
    Price v. Sykes and Isles.
    From Halifax.
    IN EQUITY.
    "Í. made a deed to S. for l¡mJ, which was destroyed before registration by a combination of I. and S. to defraud a creditor of S. and afterwards, but before the act of 1812, c. 4, the land was sold, under an execution against S. who wac prerent at the sale, and declared the land was his, and urged to buy it, who accordingly did purchase it:
    
      Quere, Did the %vU title of the land pass by the Sheriff’s sale ? Held, that it vrti-i unnecessary to decide that here; because P. had no means of shewing it at Law, as the deed was destroyed, and that gave him the right to resol t to Equity: Held also, that he might do so, after an ineffectual attempt to defend himself at Law.against I.: Held also, that if S. was only the equitable owner, his conduct at the sale would constitute P. his assignee in Equity, and authorise him to call for the legal title:
    
      Infants, who prosecute an unjust claim at Law, and thus compel the Defendant there to come into Equity for an injunction and relief, and who here again set up an inequitable defence, shall pay costs.
    
    The bill stated, that one Crawley, being seised in fee of the laud in dispute, bargained in 1805, with the Defendant Sykes, for the sale thereof at a stipulated price, which was secured- by the bonds of Sykes, and one Hawkins, as his surety, and also by retaining the titie of the land ; that he gave Sykes a bond to snake him a deed, when the purchase money should be paid, — that Sykes paid a part, and that in 1808, Crawley obtained against hisn and Hawkins a judgment for the residue of the pus-chase money ; that execution was issued and the land was sold, when Rhodam. Isles became the purchaser at a 'small sum, and took a Sheriff’s deed, and Hawkins paid the balance; that the purchase of Isles was fraudulent, for Sykes, in fact, furnished the money secretly, and also transferred to Isles the. bond given by Crawley for the title, who then, by the consent of Sykes, made a deed to Isles ; that Sykes continued in possession, sold part of the land to one GammonP 
      and received the purchase money, though Isles made the deed, and that, finally, in 1809, Isles secretly conveyed by deed, the balance of the land to Sykes, except thirty acres which adjoined Isles’ own land, and which he proposed to pay Sykes for and keep ; that Sykes being still indebted to Hawkins, and wishing to delay the payment or defeat the debt, it was afterwards agreed between him andlsfes, that the deed should be burnt, and that Isles should convey again at some future period, and the deed was accordingly destroyed, — that Hawkins sued Sykes in 1811, for the money which he had paid as his surety as aforesaid, and obtained judgment, on which execution issued, and was levied on the residue of the land, viz. sixty acres, described in the bill by metes and bounds, and including the 30 acres which Isles had wished to keep, and the same was purchased by the Complainant, who took a deed from the Sheriff therefor, and immediately actually entered into the land by the permission of Sykes, who was present at the., sale, and urged Complainant to purchase, expressing much anxiety that it should bring enough to satisfy Hawkins, and declaring that Isles (who was then lately dead) liad never paid any thing for the land, and had no just claim to it, but held it in trust for him ; that Mary Isles, the widow, and Lenoir Isles and the other Defendants, (some of whom were infants) heirs at law of Rhodom Isles, brought ejectment against Complainant, and recovered, because the Court of Law refused to bear evidence of the foregoing facts, inasmuch as they would not constitute a legal title, by reason of the deed from Crawley to Isles, and the destruction of that from Isles to Sykes : — The bill then contained a prayer for an injunction, that Sykes and the Isles should convey to Complainant, and that he should be quieted in possession.
    Upon the filing of the bill, the injunction was issued.
    
      'Sykes d:d not answer, and the bill was taken pro confesso against him.
    
      The answer of the other Defendants admitted the contract between Crawley and Sykes, the bonds for the. pur-díase money and that for Use title, and that Ides had purchased under the judgment and execution, charged in the bill, arid stated that Isles doubted whether the Sheriff’s deed was a good title, and, therefore, by Sykes’ consent, he. took a deed from Crawley, it wholly denied that Sykes furnished any pari of the purchase money, or that the purchase was iu trust for him. It insisted also that Isles took possession and held it during his-life, and that, although Sykes occupied a part of the land, he paid rent. It denied that Isles made any secret or «they deed to Sykes, or ever agreed to do so. It admitted that a part of the land was sold to Gammon ; but they say that Isles sold it, made the deed, recen ed the consideration, and held it to his own use. The Defendants also insist, that Sykes had fraudulently surrendered the possession which he held under them to the. Complainant,
    Upon' the coming in of this answer, the. injunction was dissolved, and the Defendants, lessors of the Plaintiff at Law, were put into possession under a writ of possession. But the cause was continued, as upon an original bill; and the testimony being completed, in numerous depositions, the ease was sent to this Court for trial.
    It was much debated upon the facts, by Gaston, for Complainant, and by 8eawe.ll and Mordecai, for the Defendants, Isles, before the Jury, to whom issues were submitted— The Jury, however, found, that the purchase by Isles was made with Sykes’ money, and in trust for him ; that Isles afterwards made a deed to Sykes, which was destroyed, as charged'in the bill; and that Complainant, bought at the Sheriff’s sale by the consent of, Sykes, who then represented that the land belonged to him.
    Upon this state of the case, Mordecai moved to dismiss the bill. If the. Complainant purchased a legal title, he might have availed himself of it at-Law j if Sykes’ title bean equitable, one, then it did not pass, because the sale was before the, act of 1812, c. 4. The legal estate did pass ; and therefore the bill must be dismissed. If the deed from jr^cg |() Sykes was registered, it in clear that it conveyed the land. If it was not registered, which probably we must now consider to be the case, (a,4 the contrary is neither charged nor found) the question arises, whether registration is necessary to pass the title to lands ?
    I am informed that Chief-Justice Marshall, in Hamilton v. Sims, in the Circuit Court for the North-Carolina District, decided that registration is only necessary for the purpose of notice 5 but that between the parties, the deed takes effect by delivery, and is valid without registration. In conformity with this, Judge Hall decided a case on the. circuit at Northampton. The cases of bills of sales of slaves, upon the act of 1789, c. 59, are in point. The act declares unless they be proved and recorded, they shall he void 1 but as it was apparent., that the ceremony of recording was only to give notoriety to sales of slaves, sales were held good between the parties without it. So the words of stat. 1715, c. 38, arc, “ that no conveyance of “ lands shall be, good and available, in law, unless they be <e acknowledged or proved and registered.” There can be no reason why these expressions, of the same import and enforced by the same sanctions, should receive a different interpretation.
    The title did not revert to Mea by the destruction of the deed. The right to a thing, which lies merely in grant, is destroyed by the destruction of the grant: but when the thing exists independent of the deed, and the deed is but evidence of it, the destruction of the deed does not affect the thing which is the subject of it. The. Plaintiff ought, therefore, to have defended himself at Law. If he could not do it effectually, lie should have applied to Equity for relief pending the suit. He cannot take both chances — first at Law, and, if that fail him, then come into tbi.s Court. He, however, does not allege that there was any obstacle at Law, except that the Judge rejected his evidence- If the Judge did right, he has no cause of complaint: if wrong, it is not fox* a Court of Equity to correct the error.
    If Sykes had only an Equity, the writ of ft. fa. could not roach it. The creditor ought to have taken out his execution, and then applied to Equity against the debtor and the holder of the equitable fund for satisfaction. The necessity for this arises from the inoificacy of the execu - tion. Then nothing passed by the sale, in this point of view.
    The Jury have found, that Trice purchased by the assent of Sykes, who encouraged hi n to buy. But the hill does siot allega that he bought from Sylcen, nor from the Sheriff as his agent; but it states, that the sale was upon execution. The Sheriff, therefore, 'acted as the officer of the law, and not as Sykes’s agent.
    
      Gaston, on the other side,
    was stopped by the Court.
    The Court having thus intimated ass opinion, Seaxvdl contended, that if Complainant got a decree, he could not recover costs. The Defend ants are heirs at law, having no knowledge of the facts upon which the Equity of Sykes and Price rqsted, and some of them are infants, who are not to blame for the defence set up here, or the claim asserted at Law for them by their next friends. Infants never pay costs.
    
    
      
       Gilb. L. Ev. 95.
    
    
      
       3 Atk. 223. 1 Hayw
    
    
      
       1 Dick. Rep. 287, 313.
    
   Tatxor, Chief-Justice,

delivered the opinion of the Court:

Whether the Complainant had a legal title to the land for which he was sued, it is unnecessary to decide; because he was unable to establish It upon ifie trial at Law, in consequence of the destruction of the deed, which was effected by the fraudulent combination of Sykes and Isles-That ghes this Court jurisdiction, and his remedy is properly sought here. 'With respect to the. other thirty stores, Sykes was the equitable owner, and might, for a valuable consideration, assign his equitable title to Price, who, purchasing bona fule, could compel Isles to convey to him the legal title.

When, therefore, Price became the purchaser at the Sheriff's sale, at the request of Sykes, and after his declaration that the. latid belonged to him, he stood upon the ground of an assignee, and is well entitled to a deed.

■With respect to the costs: they ought to be paid by the Defendants, since they prosecuted an unjust claim at Law, and have set up an inequitable defence in this Court. In such case, the infancy of the Defendants forms no excuse.

The Court-consisted of the Chief-Justice, Haul and Murphey : and the decree was, that the Defendants, who were of full age, should immediately execute a conveyance to Complainant for the whole tract of sixty acres, with covenants of title as against themselves and those claiming under them; that the infant Defendants should, within one year after full age, execute similar conveyances respectively ; that Complainant should forthwith be let into possession, and be quieted (herein, and an account of rents and profits was ordered ; and that Defendants should pay all costs at Law and in Equity. Reserving to the infants, six months after full age and service of the decree, to shew cause against it.  