1851. October Term. Ross's adm'r V. Reid & wife. the evidence submitted in its support; and having also maturely considered the cause shewn against the said motion, and the evidence relied on in support of that cause by John S. Caldwell, as committee administrator of the plaintiff, James Ross, who is now deceased, and whose said administrator appeared by counsel to shew cause as aforesaid; and upon such consideration, as well as upon consideration of the arguments of counsel, who were fully heard upon both sides, this court, being of opinion that the said Caldwell, as committee adminis trator as aforesaid, has not shewn good cause against the said motion, but that the said James Reid, surviving defendant as aforesaid, has shewn good cause in its support, thereupon doth grant the said motion of the said surviving defendant, James Reid, and doth order that the writ of error heretofore allowed in this case to the said James Ross, who is now deceased, be abated and dismissed, and that the said Caldwell, as committee administrator as aforesaid, be barred and precluded forever from suing out any writ of sci. fa., or other process to revive the same, or from, in any way whatsoever, farther prosecuting the said writ of error. And it is farther considered and adjudged by this court, that the said Caldwell, as committee administrator as aforesaid, out of any assets of the said James Ross deceased, in the said administrator's hands to be administered, do pay unto the said James Reid, surviving defendant as aforesaid, his costs by him about his motion in this behalf expended. Richmond. BRYAN V. STUMP, &c. (Absent Cabell, P.) November 17th. 1. A brother and sister, both of whom are married, own a tract of land jointly. In 1802 the brother and his wife and the sister and her husband unite in a deed of partition of the land, and from thence to the present time the land is held in severalty by the parties respectively and those claiming under them. The partition is valid and binding on the parties, though no certificate of the privy examination of the wives is annexed to the deed. 2. A trustee in a deed, the trusts of which have been satisfied, executes a power of attorney to a third person with authority to release the deed. The attorney executes a deed which commences in the name of the trustee by the attorney, but it is signed in the name of the attorney for the trustee; and it releases the land not to the grantor in the trust deed, but to a purchaser under him. HELD: The deed of trust is duly and regularly released. 3. QUERE: If the certificate of the privy examination of a feme covert, made under the act of 1792, which purports in the body of the certificate to be under the seals of the justices, but in fact no seals or scrolls are affixed to their names, is valid so as to bar the feme. 4. Whether or not such certificate be valid, it is at least so doubtful as to cast a cloud upon the title; and the husband being dead, and the interest of the feme in the land having been the fee, and her title not being barred by lapse of time, a sale of the land under a deed of trust should not be made. until the cloud is removed, though neither the feme during her life nor her heirs since have set up any claim to the land. In September 1843 Thomas Bryan filed his bill in the Circuit court of Hampshire county, to enjoin the sale of a tract of land under a deed of trust executed by himself to Isaac Baker, to secure a sum of money which he owed to Jacob Stump for the purchase money VOL. VIII.-16 1851. October Term. 1851 October Term. Bryan of the land. The grounds of the injunction as they appear upon the pleadings and proofs are as follows: Sometime previous to September 1802 Michael CreStump, &c. sap was the owner of a tract of two hundred and fifty acres of land in the county of Hampshire, which on his death descended to his two children, Thomas Cresap and Abigail, who married James Cresap. By deed of partition bearing date the 23d of September 1802, made between Thomas Cresap and Mary, his wife, and. James Cresap and Abigail, his wife, this tract of land was divided between them by metes and bounds; but there was no privy examination of either of the femes covert. The parties, however, took possession of the part of the land assigned to them, and held it without molestation. On the 27th of April 1814 James Cresap and Abigail, his wife, conveyed to James M. Cresap, with special warranty against themselves and all claiming under them, the land assigned and conveyed to them by the deed of September 1802. It appears that James Cresap and his wife lived in the State of Maryland, and a commission issued to three persons by name, who were described as justices of the peace for the county of Alleghany, in the State of Maryland, authorizing any two of them to take the privy examination of Abigail Cresap, and certify it under their seals to the County court of Hampshire. The certificate of the two who acted under this commission stated the fact of the privy examination properly; and it purported to be under their hands. and seals, but no seals or scrolls were affixed to their names; and they did not, nor were they required by the commission to certify that they were justices. On the death of James M. Cresap this land descended to his son, Luther M. Cresap, and he and his mother, Mary Cresap, united in a deed bearing date on the 29th of November 1834, by which they conveyed it to James Prather, in trust to secure a debt of 1100 dollars which they owed to John J. Jacob. They afterwards 1851. October Term. in 1835 sold the land to Jacob Stump, and conveyed it. to him by deed bearing date the 4th of April 1843; having previously, as early as 1835, paid off the debt to Jacob by the assignment to him of one of Stump's Stump, &c. bonds. In May 1842 an agreement was entered into between Stump and Thomas Bryan, by which Stump agreed to sell to Bryan this land for 7000 dollars; of which 3000 dollars was to be paid on the 1st of the next April, and the balance in two equal annual payments; and upon the receipt of the first payment Stump was to convey the land clear of all incumbrances; and Bryan was to execute his bonds for the deferred payments, and a deed of trust upon the land to secure them. Bryan paid a part of the first payment, and executed his bond for 1750 dollars, payable on the 1st of July 1843, and the other two bonds as provided for in the agreement. And on the 6th of April 1843 Stump and wife, by a deed which traced the title from the deed of September 1802, conveyed the land to Bryan; and they covenanted that they had an indefeasible estate in fee simple in the premises, and good right to convey, and they conveyed with general warranty. And on the same day Bryan conveyed the land to Isaac Baker in trust to secure the balance of the purchase money, with power to sell upon the failure to pay any one of the bonds. In July 1843 James Prather, then residing in Illinois, the trustee in the deed to secure the debt to Jacob, executed a power of attorney to William Donaldson, of Hampshire, by which, after reciting the conveyance to himself, and the several subsequent conveyances, he authorized Donaldson to execute for him and in his name a deed of release to the person legally entitled to receive the same. And accordingly Donaldson, on the 19th of July 1843, executed a deed which commenced in the name of James Prather, by William Donaldson, his attorney in fact, but was signed William Donaldson, Bryan V. 1851. October Term. Bryan V. Stump, &c. attorney in fact for James Prather; and the seal was attached to his name. He released and conveyed the land to the trustee Baker. Bryan having failed to pay the bond for 1750 dollars, which fell due the 1st of July 1843, the trustee advertised the land for sale; and Bryan applied for and obtained an injunction, relying upon the want of the certificate of the privy examination of the femes covert who executed the deed of partition in 1802; the insufficiency of the certificate accompanying the deed of 1814; and that the deed of trust to Prather was still outstanding, the conveyance by Donaldson not being, as he contended, valid to release it. The defendants answered the bill. It appeared from the proofs that James Cresap lived until about 1836, and he was survived by his wife Abigail, who lived until 1843; and that they and those claiming under them had held quiet and undisputed possession of the land from 1802 down to the hearing of the cause. It further appeared that their children were the heirs of both of them, and that they derived from their father an estate of more than three times the value of the land sold and conveyed by Stump to Bryan. In April 1844 the court dissolved the injunction; and the plaintiff applied for and obtained an appeal to this court. Robinson, for the appellant, relied, 1st. On the defect in the certificate of the privy examination of Mrs. Abigail Cresap, attached to the deed of 27th April 1814, which he insisted should have been under the seals of the justices. For which he referred to the act, Old Rev. Code, edi. of 1814, p. 221; Tod v. Baylor, 4 Leigh 498; Hairston v. Randolph, 12 Leigh 445. 2d. He insisted that the warranty of James Cresap was not such a security as a court of equity would |