
    JOEL VANNOY vs. WILLIAM H. MARTIN & AL.
    A. purchased the land of B. at a sale under an execution he had against B.> and at the sale declared he was buying in the laud, only as a security for - other debts, which were to be ascertained on a settlement with B., and ¿hereby prevented B’s. friends from advancing the money to satisfy the execution». Afterwards the land was sold as the property of A. under executions-against him.
    
      Meldt first, that the Act malting void parol contracts for the sale of land) Key. Slat. ch. 50, sec. 8, did not bar B. from his remedy.
    
      Moldy secondly, that the purchasers under the execution against A. heidhut the title he had, subject to all the equities against it, whether they had notice of such equities or not.
    The cases of Turner v. King, 2 Ire. Eq. 132, Freeman v. Hill, 1 Dev. & Bat. Eq. 389, Polk v. Gallant, 2 Dev. & Bat. Eq. 395, and Rutherford v. Greeny 2 Ire. Eq. 121, cited and approved.
    Cause removed from the Court of Equity of Wihk.es County, at the Spring Term 1848.
    This bill was filed in the Court of Equity for Wilkes County, by Joseph Vannoy against William PI. Martin, Samuel P. Smith and Joseph W.‘ Hacketf, and stated, that the plaintiff was the owner of a tract of land, lying adjacent to the town of Wilkesborough, which he leased in the year 1839 teone Thomas D. Kelly for the term of five years, that th© defendant Martin, in the year 1841, recovered a judgment in the Superior Court of law for Wilkes County against the plaintiff, for about the sum of $860, and had an execution issued thereon and levied upon the said tract of land, and had it advertised for sale ; that the plaintiff atthattime.residedinthe county of Cherokee, at the distance of two hundred miles from the place of ¡sale, and that his lessee» the said Kelly, went to the defen. dant Martin, and told him, that, as he believed the plaintiff was ignorant of the intended sale, and the land was valuable, being worth about $2,500, he would either buy it himself for the plaintiff or raise the money and pay off the debt for him; when the defendant, Martin, told hint, that he would bid off the land himself, but would not keep it; that he had an unsettled account against the plaintiff and would hold it, only as a security for whatever sum might be found to be due to him, upon a settlement with the plaintiff. The bill stated further, that the said land was sold in August 1841, when the defendant, Martin, became the purchaser, at the price of $810, and that the said Martin, after his purchase, several times acknowledged, that he had the land only as a security, and that the plaintiff had a right to redeem it; that the plaintiff and the defendant, Martin, afterwards came to a settlement of their accounts, when it was found, that the balance due from the plaintiff to Martin was about seven hundred dollars, and that Martin offered to reconvey the said land upon being paid that sum; that the plaintiff was unable at that time to pay the said balance, but, not long afterwards, he procured the sum of three hundred dollars and handed it to one William W. Peden to pay the defendant, which was accordingly done on the 25th day of December, 1842, and the said defendant gave a receipt therefor, expressing that the money was received towards the redemption of the said Vannoy’s land ; that the plaintiff subsequently paid on the same account the sum of ninety dollars, and was entitled to a credit for seventy six dollars more, received by Martin for him, and not accounted for in their settlement. The bill then stated, that the said defendants, Smith and Hackett, obtained a judgment against the defendant, Martin, and had an execution levied upon the said land as the property of the said Martin, and had it sold, when they became the purchasers at the price of about one thousand dollars. The bill charged, that the said defendants, Smith and Hackett, had, at the time when the judgment was obtained against Martin, and when they had the land levied on and sold, lull knowledge that the plaintiff had the right to redeem it, and that he had already paid near four hundred dollars towards such redemption. The bill prayed that the plaintiff might be permitted to redeem the land, upon paying to the defendants, Smith and Hack* ett, whatever balance might be found to be due from him to the defendant, Martin, upon their accounting for the rents and profits. The defendants all answered the bill. The answer of the defendant, Martin, denied, that he had purchased the land upon any understanding or agreement whatever to hold it only as a security, subject to the plaintiff’s right to redeem it. On the contrary it assert* ed, that his purchase was absolute for himself, but that, afterwards,he had agreed to re-sell the land to the plaintiff at the price of $1000, provided the money was paid by a certain agreed time, and that the plaintiff had failed to comply with the terms. He admitted the receipts of the sums of money stated in the bill, but said they were paid in part of the price for a re-purchase, and not a redemption of the land. The answer claimed the benefit of the act of 1819 (1 Rev. Stat ch. 50 sec. 8.) making void all parol contracts for the sale of land. The answer of Smith and Hackett denied the plaintiff’s right of redemption, and insisted, that they had purchased without any notice of such right, and relied also upon the act of 1819. Replications were put in to the answers — proofs were taken, and the cause was set down for hearing and transmitted to this Court.
    
      Craige, for the plaintiff.
    
      Guión, for the defendants.
   Battle, J.

The facts of this case are left in very little doubt by the testimony. The depositions of Thomas D. Kelly and William P. Waugh, the letter from the defen. dant, Martin, to the plaintiff, written the 23d of August 1842, and the receipt given by the said defendant to the plaintiff’s agent, Peden, on the 25th of December in the same year, expressed to be towards the redemption oí the land, satisfy us that the defendant, Martin, purchased the said land, under the execution in his favor, not absolutely for himself, but to hold the same merely as a security for his judgment, and for whatever other sum might be found to be due to himupon a settlement, subseqently to be had with the plaintiff. We are satisfied further, that he made representations to that effect, at the time of sale, which prevented the plaintiff’s lessee, Kelly, or some other friend at his instance, from stopping the sale by paying off the amount due on the executions, or buying in the land for the plaintiff, and enabled the defendant, Martin, to purchase it at an under-value. In either case, it would be a gross fraud upon the plaintiff if the said defendant were permitted to set up an absolute title to the land, which it is the duty of a Court of Equity to prevent, and, in the way of preventing which, the act, making void parol contracts for the sale of land, docs not stand. Turner v. King 2 Ire. Eq, Rep. 132. The plaintiff, then, would be entitled as against the defendant, Martin, to redi era the land, upon paying him whatever might be found to be due upon a general account. That being so, the plaintiff has the same right of ledemption against the other defendants, Smith and Iiackett, because they were purchasers at the sale under an execution against the defer,dant, Martin. They purchased the. land, sub* jeetto all the equities against him, whether they had any knowledge of such equities or not. Freeman v. Hill, 1 Dev, & Bat. Eq. Rep. 389. Polk v. Gallant, 2 Dev. & Bat. Eq. Rep. 395. Rutherford v. Green. 2 Ire. Eq. Rep. 121. The plaintiff is, therefore, entitled to a decree for the redemption of the tract of land, mentioned in the pleadings, upon paying to the defendants, Smith and Hackett, whatever sum may be found to be owing from him to the defendant Martin, with interest thereon, deducting therefrom whatever amount the said Martin and the other defendants have received from the rents and profits of the said land. And to ascertain these rents and profits, as well as the sum due and owing from the plaintiff to the defendant, Martin, there must be a reference to the clerk of this Court.

Per Curiam.

Decree accordingly.  