
    Matilda Byers v. Joseph K. Wackman.
    1. A resulting trust, arising from the payment of purchase money, may be established by parol proof.
    ' 2. Where the defendant in a statutory proceeding for partition appears and answers, and the cause is submitted to the-court on an agreed statement of the facts, the order of partition made therein will not be reversed on error, merely because the agreed statement shows an equitable and not a strict legal title in the demandant.
    *'3. A purchaser of land at sheriff’s sale under a proceeding in attachment, takes it subject to all equities of third persons, unless he can protect himself under the plea of bona fide purchaser without notice.
    3. Such plea can not be interposed where, after the service of the attachment, and before the sheriff’s sale, the defendant in attachment conveys the legal title to the equitable owner, and the deed is duly recorded before such sale, although the purchaser had no actual notice of the deed, or the rights of the grantee therein.
    Error to the court of common pleas of Wood county. Reserved in the district court.
    The case below was a petition for partition. Wacbman, the demandant, claimed to be seized of a moiety of the premises in controversy, as tenant in common with Mrs. Byers, who owned the other moiety. Notice was served uj)on Mrs. Byers agreeably to the provisions of the statute in relation to partition, and she appeared in court and filed an answer, in which she claimed to be the owner of the entire premises; and the cause was submitted to the court upon an agreed statement of the facts. From this agreed statement it appears that both parties claimed title under Wacbman’s brother—Wacbman by deed from his brother, and she by a deed from a purchaser at sheriff’s sale in an attachment proceeding against the brother. The deed to Wacbman was executed after the seizure of the land in the attachment proceeding, but was executed and recorded before the sale and conveyance' by the sheriff. Neither Mrs. Byers nor the purchaser at sheriff’s sale had any actual notice of the deed to Wacbman, or of his claim to the land.
    As part of this agreement of submission, certain affidavits of Wacbman and his brother were admitted as evidence, subject to exception on the ground that they were parol evidence, and therefore incompetent. These affidavits showed that, at the time of the sendee of the attachment, Wackman had a resulting trust in one moiety of the land, arising from the fact that he had paid one-half of the purchase money therefor, and that the deed from his brother was in execution of the trust.
    On this state of facts the court of common pleas sustained the title of Wackman, and ordered the partition of the premises. To l’overse this order a petition in error was filed iix the district couxd, and has boexx reserved for decision bei*e.
    
      * James Murray, for plaintiff in error:
    We assert the following propositions : '
    1. While it is true that an attaching cx’editor, by service of process, obtains just such title as the debtor held in the attached propex’ty at the time of its seizure upon the process (Burnell v. Robertson, 5 Gilman, 282; Crocker v. Pierce, 32 Maine, 183; United States v. Vaughn, 4 Rob. 527; Nathan v. Giles, 5 Taunt. 516), yet a person claiming to hold a prior legal or equitable lien oix the attached property, must assert it before the px’operty is sold upon the execution or subjected by the decree. Beery v. Mutual Insurance Co., 2 Johns. Ch. 608; Steele v. Spencer, 1 Pet. 589; Phelps v. Willard, 16 Pick. 29; Vattier v. Hinds, 7 Pet. 271; Matthews v. Demeril, 22 Maine, 317; Brown v. Childs, 10 Pet. 211.
    2. The lien of an attachment takes effect from the time of its levy. Ritter v. Scanel, 11 Cal. 238; Tafts v. Manlove, 14 Cal. 47.
    3. Where a loss must fall upon one of two innoeexxt parties, it must fall on that one, if such there be, whose negligence or act has contributed to that result.
    4. If Joseph K. Wackmaxx is the loser in this case it is the direct result of his own act. Why? Because if we are to believe the affidavits he and his brother were each equitable owners of one-half of these pi’emises, under title bond from Loyd; and he had paid his half of the purchase money. Now if Loyd, without his knowledge or authority, deeded the wholo land to his bx-other, it was his duty to look to Loyd for a good deed according to the bond, or return of the pxxrchase money; but he waived all his right, and accepted a quit-claim-deed from hi's brother.
    5. In doing this, he ratified the original conveyance from Loyd to his brother, and thereby is estopped from denying the validity of any liens acquired against the laxxds in the intexfim, the same as the ratification by a principal of unaxxthorized acts of an agent. Wood 
      v. McKain, 7 Ala. 800; Fiske v. Holmes, 41 Maine, 441; Taylor v. Robinson, 14 Cal. 396.
    6. Joseph K. Wackman failed to notify the attaching creditors, or subsequent purchasers, of his alleged title, any further than by placing on record a deed from the attachment debtor, ^executed long after seizure of the land upon the process. This was not notice. In fact, if anything, it was a tacit admission that his title was acquired after the seizure, and from Mm as lohose property it was seized.
    
    7. In an action like the present, we claim that parol evidence is not admissible to impeach our title, or to establish one in favor of the defendant in error.
    8. There is no claim that either or both of these brothers Wackman had not, in fact, actual knowledge of the pendency of the attachment proceedings dui’ing their entire existence.
    
      Oook, Price é Johnson, for defendant in error.
   Welch, J,

In a statutory proceeding for partition, a legal title in the demandant is necessary. If his title is equitable merely, the proceeding should be under the code for an equitable partition, and the defendant should be brought' into court by process. Where, however, the defendant, or party notified, actually appears and contests the demandant’s right, and agrees upon the facts of the case, it can hardly bo claimed that it is error, to the defendant’s prejudice, for the court to order the partition upon a mere equitable title in the demandant. If Mrs. Byers -had no right in equity to the premises, she is not injured by the partition; and if she appeared and answered, she is not prejudiced by the non-service of process.

The simple question then, is, which party had, under the facts shown in the record, the bettor equitable title to the undivided moiety of the premises demanded by Wackman?

The purchaser at sheriff’s sale acquired the interest of the defendant in attachment. That interest, in equity, was only one-half of the premises. Ho hold the other half in trust for Wackman. The purchaser at sheriff’s salo, and Mrs. Byers claiming under him, take that half subject to the same trust, unless they can protect themselves under the plea of bona fide purchaser without notice. They can not, nor can either of them do this, because Wackman’s deed was recorded before they acquired title, and was therefore constructive notice to them of his right. If they bought without examining the record, they bought at their peril. There must be an absence *both of actual and constructive notice of Wackman’s right, to enable them, or either of them, to rise higher in the scale of right than the defendant in attachment, under whom they claim.

It is hardly necessary to say that there is nothing in the objection that parol proof was inadmissible to prove the equity of Wackman. His equity, was a resulting trust, arising from the fact that he paid half of the purchase money. It is well settled that parol evidence is competent to prove such a trust.

Judgment affirmed.

Scott, C. J., and Day, White, and Brinkerhoee, JJ., concurred.  