delivered the following opinion i-—

The bill in this cause states that Daniel Geroe, by his lasé,' will and testament, gave the remainder of his real estate to his three children ; Peggy, the wife of Cornelius Winter, the complainant ; Caty, the wife of William Stagg, and Benjamin Ge-roe, in fee simple, to be divided or sold as two out of the three could agree, and appointed Stagg and Geroe the executors of his will. It charges that Stagg and Geroe, as executors of the said estate, and as devisees under his will, sold and conveyed the real estate so devised; that the said sale was fraudulent in fact, being made at an under price by the contrivance of the *656respondents; and that it was fraudulent in law, being made to a third person as the agent of the respondents and for their benefit, in violation of the rule of law that no executor or trustee can directly or indirectly become a purchaser at a sale made by himself.

In the absence of all proof of actual fraud, the case made by the bill, and attempted to be sustained by the evidence, is, that the sale and conveyance having been made by the respondents as trustees or executors^ indirectly to themselves, is therefore fraudulent in law and void.

In order to sustain the bill, the court must be satisfied that the appellants, as trustees of Winter and wife, or as executors of the will of Benjamin Geroe, sold and conveyed to themselves directly or indirectly the title to Winter’s share of the real estate.

But I am of opinion that the appellants had no power whatever to sell the share of Winter, either as executors or as devisees.

There is no pretence of any express power vested in the executors to sell the real estate; nor can any such power bé implied. The sale was not made for the purpose of settling the testator’s estate, for the payment of debts or legacies, or for any purpose which the executors as such were authorized to effect. On the contrary, the real estate was devised by the- testator to his three children in fee simple, to be divided between them or sold as a majority of them could agree. Under this devise there can surely be no power raised by implication in the executors, either to sell or to divide the real estate.

Neither was any power conferred upon any two of the devisees to sell the share of the third, or to divide the land at their pleasure; there was neither a power nor a trust vested in them for this purpose. All must unite in making the sale or in effecting the partition, or resort for this purpose must be had to some judicial tribunal.

The deed, therefore, as to the share of the complainants, Winter and wife, in the real estate sold, was an utter nullity—no title did or by possibility could pass by it. The title of the complainants was in them after the sale and conveyance by Geroe and Stagg as completely as before. It remained unimpaired and unaffected by the conveyance. I cannot conceive, there*657fore, how the court can decree the sale fraudulent, or decree in favor of the complainant, upon the ground charged in the hill. On the other hand, if the court should, upon the merits of the case, decree against the complainants, holding that the sale was not fraudulent, I see nothing that would prevent the complainants from bringing an ejectment and recovering possession of the premises; there is nothing upon the face of the bill or proceedings in this case to-estop them from such course.

inasmuch, therefore, as this sale and conveyance was- not made by virtue of any power vested in the appellants, either as trustees or as executors—as consequently no fraud in law is established in the making of the sale—as no other ground of relief is stated in the complainants’ bill—as the pretended sale and conveyance against which relief is sought is absolutely null and void; and as the complainants have full, adequate and complete-relief at law', I am of opinion that the decree of the chancellor should be reversed, and that the complainants’ bill should be dismissed, but without costs.

I have arrived at this conclusion with much relucíanse. The ground upon which I place my decision seems not to have been adverted to before the chancellor; and although suggested, it was not discussed in this court. But entertaining, as 1 do, a clear conviction of the legal principles which govern the case, and believing that a final decision of the cause upon grounds not charged in the bill, is forbidden alike by sound principle and the settled’ practice of the court, I am constrained to adopt the course which I have indicated. I feel the less reluctance in doing so, as the decision now made, in substance, accords with the decree of the chancellor, is a decision of the matter in controversy, and will lead, it is hoped, to an immediate adjustment between the parties.

Neyxus, Whitehead and Carpenter, Justices, and Porter, ScHENCir, Speer and Robertson, Judges, concurred in this opinion. Randolph, Justice, and-Spencer, Judge, voted for affirming the decree. Decree reversed.

Note.—The point decided by this court was not presented to the. court below ; both parties having submitted the question of the validity of the sale on the assumption that the executors had power to soli. The appeal was froit:the decree of the court below declaring, tho ¿ale invalid.