and on the first Tuesday in the month, between the usual hours of sale, at the place of public sales in the County where the letters testamentary of administration or guardianship may have been granted, giving sixty days' notice thereof in one of the gazettes of the State, and at the door of the court house of the County where such sales are to be held, when it is made fully and plainly to appear, that the same will be for the benefit of the heirs and creditors of such estate, or of the ward of such guardian or guardians: Provided, that a notice of such application for leave to sell, be first made known, in one of the public gazettes of this State, at least four months before any order absolute shall be made thereupon." Prince, 284.

The order passed by the Court of Ordinary, authorizing the sale, is in these words: "Upon the application of Benjamin P. Robinson and Jane Worthy, executor and executrix of Thomas Worthy, deceased, for leave to sell the real estate and all the negroes of said Thomas Worthy, late of this County, deceased, and having published the same in terms of the law, it is ordered by

Worthy et al. vs. Johnson et al.

the Court, that they proceed to sell the same in terms of the law in such case made and provided."

The bill charges, that the sale was not advertised for sixty days, nor at the court house door, as required by law and the order of the Court.

In Clements vs. Henderson, (4. Ga. Rep. 148,) this Court held, that" In order to divest the title of the heirs to the lands of their deceased intestate ancestor, by an administrator's sale, it must be shown that the requisitions of the Statute, authorizing such sale, had been complied with ;" and farther, that "after the authority of the Court of Ordinary to make the sale has been shown, the recitals in the deed made by the administrator to the purchaser, of the acts required to be done by him, under the Statute, will be considered as prima facie evidence of the truth of such acts having been done, until the contrary is shown."

-It is not necessary, at this time, to express any opinion as to the validity of the order under which this sale was made. One of my brethren is very clear, that this order is insufficient; that our Courts of Ordinary, like all other Probate Courts, both in England and in this country, are Courts of limited jurisdiction, and that if no warrant is found upon the face of the proceedings of the Court, that then their acts must be taken to be coram non judice; that the fact does not appear in this order that it was made fully and plainly to appear, that the contemplated sale was for the benefit of the estate, and that, consequently, the Court of Ordinary had no more cognizance of the question of sale, than a Justice of the Peace had.

On the other hand, and without intending to confound the distinction between Courts of general and special jurisdiction, some of us think, that Courts should give a liberal construction to Statutes authorizing the sale of real estate and slaves, in Georgia, m by executors and administrators; that publie policy requires that all reasonable presumptions should be made in support of such sales, in favor of bona fide purchasers, especially respecting matters in pais. The number of titles thus derived, and the too frequent inaccuracy of Clerks and others concerned, in effecting these sales, renders this absolutely necessary; that if a different rule prevailed, purchasers would be timid, and estates consequently sold at a diminished value, to the prejudice of heirs and creditors; moreover, that mere paper work of this sort will afford

Worthy et al. vs. Johnson et al.

no guaranty for the security of estates, it being a notorious fact, that the fraudulent and selfish are the very Pharisees of the law, as to all formal observances, and that widows and orphans, as well as creditors, must look alone for protection to the vigilance of our Courts of Ordinary.

I allude to this point at this time, simply for the purpose of calling attention to it, and of suggesting to all concerned, the importance of reciting, in all orders for the sale of property, the facts which, under the law, authorize the Court to interfere; and, farther, that as a part of the proceeding, it may be of vital consequence to send up a copy of the petition of the party, upon which the action of the Court is predicated, as this may be sufficient, under any view of the law, to confer jurisdiction.

[10.] It is conceded, on all hands, that executors and administrators, in making sales of property, must comply with the statutory provisions authorizing them, in every essential direction; otherwise, the interest of heirs and creditors will not be precluded. Monroe vs. James, 4 Mun. 200. Knox et al. vs. Jenks, 7 Mass. R. 492. Wiley & Gayle vs. White & Lester, 3 S. & P. 358.

[11.] And while this rule may be somewhat relaxed in favor of innocent purchasers, (6 Porter, 219, 262. 1 Ala. R. N. S. 708. 9 Ib. 285,) yet it will certainly operate with full force against executors and administrators, who purchase, at their own sales, as well as against those who have subsequently derived title, through a judicial sale, from them, as execution debtors.

[12.] The Statute of Limitations has been relied on in the discussion, and this objection may be taken, no doubt, as a defence by demurrer, if it appear on the the face of the bill. At Common Law, the plaintiff replies to the plea of the Statute, if he would take himself out of it; but in Equity, if he be within any exception of the Statute, it is incumbent on him to state it in his bill; but here, the pleader has intentionally or otherwise, omitted to state the time when the negroes in controversy were sold by the executors, when the Statute would begin to run in favor of the defendants, unless prevented by some special reason. Under these circumstances, it can only be taken advantage of, by plea, Some of the matters of which I have treated, might have been avoided. Having, however, determined to overrule the demurrer, and to send this bill back, to be pleaded to or answered, I

Cameron et al. vs. Ward.

thought it best to advert to them now, as they would be necessarily involved in a trial upon the merits. Judgment reversed.

No. 41.-BENJAMIN H. CAMERON et. al. plaintiffs in error, vs. STEPHEN WARD, defendant.

[1] Where C and J obtained the legal title to land, as security for a small sum advanced to W, under peculiar circumstances-the sum advanced not being one-fourth the alleged value of the land-promising to re-convey the same to W, on the re-payment of the sum advanced with interest, but who fraudulently conveyed the land to a bona fide purchaser: Held, on a demurrer to the bill, insisting on the Statute of Frauds, as a bar, that the demurrer should be overruled that the Statute was intended to prevent fraud, not to protect it; and that in such cases, a Court of Equity would take hold of the conscience of the defendants, and hold them as trustees, for the benefit of the party defrauded.

Bill, &c, in Troup. Decision by Judge HILL, at November Adjourned Term, 1849.

. This bill alleges, that in 1835, Stephen Ward purchased of one Thomas Walker, lot No. 2, in 11th District of Troup, for $750; that Walker had bought of one Christina Thomas, the drawer, in 1832; Ward went into immediate possession, and so continued until the latter part of 1847; that in 1835, he wrote to the Surveyor General to know if the grant had issued, and was informed that it did issue before the purchase by Walker; that in 1847, he learned that said lot had been granted, under the then late law, to Thomas Whitaker, and sold by him to Pleasant Compton; that in November, 1847, he went to Milledgeville, and that Compton, under the peculiar circumstances, agreed to sell him the lot for $200; that the defendants below, Cameron and Johnson, being there, as members of the Legislature, and his immediate representatives, in whom he had great confidence, advised him to pay

Cameron et al. vs. Ward.

the $200, and thus keep his homestead; that upon his replying, that he had not the money with him, they agreed to advance him the $200, and for their security, were to take the title in their own names, which they agreed to make to him on their return home, upon his refunding the money with interest; that having a little more money with him than sufficient to pay his expenses home, he handed them $20 towards the land; that about 25th December thereafter, about the time he expected them home, he procured the money, and sent it by a friend to Cameron's house, and learned that he had not then returned; that shortly after, he was taken sick, and about 1st February, 1848, he procured the money to be again carried to Cameron, who informed the messenger that Johnson had sold the land to one Wm. A. Spear; that the money was then tendered to Johnson, and a deed demanded, who declined making it, for the reasons named. The value of the land is alleged to be one thousand dollars. The bill prays that defendants below be decreed to pay the value of the land, $1000. This bill was demurred to

1st. Because it showed on its face, that complainant had as ample and adequate relief at Common Law, as in Equity..

2d. That there was no equity in the bill, and insisting on the Statute of Frauds.

The Court overruled the demurrer, and ordered defendants to answer, &c. To which ruling, defendants excepted, and thus the

case comes up.

B. H. HILL and STOKES, for plaintiff in error.

COLE, for defendant in error.

By the Court-WARNER, J. delivering the opinion.

[1.] The complainant alleges that he purchased the lot of land in controversy, in 1835, from Walker, for which he paid $750 00, went into the possession of it, and made valuable improvements, not doubting the grant from the State had issued; that in 1847, to his surprise, he learned that the lot was not granted at the time of his purchase from Walker, but had been granted to one Whitaker, under the late Act of the Legislature, who had sold it to Compton; that he visited Milledgeville during the session of the