
    *Hicks v. Riddick & als.
    March Term, 1877,
    Richmond.
    Absent, Anderson and Burks, J’s.
    
    1. Parol Contracts for Sale of Real Estate. —R, by a verbal contract, sells a house and lot to M, who pays all the purchase money and is put into possession. R has no interest in the property which may be subjected by attachment against him as an absent debtor to the payment of his debt.
    3. Same — Effect of Subsequent Deed. — After the purchase money had been paid and M put into possession, R sent to M a deed executed by himseli for the property; but M insisting that R’s wife should join in the deed, returned it to R; and it was not again delivered. If the deed might be considered as having been accepted by M, that would not render the property liable to the attachment.
    . This was an attachment in equity in the circuit court of Mecklenberg county, brought in March 1873 by John R. Hicks against C. B. Riddick, J. A. Moss and others.. The plaintiff, charged in his bill, that Riddick, who lived in North Carolina, was indebted to him by bond in the sum of $4,000; that he owned a house and lot in Clarkesville, in the said county, which he prayed might be subjected to pay his debt, and that J. A. Moss was in possession of the property.
    Moss answered, denying that Riddick had any interest in the property, and alleging that he had. in 1863 purchased the property, and had paid in full for it in tobacco, and had been .put into possession of it.
    *The facts, as they are clearly established by the evidence, are: That in April 1863 Riddick, by a verbal contract, sold the house and lot to Moss & Brother, who were manufacturers of tobacco in the town of Clarkesville: That the price of the property was $4,500, to be paid in manufactured tobacco: That the tobacco was selected by the brother of Riddick, who sold the house as agent of Riddick, and the tobacco was delivered and received by Riddick, and Moss & Brother took possession of the house and lot: That Riddick sent to Moss & Brother a deed for the property executed,by himself; but his wife not having joined in the deed, it was returned to him with a lequest that he and his wife would execute a deed. As late as March 1865 Riddick wrote to Moss, saying that he. living in North Carolina, there was no necessity for his wife’s joining in the deed. And he in fact never afterwards delivered to them a deed for the property.
    Moss & Brother having gone into bankruptcy, surrendered this house and lot as a part of their property; and in 1871 it was sold by their assignee in bankruptcy, and purchased by the defendant J. A. Moss. The property has been in possession of Moss & Brother, the assignee and the present owner, from the time of the purchase by the former to this time.
    It appears that, subsequent to the sale of the properly by the assignee in bankruptcy, Riddick filed his bill in the circuit court of Mecklenburg, to set aside his sale to Moss & Brother, on the ground that the tobacco received by him was rotten and unfit for use; but there is no evidence in this record that such was the fact.
    The cause came on to be heard on the 18th of September *1874; when the court held that Moss & Brother were the purchasers for value of the house and lot, and were in possession thereof under a good equitable title prior to the institution of this suit, and, having paid all the purchase price, were entitled to a conveyance therefor; and that Riddick, holding the legal title, was only a trustee for Moss & Brother; and it appearing that they and their assignee in bankruptcy had held undisturbed possession thereof for nine years prior to the institution of this suit, and that Rid-dick, having sold, received full payment for and delivered possession of said house and lot, would be estopped from asserting claim thereto against Moss and Brother, or their alienee, the plaintiff, his creditor, could stand in no better position in relation thereto than the said Riddick; therefore the said house and lot was not liable t.o the attachment levied thereon for the debts of Rid-dick; and the bill was dismissed with costs. From this decree Hicks applied to a judge of this court for an appeal; which was allowed.
    
      W. W. Henry and R. S. Lee, for the appellant.
    
      Jones & Bouldin and John W. Daniel, for the appellee.
    
      
      Judge Burks had been counsel in Floyd v. Harding, involving the same question.
    
    
      
      Parol Contracts — Rights of Creditors.— The principal case is cited with approval in Halsey v. Peters, 79 Va. 66; Reynolds v. Necessary, 88 Va. 128; Burkholder v. Ludlam, 30 Gratt. 259. For general discussion, see Floyd v. Harding, 28 Gratt. 401, and note.
      
    
   Staples, J.

The question presented in this case is substantially the same as that just decided. The only difference is, that here the lien asserted is under an attachment sued out against the debtor as a non-resident. It is claimed that this lien binds the property in the possession of a bona fide purchaser where title is derived from a parol contract with the debtor long before the lien of the attachment commenced. There is no conflict of testimony in respect to the terms of *the contract, and the payment of the purchase money in manufactured tobacco, as agreed by the parties, and the delivery of the possession of the house and lot to Moss & Brother, the purchasers. If the deed made by Riddick, the vendor, car be considered as ever accepted by Moss & Brother, it did not affect the pre-existing equitable estate acquired under the parol contract, complete and fully executed before the delivery of the deed. But it may be fairly presumed that Moss & Brother did not intend to accept the deed until the wife of Riddick had relinquished her contingent right of dower. It was returned by them to Riddick for that purpose; but the relinquishment was never made or the deed restored to the purchasers, although demanded by them.

The pretence set up by Riddick, years after the contract was made and the deed signed by him, of a defect in the quality of the tobacco, is not sustained by a particle of evidence, and is disproved by the only witness of the appellees.

The case presented is, therefore, of a parol contract so far executed as to entitle the purchaser to a deed without any conditions imposed; the deed improperly withheld by the vendor, so that it could not be recorded; possession taken and held uninterruptedly for nearly ten years, until this attachment was sued out by the appellant in J873. The case, as the preceding one just decided, illustrates very strongly the rigorous operation of the recording acts, according to the construction now sought to be given them. The attachment lien confessedly only binds such interest as the debtor has; and here lie had notoriously, years before, parted with every vestige of interest he had except the naked legal title; and that title he withheld in violation *of his express promise. My opinion, therefore, is. that the decree of the circuit court is right, and that the same must be affirmed.

Moncure, P., and Christian, J., concurred in the opinion of Staples, J.

Decree apeirméd.  