(after stating the case.) The controversy which has grown out of the action taken to enforce the mortgage security, has been essentially between Rogers the purchaser and the defendant, in the application for the writ of assistance. The record, without assigning any specific-error, contains a memorandum with the words Appeal also by the phi in i iff ” from the judgment of the Court, and we can only entertain his complaint of the concluding clause, that taxes him with the costs specified therein.
In this we find no error, for it was the plaintiff’s own folly to proceed in the effort to uphold a sale which the Court declaresto havebeen improperly ordered and tobe void. The-plaintiff’s appeal cannot, therefore, be sustained, and the ruling complained of by him is affirmed.
We now proceed to consider the exceptions to the rulings in the
defendant's appeal.
These are: 1. For that the land described in the mortgage ought not to be sold, but only such estate, if any, which the defendants, or either, had therein; and 2. For that the-trustee not having united with the defendants in executing the mortgage it is inoperative to pass the interest or estate of the defendants, and especially of the feme defendant, in the land, and it is void.
1. The first exception cannot be sustained, for the obvious reason that only such interest as the parties to the suit have in the land can pass under a sale pursuant to the judgment *204and the deed, though it use a descriptive word of larger import than the interest to be conveyed, its operation would be restricted to that interest. In the present case, the trustee becoming a party in whom the legal estate resides, it is appropriate, to the divesting both the legal and equitable estates, and transferring them to the purchaser, for why should they remain distinct, when the only purpose to be attained in having a trustee is to protect the separate estate of the feme during coverture, and the necessity for such trustee ceases alike when the coverture ceases, and when the trust estate passes to one who is s-ui juris and free from disability.
The remaining disability points to the assumed invalidity of the deed itself because the assent of the trustee to its being made is wanting.
The argument to sustain this rests essentially, as we understand it, on the ruling in Hardy v. Holly, 84 N. C., 661. That decision does not support the present contention. In that case the deed of marriage settlement transferred the estate of the feme, on the eve of her marriage, to a trustee, for her separate use and benefit after entering into coverture, “ and subject to her exclusive control and disposition, ¿s if she was a feme sole by order or other writing under'her hand and seal and directed to said trustee,” &c.
Its declaration of trust further provided that the feme should “have power in writing to direct, and when so directed, it shall be the duty of said trustee to exchange and convert the whole or any part of the trust fund into other property,” &c., subject to the same trust, &c.
The Court held, as the deed piMvided the mode in which the feme while covert might exercise control over the fund and direct its disposition, the power must be exercised in the manner pointed out in the deeh, and a conveyance under the statute would be, and was, unauthorized and *205ineffectual. The subject was thoroughly discussed by our late able associate, Mr. Justice Ruffin, and the principle so announced.
The marriage contract and the deed,made to carry it into effect in the present case, contains no directions as to the exercise by the feme covert of her power of disposition of the trust property. In the former the husband undertakes to relinquish all claim to her estate, and that it shall remain “for the use, behoof and benefit of her and the heirs of her body,” adding, “to have and to hold to her, the said Elizabeth Teague and the heirs of her body, free from the power of alienation by him, the said Henry 0. Luther, and exempt from the claims of his creditors.”
The deed, made pursuant to the contract, to the trustee appointed in place of the husband, declared to be such, uses similar wordsin defining its trusts and the land purchased with the proceeds of sale of the land of the feme, owned at her marriage, as authorized by the Court in another proceeding, from M. A. Rogers and wife, and conveyed in their deed of December 9, 1879, to the trustee, Teague, defines the trusts as being “for the sole and separate use of the said Elizabeth J. Luther and the heirs of her body,” and the same terms are used in the habendum clause of the deed.
This is the land the defendants intended and undertook to convey in their mortgage deed, which is executed and acknowledged with the private examination, as required by The Code, § 124(5, paragraphs 5 and 6.
While the terms of the contract and the subsequent deeds use words that would create an estate tail at common law and a fee simple under the Act of 1784, the decree declares the trust attaching to the deed to the trustee to be •“for the sole and separate use of said Elizabeth Jane and the heirs of her body, for, and during the natural life of said Elizabeth Jane, and at the death of said Elizabeth Jane, for the sole use of said Henry C. Luther and the heirs of the body of said Elizabeth Jane.”
*206It is not necessary to inquire in this discrepancy in the declaration of trusts, what is its legal effect upon the trust estate, and whether the children of Elizabeth have any vested trust estate in the land since the sale made pursuant to the judgment, could only pass to the purchaser such title as the trustee and the defendants, parties to the proceeding, had in the premises respectively, whatever that may be.
There is no error in the judgment, in this regard, and so it must be affirmed in both appeals.
Affirmed.