Be this as it may no person can avail himself of a fraud, but he who is prejudiced by it; the defendant’s title in this case, cannot be affected by it, for he has got none; his execution and levy having never been recorded in the records of the°Oounty Court from whence it issued.
The second is — the statute law of the state by which it is enacted “ That all bargains, sales, leases, or other alienations, etc. of lands, tenements, or hereditaments whereof the lessor, vendor, grantor, or the person who- doth execute any instrument in writing transferring any right or title to lands, etc. to another person, the present possessor thereof only excepted; is disseized or ousted of the possession thereof, by the entry or possession of any other person or persons, shall be null and void and of no effect in the law,” etc. And the- statute makes it highly penal for any person to give or receive any deed under the circumstances aforesaid. And when the deed from the executors of said Adams was given to the plaintiff they were disseized amdi ousted of the possession by the entry and possession of the defendant. - •
By the Court. Executors and administrators are officers of trust, and act by virtue of their power; and when they sell *491and give deeds of land in their official character, pursuant to orders from the general assembly or the Court of Probate, they are not within either the letter or reason of that law.
The preamble of the statute is —• This assembly observing the growing inconveniency in the government, by means of many taking in hand, bearing up, or upholding of quarrels, and sides, etc. Further this is a penal statute, and is to be construed strictly; those who counteract the purview of the statute, are within the penalty.
Guardians who give deeds of the lands of their wards, pursuant to a decree of a court of chancery — executors, etc. who give deeds of the lands of the deceased by order of the assembly or of the Court of Probate — and collectors who sell lands for payment of taxes by order of law •— and the treasurer who gives deeds of land belonging to the state, cannot be said to be seized or disseized of the lands, they undertake to convey; who do not act in their own right, or by virtue of any interest they have, but wholly by public authority, cannot be considered as being in any sense, within the statute: Besides, most of them are under injunctions to convey in a limited time which would render the performance of their duty impracticable if it was necessary, in such cases, that possession should be recovered, before a sale would be valid.
The case of Daniels v. Avery, adjudged at New London in A. D. 1785, where the deed, of an administrator upon an insolvent estate was adjudged to be void by force of the statute, because a third person was in holding and claiming the lands against the administrator, is but a single decision, and cannot be the true meaning and construction of the law. See Allin et al. v. Hoyt, Kirby’s Rep. 221.