Posey v. Conaway , 10 Ala. 811 ( 1846 )

GOLDTH WAITE, J.

We coincide very fully in the opinion of the chancellor, that the facts disclosed by this bill, are not of the character to warrant the interference of a court of equity. As the case appears, it is, whether fraudulent or otherwise, the unauthorized sale by the administrators, with the will annexed, of the lands of the testator. Even if a deed had passed between the vendors and purchaser, the title of the heirs to the land would be unaffected, as the power given by the will to sell the land, does not pass to the administrators, with the will annexed. [Lucas v. Price, 4 Ala. Rep. 679.] In this aspect of the case, a deed from the administrators would not, according to the later adjudications create such a cloud on the rightful title as will warrant a court of equity to set it aside. When the illegality of the agreement, or other inducement, appears on the face of it, so that its nullity can admit of no doubt, there is not the same reason, as there is when the agreement, &c. is apparently valid, for the interference of a court of equity to direct it to be delivered up or cancelled, and it is now fully established that those courts will not interpose to order a cancellation or delivery up of such instruments. [Story’s Eq. § 700, a, and cases there cited.] As it is thus shown the interference of equity would not be proper, even if this sale had been consummated by deed, it is quite clear it would be so to set aside a sale which is simply void. Decree affirmed.