
    Shields vs. Mitchell, Turner et al.
    
    Nashville
    December 1836.
    Land held under and by virtue ofn deed which is not registered, may be levied and sold by an execution at law.
    The vendee of land, by the execution of a deed of conveyance, is vested with atitle not merely equitable, but an inchoate or imperfect legal title.
    The vendor, by ihe execution of the deed, divests himself of his legal estate* no title, legal or equitable, remains in him; he is seized^of nothing for the use of the vende*-the title passes from him and no act remains to be done by him to give effect io tlu. conveyance.
    If the legal title be not perfected in the vendee, until registration, it does not renmnt in the vendor; but upon registration, the legal title, by operation of law, vests >n vendee from the execution of the deed.
    This bill was filed by the complainant Shields, pra\ mg that fifty acres of land lying in White county, (the equitable interest in which, the bill alleged, was in defendant Turner,) might be sold to satisfy a judgment obtained by comp; ‘-sat against said Turner.
    The facts agreed on by the parties were as follows- Defendant, Turner, purchased the fifty acres of land before !f tioned, from a man by the name of Warren, who executed ¡* deed for the same to Turner. The deed was atteste- ij 
      two subscribing witnesses, but never had been proved and . 0 r
    In January 1830, the defendant Mitchell obtained ajudgment aga;nst Turner. On this judgment an execution issued, was levied upon the said fifty acres of land, which was sold by the sheriff under and by virtue of the judgment and execution in April 1830. At the sale, defendant Mitchell became the purchaser.
    The complainant, Shields, also obtained judgment against the said Turner in February 1830, on which an execution, issued and was returned by the sheriff, “nulla bona,” whereupon, in August 1830, this bill was filed to subject the land to the payment of this judgment.
    No fraud or collusion to prevent the deed f.oin being registered, was charged or proved upon any of the parties.
    The grounds assumed in the bill are that Turner’s deed from Warren not being proved or registered, he only had an equitable interest in the land; that this, equitable interest could not be sold by execution at law, that therefore the sale of the land under Mitchell’s judgment was void and did not pass any interest, either legal or equitable to Mitchell, the purchaser; and,that Mitchell, by the filing of his bill in August'1830, acquired a lien on Turner’s equitable interest in the land, to discharge which, it ought to be sold. The decree of the Chancellor was in favor of the complainant, from which the defendants appealed to this court.
    
      Wm. E. Anderson, for complainant.
    1st. If there had been collusion between Warren, Turner and Shields, to prevent the deed from being registered and to vest Shields with the title, the case would be parallel in principle to the case of Vance vs. M’Nairy, 3 Yer. 171. In the case of Vance vs. M’Nairy, Brown delivered the unregistered deed to Vance after the execution sale, and he with a knowledge of the sale suppressed the deed, and obtained a conveyance from Armstrong by the request of Brown, the execution debtor? which the court say, “was a fraud upon M’Nairy.
    Without questioning the correctness of the decision in Vance vs. MNairy, there is one position taken in the opin-ton, which perhaps was not necessary to the support of the de•cree given, and which we think was probably not sufficiently considered on that account; that is, “that an unregistered deed passed the legal title to the bargainee.” With that deference which we ever feel for the opinion of this court, we would ask that this proposition be re-examined.
    Whether a legal title passes by an unregistered deed, is not a question identical with the enquiry whether such interest or estate passes thereby as is subject to execution sale; the negative of the first proposition is perfectly consistent with the affirmative of the latter. The statute of 29 Ch. II. c. 3, § 10, which was extended to the colonies by the 5th of Geo. II. subjects trust estates to execution.
    There were two descriptions of trusts before and since the passage of this statute; one where a trustee was seized in trust to sell, to lease, or rent for the use of another; the second where one is seized to the use of another. In the latter case, the legal estate is executed, or the possession transferred to the use, by foree of the 27th Henry VIII. c. 10. In the first case the trust can only be executed in a court of Chancery. Notwithsanding the statute of Charles II. operated upon the trust which could be executed in a court of chancery, yet it cannot be pretended, and never has been pretended that the character of the estate of the cestui que trust was changed from an equitable to a legal estate; this would have been giving the same force and effect to the statute of 29th Charles II. as that of 27th Henry VIII. and obliterating entirely the distinction between uses and trusts, which it is belieyed has never been pretended.
    In that description of trust estates executed by the statute of 27th Henry VIII. the cestui que use was seised of the legal estate, and could maintain an ejectment or any other suit at law, to sustain which, legal title was necessary; but not so with the cestui que trust, where the use was a technical trust, even after the statute of 29th Charles II.
    But the distinction which existed in England between uses which were executed by the statute of 27th Henry VIII. and trusts which it required a court of chancery to execute, is obliterated in this country, so far as regards the character of the estate of the cestui que use or trust, by the act of 1715, c 38, 1 J 1 -§5.
    By this act no conveyance shall be good and available in law unless proven and registered &c., and all deeds so done and executed shall be valid and pass estates in land &c. Here the estate shall pass by the deed, without regard to the uses or trusts declared, and independent of the source from whence the consideration or purchase money carne.
    Every estate in this country held for the use of another, no matter how pure and unmixed is the use declared to the cestui que use, is a technical trust which can be executed in a court of chancery only; the transfer of the legal estate can be effected only by the registration of a deed, or the decree of a court of chancery vesting title by virtue of the. ¡lower given them by the act of 1801, c 6, § 48.
    We therefore insist that if it shall be holden that an unregistered deed gives such interest to the bargainer as may be sold by execution, yet the purchaser does not obtain the legal title.
    Suppose the deed to Turner is lost or destroyed, and Mitchell had to bring his ejectment to recover possession, can it be pretended that he could supply this link in his chain of title by parol proof of the execution of this deed; nor do we expect it would be pretended that he could produce an unregistered deed and read it by proving its execution on the trial.
    2nd. Taking it for granted that Turner had an interest subject to execution, yet Mitchell the purchaser Under execution obtained an equitable, not a legal estate; he would have to come to a court of equity to obtain the legal estate.
    If a purchaser at execution sale be under the necessity of asking a court of equity for its aid to make ,his purchase available, he will stand in the light of one asking a specific performance of a contract. If the terms of the purchase be fair and equitable, he may obtain the relief he asks; but if they be unconscionable, the court will feel itself as much at liberty to refuse its aid as they would in a case where the purchase was by private contract.
    We perhaps might with safety assume that it is a settled rule of chancery to afford no aid to a purchaser at execution sale, J A on whom there had been no fraud committed.
    If Turner fraudulently withheld his deed from registration, Mitchell might ask the aid of the court to compel him to surrender it, that it might be registered, hut we insist that that relief would only be granted to one who had given an equitable consideration.
    Turner, however is accused of no fraud, his deed may be lost or destroyed by accident; it is not known where it is or why it is not registered. The court has not the power to give Mitchell the relief of having the deed produced and •registered; they have not the power to execute'such a decree. Turner is beyond the jurisdiction of the court.
    What relief would the court give Mitchell? Would they decree the title in him upon his bill? We say that would depend on two things, neither of which he has shown; first, that he had given a fair price; secondly, that his difficulty was the result of a fraud, and not a mere accident, when every body concerned were innocent of any wrong.
    Viewing Mitchell therefore as a purchaser, he has not made a case in this record that would entitle him to the aid of this court in consummating his purchase had he filed a bill for that purpose.
    Viewing him as a creditor of Turner, he is entitled to the aid of this court in subjecting this property to the payment of his debt, and this we grant him as if he had filed a cross hill for that purpose; but then we claim a preference over him as we are first in asking that aid of the court, and this the chancellor allowed us.
    But, thirdly, it is contended by the complainants that the interest of Turner in the land, by virtue of this unregistered deed, was not such as is subject to execution by the statute of 29th Charles II. The trusts embraced by that statute are such as are raised by the instrument or conveyance which gives seisin to the trustee, and are not such as are raised by covenants or agreements of one already seised. '
    To state the idea more clearly by example. To make a trust estate in Turner of land of which Warren is seised of the legal fee, the trust must be raised by the grant or convey-anee vvhicli vested Warren with the legal seisin: and if ® is vested first with the legal seisin, he cannot by any contract, covenant or instrument, raise a trust upon his existing seisin, upon which the statute of Charles II. operates. This position is so ably and directly established by a decision of the late supreme court of this State, that we offer no further argument but a reference thereto. See the case of Sliute vs. Harder, 1 Yer. Rep. 1.
    
      George S. Yerger, for defendant.
    The question in this case is, whether land held by virtue of an unregistered deed, is subject to levy and sale by execution at law.
    This question depends upon the construction of the act of 1715, c 38. That act requires all deeds and bills of sale to be proved and registered, or the same shall not be available in law, &c. Did the legislature mean by this, that all deeds not proved and registered should be void and of no avail between the parties? or did they only mean that they should be void as against creditors or subsequent purchasers ? The latter has been considered in North Carolina and this State, the true construction.
    The vendor by the execution of the deed divests himself of his legal estate. No interest whatever remains in him whether the deed is registered or not; the title .in fact passes from him, and the vendee is clothed with an inchoate legal title, made perfect by the registration of the deed at any distance of time.
    It is admitted, that, as to a subsequent purchaser by deed, if the prior deed is not registered in time, it is void, but it is perfect as between the parties.
    When the deed is registered, the legal title is in the ven-dee from the date of the deed.
    The above principles are settled in this State and North Carolina, and the reasoning of the court in the cages is believed to be conclusive, vide Vance vs. M’JVairy, 3 Yer. Rep: 711 Morrisvs. Ford, 4Dev. Rep. 418: 1 Hawks Rep. 87. These cases settle the point in controversy; they explicitly decide that the bargainee [of an unregistered deed has a legal interest, which may be sold by an execution at law.
    
      Suppose, however, the argument of the counsel on other side, that no legal estate passes from the bargainer until registration, and that it remains in him, is corr cct, still it is in . , , . , , , , sistedj.it is such an interest as may be sold at law.
    That part of the statute of 29th Charles II. which subjects trust estates to execution at law, is in force in Tennessee. Shute vs. Harder, 1 Yerg. Rep. 1: Russell vs. Stinson, 3 Hay. Rep. 4, 5, 6, 7.
    If the deed is unregistered, the bargainer, if he has any title at all, has only a bare legal title; the entire beneficial interest is in the bargainee. In such case the bargainer is a mere trustee, he holds it in trust for the bargainee, and the case is literally embraced by the statute of 29th Charles II. vide 17 John. Rep. 351: 1 John. Ch. Rep. 62, 57: 18 John. Rep. 94: 2 Blk. Com. 338: 3 Hay. Rep. 4: Willis on Trustees, 109, 116, 117, 118.
   Reese, J.

delivered the opinion of the court.

The question in this case submitted for the determination of the court is, whether the land of one who holds by an unregistered deed of conveyance, is liable to be levied upon and sold by an execution at law? The affirmative of this question was maintained and determined by this court in the case of Vance vs, M’Nairy, 3 Yerg. Rep. 171. That case was in one form or other, long before this court, and received upon full discussion, the deliberate consideration of many able judges. The bill of M’Nairy vs. Vance, was filed in this court, when it was invested with original chancery jurisdiction. It was brought to final hearing before judges Haywood, Whyte and Emmerson. They determined the case in favor of the complainant M’Nairy, establishing thereby the principle, that land, held by an unregistered deed, is subject to execution sale-. A bill of review was thereupon filed in the court of Errors and Appeals, which afterwards, under an organization of the court, of short continuance, was brought to hearing before Judge Peck, one of the judges of that court, sitting as chancellor, when he determined in favor of the principle of the original decree, upon which, an appeal was taken to the courf of Errors and Appeals, and, by judges Whyte and Green, the decree of the chancellor was affirmed, as reported in 3 Yerg. Rep. 171. Thus was the question authoritatively settled by the opinion of five judges, and if we entertained doubts of the correctness of that opinion, we ought to feel much difficulty in giving effect to those doubts, by overruling a decision, formed after discussion so full and so frequent, and sanctioned and fortified by so large an amount of learning and ability. But we do not entertain doubts of its correctness. We think land, held by an unregistered deed of conveyance, is liable to be sold by execution at law, not because the statute of 5th Geo. II. c 7 § 4, hrs given operation here to the statute of 29th Charles II. § 10, and subjected certain species of trusts or equities in the latter statute described, to the action of a fi. fa. (see 1 Yerg. 1,) but because the vendee, by the execution of a deed of conveyance, is vested with a title, not equitable merely, but with an inchoate and imperfect legal title also. The vendor, by the execution of the deed, has divested himself of his legal estate; no title, legal or equitable remains in him; he is seised of nothing for the use of the ven-dee; he is not a trustee for the vendee. The title passes from him and no acts to give it effect remain to be done by him. If the legal title be not perfected in the vendee, until registration, it does not remain in the vendor. Upon registration, the perfect and entire legal title by relation and operation of law, vests in the vendee from the execution of the deed. If it be never registered, it does not revest in the vendor.

Subsequent to the case of Vance vs. M'Nairy, the question in that case came before the supreme court of North Carolina, and their decision is reported in the 4th volume of Devereaux Reports. It is true in 1812, that State by statute subjected equities to execution sale, but the decision of the court is not based upon that statute.

The opinion of the court was delivered by Judge Gaston, a most able lawyer and enlightened judge. He says “that the estate wh:ch the debtor held under the unregistered deed was conveyed by the sheriff’s deed to the plaintiff; for, says he, it was to many purposes a legal interest, although the title was not legally completed. Such an interest it was holden in the case of Prince vs. Sykes and Iles, (1 Hawk. 87,) was liable to seisure and sold under an execution before our act , , . . . . 1812, which authorised the levying ol executions upon equitable estates.- The bargainee after the execution of the deed, and before the registration has not a mere equity in the land, he has an equity and an incomplete legal title. When the registration takes effect he is then perfect‘owner from the time of the execution of the deed. If he dies before registration,his wife is entitled to dower as of a legal estate. If a prcecipe be brought against the bargainee, and a recovery upon it before enrolment, it is good, for he was tenant of the freehold.” See also the case of Tolar vs. Tolar, 1 Dev. Eq. Rep.

In the case of Prince vs. Sykes and Iles, 1 Hawks, 87, the able counsel who argued that case, Mr. Gaston for the complainant, and Mr. Mordecai for the defendant, took the same view of this point. The latter specially insisting that the execution sale was good, and that although the deed of the debt- or was unregistered and had been destroyed, yet by the sheriff’s deed, complainant had been so far vested with the legal title that he might when sued at law, have defended himself in the ejectment brought against him, and therefore ought not to have come into chancery for relief. This is adverted to, in order to show the course of legal thinking among eminent lawyers in that State.

We adhere, for the foregoing reasons, to the authority of the case of Vance vs. McNairy, and those reasons we apprehend, stand in no need of the auxiliary support, to be drawn from the consideration of the inconveniences which would result to the community by permitting and encouraging bar-gainees to keep their deeds from being registered, or to destroy them when execution sales might become imminent.

The decree of the chancellor will be reversed and the bill be dismissed with costs.

Decree reversed.  