Haines, J.
The lessor of the plaintiff claims title to the premises in question, by virtue of a sale and conveyance to him by Joseph Thompson, assignee of William R. Taylor, an insolvent debtor; and having proved that William R. Taylor formerly occupied the land, .and read in evidence the deed of conveyance from the assignee, and the record of the proceedings of the court of common pleas of Hunterdon county, in pursuance of which it purported to have been made, rested Ins cause.
The defendant, by his counsel, thereupon moved the court to non-suit the plaintiff on two grounds :
First. Because the assignee had sold the property in question at a private sale, and without advertising the same.
And secondly. Because by the record of the proceedings of the court, of common pleas of Hunterdon, it appeared that William H. Sloan, who at the time of the discharge of William R. Taylor, was appointed assignee, having died and left the estate unsettled.
The court, on the application on behalf of the creditors in September, 1852, appointed Joseph Thomson assignee in his place, and the defendant insisted that the court had no authority to make such substitution.
The justice, before whom the cause was tried, non-suited the plaintiff, and the motion now is to set aside the non-suit.
It does not appear by the case upon which of the grounds the non-suit was ordered, but if either was well taken it cannot be set aside.
The first point is manifestly fatal to the plaintiff’s recovery. He claims under a deed of conveyance of the assignee, made in pursuance of a private sale, without advertisement or any notice to the public.
This is in direct violation of the act of 15th of April, 1846, regulating sales of real estate made under a public statute or the direction of a court. The act provides that in all cases whatsoever, where any sheriff, coroner, master in chancery, executor, administrator, guardian, commissioner, or other officer or person, now or hereafter shall be authorized or required by any public statute, or the direction of any court of competent jurisdiction in this state to make sale of any lands, &e., unless otherwise specially directed by law, such officer or person shall give notice by public advertisement.
The assignee, by the act of 1795, has full power and authority to dispose of real estates assigned to him, and to execute good and sufficient deeds for the same.
The whole power of sale is conferred by the statute, and without it he could make no sale. The assignee was then a person authorized by a public statute to make sale of lands, and is clearly within the words and spirit of the act.
If the sale can be supposed to have been made under the new act of 17th of March, 1846, (Rev. Stat. 675,) the result is the same, for the twelfth section expressly provides for a public sale.
This is also in accordance with public policy, which requires that every such sale shall be public, that both the debtor and his creditors may have all the advantages that may arise from the competition of purchasers, and that every suspicion of collusion may be removed from the trustee.
In cases of sales of lands of minors, the chancellor may direct a public or private sale, in his discretion, but it is in virtue of express power given to him by the statute. (Rev. S. 651, sec. 3.) And such sale must be approved by liim, and is subject to his control.
Upon the second point the court have not been able fully to agree, and as it is not essential to the determination of the case, no opinion is expressed upon it.
The first ground was well taken, and the non-suit properly ordered. Let judgment be entered upon it.
Elmeb, J., concurred.