#### JOHN M. INGRAM vs. MARGARET G. SLOAN

On a covenant by the defendant to pay the plaintiff$524, provided the title she1 acquired to her deceased husband’s land by the sale of a sheriff under an-execution against the heirs of her husband, in opposition to a sale made by the executor under a power in the will to sell for the benefit of volunteers, it was held, that thfe plaintiff was entitled to recover, the creditors' having-a right to sell the land in-preference to the right of the executor vuk der the will.

Appeal from the Superior Court of Law of Anson county, at the Spring Term, 1845, his Honor Judge'Pearson presiding.

This was an action of covenant on the following instrument executed'by the defendant and delivered'to the plaintiff, to wit:

“ I agree to pay John M. Ingram five hundred and twenty-four dollars, being the amount paid by the said Ingram as the security of Robert Ingram, deceased, as constable, on condition the sale of the house and lots in the town of Charlotte,, made this day and purchased by me, proves, on a controversy with the purchaser at a sale made formerly by the executors, to be good; and on condition, that the executor has no right in future to make a sale, so as to defeat the purchase made this day by me, at sheriff’s sale; the above sum to be paid as soon as the question settled.”

*566The plea, “covenants not broken.” It appeared that Robert Sloan, the late husband of the defendant, made his Will, and appointed John Sloan his executor. He proved the Will and qualified. The testator, by his said Will, gave his executor a naked power, to sell three lots of land, lying in Charlotte, and then to divide the purchase money among his wife and children, The executor, by virtue of his power, sold the three lots to Hiram Sloan. Afterwards, to wit, on the 27th day of November, in the year 1833, the Sheriff sold the said lots, and executed to the defendant, as the highest bidder, the instrument in nature of a deed, mentioned in the case.— in which is recited, “ that an execution for $ 225, issued from Mecklenburg County Court, against the heirs at law of Robert Sloan, which debt was recovered by Durham Combs and others against the said heirs, as on record may appear; that he (the Sheriff) sold the said three lots on the 25th day of January 1832, at which time Margaret G. Sloan, became the best bidder, &e.” On the 28th day of January 1833, the defendant executed to the plaintiff the covenant now sued on ; and this action was brought on the 28th day of July 1840; and the defendant has been in possession of the lots, holding them adversely to the vendee of the executor, ever since her purchase at the Sheriff’s sale. On the trial, the defendant objected to a recovery against her, first, because the plaintiff did not produce the judgment and execution against the heirs of Robert Sloan, under which she purchased the land; and to support the Sheriff’s sale to her. The Judge was of opinion, that the defendantin making her covenant, took for granted, that all the proceedings to support the Sheriff’s sale were regular; and that she conditioned and restricted herself, only to a defect in her own title by reason of the sale to Hiram Sloan, then already made by the executor, or which he should thereafter make to any one, under the power in the Will. — • And if a defect existed, she should shew it. It was also in evidence that the defendant had had, under her deed from the Sheriff, seven years actual possession, adverse to the alienee of the executor.

*567The jury, under the charge of the Court, found a for the plaintiff, and, judgment being rendered accordingly, the defendant appealed to the Supreme Court.

Strange for the plaintiff.

Three objections were taken by appellant:

1. Because plaintiff had not shewn a judgment and execution against the heirs at law of Sloan, to support the sale of their lands by the sheriff. The judge answers that objection by saying, that the covenant takes for granted that the proceeding to support the sheriff’s sale was regular, by restricting itself to a defect in the title by reason of the sale which the executor had then made or should afterwards make. And if the defendant be at liberty to avail herself of any defect of title by reason of any irregularity in the proceedings, it was for her to shew the proceedings and point it out.

To which, I think, may be added, that the defendants undertaking was to pay to the plaintiffa sum of money with certain specified exceptions, and those exceptions being out of the way, the obligation is single. An irregularity in the proceedings under which the sheriff sold to her is not one of those exceptions.

2d. It is objected, that the sale of the executor under the power of the will had passed title to Hiram Sloan, before the sale by the sheriff. To which the judge answers: The title did not pass to Hiram Sloan, for the widow’s dissent made it impossible to execute the power ; and the sale by the executor being after the judgment, execution, and levy, and the whole relating back at least to the teste of the execution, the title was divested out of the heirs before the sale by the executor, and therefore did not pass to feed the use raised by the exercise of the power.^To this I add nothing, but merely cite in support of its correctness, Pickett v. Pickett, 3 Dev. 6. Ba-zoin v. Lenoir, et al. 1 Dev. Eq. 225.

3rd. It is objected in answer to the statute of limitations perfecting the defendant’s estate, that as the executor conveyed to Hiram Sloan subject to the defendant’s right of dower, that *568her possession was not adverse, and consequently the statute did not help her title. To this the judge makes no reply, thinking the case with the plaintiff upon the other grounds. Qoncurrjng with the judge in that opinion, I would, however, remark, that there is no privity between the widow and Hiram Sloan, or those under whom he claims, to wit, the executors. Her claim of dower is adverse to theirs, being founded not upon the will, but upon a dissent from it. And in Pickett v. Pickett, before cited, it is held that a possession adverse to the estate over which the power exists, will, under the statute of limitations, bar the power. But in truth, the widow does not claim by way of dower, her proceedings in dower never were consummated. Her claim is under the purchase from the sheriff, and this by her acknowledgment under seal, on which this action is brought, she is estopped to deny. She establishes beyond dispute that claim as adverse both to the power and the estate over, which it claims to exist. It is in fact adverse to Hiram Sloan, to the heirs at law of John Sloan and to his executors, and this adverse possession, having continued more than seven years, bars them, and of course secures her against all that the exceptions in her covenant were intended to secure her against.

Winston for the defendant.

Daniel, J.

’We think, that the opinion of his Honor, was correct; for the defendant conditioned against nothing else in •the covenant, but the acts of the executor, under the power in the "Will. And, as the power, given by the testator to his executor, was to sell and convert the lots into money for the benefit of his wife and children, such a sale for mere volunteers was -void, by force of the statute of fraudulent devises, as to the creditors of the testator, under whom the defendant claimed. The deed, which the Sheriff gave her, shortly after the purchase at his sale, being defective, does not prevent her from applying now for a good deed from the old Sheriff if alive, or the present Sheriff, in case the old Sheriff be dead, *569or is out of the State. Act of 1799, ch. 538. We think, that the judgment must be affirmed.

Per Curiam, Judgment affirmed.