#### DOE on dem. GEORGE SPRUILL et al. vs. JOSHUA DAVENPORT.

A sale of land by a guardian, under an order of a County Court, which was made without ascertaining that there were debts against the ward, which made the sale necessary, and which did not designate with certainty the land intended to bo sold, is void, and no title passes.

Action of ejectment, tried before bis Honor Judge Dick, at tbe Fall Term, 1854, of Washington Superior Court, on the following

CASE AGREED.

Aaron Spruill died seised in fee of tbe land described in the declaration, leaving seven children, bis heirs-at-law, upon whom tbe lands descended, and two of whom are tbe plaintiff’s lessors. The defendant was in possession at tbe service of tbe declaration.

*43The defendant claims title as follows: At February Term, 1833, of tire County Court of Washington, Alexander H. Davenport, who had been appointed guardian to the lessors of the plaintiff, who were infants, filed a petition in writing to the said court, of which the following is a copy: “The petition of Alexander IT. Davenport, guardian to Zepeniah, Henry, Eunice, Evan Horace, Andrew Burton, George, and Nancy Spruill, infant heirs of Aaron Spruill, dec’d., represents to your worships that there are claims against his said wards to the amount of $100, or thereabouts, and that they have no personal property liable to the said claims, but are seised of about 600 or TOO acres of land liable thereto. Your petitioner therefore prays your worships that you will, agreeable to law in such cases made and provided, grant him an order to sell one hundred acres of said land, adjoining the lands of Elias Oliver’s heirs, and your petitioner, and others, it being the east part of said tract of 600 or TOO acres, more or less, sufficient to satisfy the claims against his said wards.”

At February Term, 1833, this entry was made : “Prayer of the petition granted; sale to take place at Cool Spring; the guardian giving notice at three public places and court house door, and take bond and security, at a credit of six months.” The guardian, on 2Tth of March, 1833, sold the land in question to Jos. W. Tarkington, for $161,66, at public sale, and executed to him a deed. At May Term of the County Court, the cause was continued. At August Term, 1833, is this entry, “Report made and confirmed.” Tarkington afterwards conveyed the premises to Alexander TI. Davenport, the guardian, under whom the defendant claims as heir-at-law.

There were outstanding, at the filing of the petition, against R. B. Davis, the administrator of Aaron Spruill, a judgment in favor of W, A. Dickson for $99,88, with interest from 26th of September, 1832, on which $52 had been paid by the administrator on 16th of November, 1832, also, a judgment in favor of John Peck for $12,20, with interest from January, 1826, amounting to $1T,32, also, a judgment *44In favor of W. C. Warren for $9 and costs. There were no assets, to pay these judgments, in the hands of the administrator, which was found by a jury at February Term, 1833, and a sci. fa. ordered against the heirs-at-law to May Term, 1833.

It is agreed that if the sale of the guardian passed the title to the purchaser, the plaintiff shall be nonsuited; if not, he shall recover his term and sixpence damages.

His Honor, being of opinion with the defendant, gave judgment accordingly, from which the plaintiffs appealed to the Supreme Court.

Winston, Jr., and Smith, for the plaintiff.

Heath and Hines, for defendant.

Battle, J.

We cannot distinguish this case from that of Leary v. Fletcher, 1 Ire. Rep. 259. The principle there decided, and which was sanctioned subsequently in the case of Ducket v. Simmer, 11 Ire. Rep. 431, was, that the 11th section of 63d chapter of the Nevised Statutes, taken from the Act of 1189, (ch. 311, sec. 5, of the Nevised Code of 1820,) “does not confer on the court a general power to make orders of sale, but confers a power limited in its terms, and restricted in its objects, to make orders to sell designated parts of an orphan’s estate, to pay ascertained debts against such an estate.” “It is obvious,” say the court, “that the Legislature intended, and therefore we hold that the Legislature required, that the judgment of the court should be exercised in deciding whether there were any debt or demand against the estate of the ward, to render a sale of his property expedient; and if so, then in selecting the part or parts of his property, which could be disposed of with least injury to the ward.” It is manifest, that, in the case before us, the county court no more exercised its judgment in ascertaining that there were debts against the estate of the ward, than was done in Leary v. Fletcher. Nor is the land ordered to be sold, designated with sufficient certainty; one hundred acres more or less, *45without any definite boundaries, is a description giving a greater latitude to tbe guardian than was intended by tbe Legislature.

Upon tlie whole, then, we may say, that tbe order, if valid, “authorises tbe guardian to sell any part be pleases of tbe ward’s land, which be may deem necessary for tbe payment of debts against tbe father’s estate. Tbe court, instead of exercising its own discretion on tbe subjects, whereon tbe Legislature required it to act, has undertaken to delegate that discretion to the guardian. This cannot legally be done; deleg ai/us non potest delegare.”

Tbe judgment below must be reversed, and according to tbe case agreed, a judgment must be entered in favor of tbe plaintiff for sixpence damages.

Per Curiam,

Judgment reversed.