
    Edwin Moody vs. George W. Farr.
    Where a vendee, who has taken from his vendor a bond for title when the purchase-money is paid, has, on the payment of all the purchase-money, such an interest in the premises purchased, as is liable to seizure and sale under execution of fieri facias at law.
    Where a purchaser, under execution at law of real estate, to which the judgment debtor had but a bond for title, files his bill against the vendor, averring that the whole purchase-money was paid by the judgment debtor before the sale under execution, and demanding title; and the vendor answer denying the payment by the vendee, and averring the eancelment of the sale, and delivery up of the title-bond before the sale under execution ; held, that the purchaser at the sheriff’s sale must prove satisfactorily that the whole purchase-money has been paid, or his bill will be.dismissed.
    On appeal from the decree of the superior court of chancery ; Hon. Robert H. Buckner, chancellor.
    Edwin Moody states in his bill that in August, 1839, he purchased at sheriff’s sale under executions from the circuit court of Hinds county against John Shields, a lot in the city of Jackson, to which the sheriff executed to him a deed. That Geo. W. Farr, in November, 1833, bought the lot at public sale and paid the purchase-money; after which Farr sold the same property to Shields, and gave him a bond to make the title on the payment of the purchase-money; which Shields had paid up in full; that while Shields was thus owner of the lot, most of the judgments under which the complainant purchased, were rendered against him; that after'the complainant’s purchase at sheriff’s sale, Farr repurchased the property from Shields, made a payment, of the character of which the complainant was ignorant, and obtained possession of the title-bond as a mode of re-conveyance. That while Shields was the owner, Farr purchased the property at sheriff’s sale, under execution against a former owner, in order to fortify the title he was bound to make to Shields. That Shields was dead; and his wife’s dower had been purchased by complainant. That under his purchase at the sheriff’s sale against Shields, he had gone into the possession of the property ; but that Farr had sued him before magistrates in an action for an unlawful entry and detainer, and had obtained an irregular and unjust judgment; from which he was about to appeal, when between himself and Farr it was agreed to abide the decision of the chancery court in the suit about to be instituted. That Farr pretends to be owner by virtue of his original purchase and the repurchase from Shields. The bill prays that Farr may be compelled to convey the title to the complainant.
    Farr, in his answer to Moody’s bill, admits the sale by the sheriff to Moody; states that he. was present at it, and publicly and in the hearing of Moody, declared that Shields had not any title to or interest in the property, but that it belonged absolutely to himself; notwithstanding which Moody purchased. That in October, 1838, he made a contract with Shields for the sale of the lot; by which Shields delivered up to him $2800 of his paper held by Shields; and executed a written agreement' to deliver by the first of January, 1839, to him, $3200 more of his liabilities, or other paper which should be satisfactory to him; the value agreed on for the lot being $6000 ; in consideration of which, he gave Shields a bond to execute to him a title-on his payment of the $3200. That in March, 1839, Shields had not made, and was unable to make the payment of the $3200; when, in view of which, the whole contract between Shields and himself was rescinded; he delivered up to Shields his obligation to pay the $3200, and received back his title-bond ; and inasmuch as the notes already given up in part payment by Shields had been destroyed, in view thereof Shields received three negro slaves, and a tract of 1280 acres of land in Texas; by which arrangement the sale made in October, 1838, was rescinded and annulled, and the title-bond then given being delivered up in March, 1839, had been since lost or destroyed.
    He admitted he had bought the land at sheriff’s sale, but it ‘ was long anterior to the sale to Shields; before his sale to Shields, he had in 1835 sold the property to Young, and on obtaining judgment against Young for the purchase-money, he had bought it, and afterwards rescinded his sale to Young. That he is advised Shields never had an interest that could be sold under execution. That when Moody bought at sheriff’s sale, he (Farr) was in quiet possession, and so continued until Moody, in October, 1839, unlawfully ejected his tenant, and took possession, and has been in possession and reception of the rents ever since, which were worth $50 per month; for which he contended Moody was responsible, and made his answer and cross-bill to effect that end.
    Moody, in his answer to the cross-bill, averred that Farr was himself a bidder for the property at the sheriff’s sale at which he purchased; and after the purchase by him offered to buy of him, and entered into an agreement for that end, but refused to carry it out. He denies that Farr was in possession when the sheriff’s sale took place; but that one Baldwin, as tenant under a lease from Shields, was in possession; and that Farr had never been in possession since his sale to Shields; that the rents were worth about $15 per month.
    It was proved by C. M. Hart, that when Moody purchased the lot at sheriff’s sale, Farr gave notice that Shields had no title, and that Farr bid for the lot.
    James W. Farr proved that in August, 1839, his brother, George W. Farr, was in possession of the property in controversy by his tenant Stevenson, who, after Moody’s purchase, delivered the possession to Moody, his brother living about fifteen miles from Jackson ; the lot at the time of the sheriff’s sale was worth about $5000.
    A. Robbins proved the property was worth about $4000 ; and would rent for $400 a year.
    William Albertson testified, that he was one of the jury on an issue with reference to the property in controversy between Andrew Wilson and Henry S. Baldwin, on the 10th of March, 1839; at the trial of which, George W. Farr was a witness; who then testified that Shields was the owner of the lot, that he had given him a title bond to it; that he had also purchased the property at sheriff’s sale as the property of Young, and had directed the sheriff to make Shields a deed to it.
    A. N. Huston proved the same in substance; with the addition that from what Farr said at the trial of the issue, of his direction to the sheriff to make the deed to Shields; that Shields had paid the purchase-money.
    D. Shelton, Esq. proved that about the 10th of October, 1838, he wrote the bond for title from Farr to Shields ; but does not recollect seeing it executed.
    William C. Demoss proved, that as sheriff of Hinds county, he sold the lot as the property of Young in 1838, when Farr bought it, and directed him to make the deed to Shields, which he never did; that he afterwards as sheriff sold it to Moody, as the property of Shields.
    Josiah Hicks proved, that in the spring of 1839 he was about trading with Mr. Farr for the property; Baldwin was in possession of it; and he applied to Baldwin to know if he bought of Farr whether he would give up possession; which Baldwin agreed to do, provided Farr would release him from some rent he was in arrear for; that he thought the lot was then worth about $3000.
    Upon cross-examination he stated, that he offered Farr about $1500 for half the lot at that time; part of which was to be paid in a note of Farr’s which he held for $1000, and the rest in a negro woman worth about $600, but the trade was not consummated; that Farr did not appear anxious to sell; but wished to pay his debt; which he subsequently did do; Farr was perfectly solvent; that if the trade had been made, he would have considered his half the lot worth $2500.
    C. D. Learned testified, that in November, 1839, Moody leased the property in controversy to certain tenants at $50 per month; but that at that time, any property habitable, rented at high rates.
    A. Robinson proved, that H. I. Baldwin was in possession of the property until the spring of 1839, as tenant of Farr, when he left it, and one Stevenson became Farr’s tenant under a special contract, at the making of which the witness was present; Stevenson staid in possession about three or four months, when Moody obtained possession, and had been in it ever since.
    J. P. Oldham testified, that he was the justice of the peace before whom the suit of Wilson and Baldwin, to recover possession of the property in controversy, was tried in March, 1839 ; at that trial, the bond from Farr to Shields was exhibited to show Shields’s title to the property; that subsequently, in a conversation between himself, Shields and Farr, Shields remarked that the time for making the deed to him by Farr had passed, and that he could exact of Farr the penalty for not making it, which Farr did not controvert.
    Upon this state of pleading and proof, the chancellor dismissed Moody’s bill; and also dismissed Farr’s cross-bill, without prejudice to his rights at law growing out of the controversy.
    From this decree Moody appealed.
    
      Lea and Lea, for appellant,
    contended that
    1. The material question in this cause is, whether Shields was at any time the legal owner of the lot in controversy, after the sale of the judgments against him under which it was sold to Moody; if so, the judgments were liens on the property, and Moody’s title cannot be questioned.
    This appears as well from the testimony as Farr’s own admissions ; and from his failure to controvert Shields’s claim to a deed, when made in his presence; which silence on the part of Farr is that kind of acquiescence which has been considered as equivalent to a positive admission.
    2. The interest of Shields on the payment of the whole purchase-money, was the subject of seizure and sale under executions against him. Bogart v. Perry, 1 J. O. R. 53; (and on appeal) 17 Johns. R. 352. So a person in possession of land, under a contract for the purchase and sale of it, has an interest in the land which may be sold on execution. Jackson v. Scott, 18 Johns. R. 95. In Maryland, it has been decided, that an equitable interest in land may be taken and sold on execution. Thus, if A. purchase land from B., and pay for it without receiving a deed, or if B. hold it in trust for A., A.’s interest may be taken and sold on ajft. fa. ; and the purchaser on execution will receive the aid of a court of equity to perfect his legal title. Hopkins v. Stump, 2 Har. & John. 301. Under the statute law of this state, it would seem that this question is free from difficulty or doubt. “ Estates of every kind, holden or possessed in trust, shall be subject,” &c. H. & H. 349, sec. 29. And when lands, &c. shall be sold on execution, it shall be the duty of the sheriff to make such deed to the purchaser as shall convey “ all the right, title, interest, claim and demand of the debtor or defendant, which he had in and to such lands, &c., either in law or equity.” H. & H. 644, sec..48. Now what is an estate? If the vendor to whom the whole consideration has been paid, holds or possesses an estate in the land sold, and so holds or possesses in trust for the vendee, it follows that the estate, whatever it may be, is subject to sale on execution. The language of the statute is broad, comprehensive and positive. “Estates of every kind,” &c. “ The term estate,” says Ch. J. Savage, “ is very comprehensive, and signifies the quantity of interest which a person has, from absolute ownership down to naked possession. Real estate includes every possible interest in land, except a mere chattel interest.” The vendor, then, who has not made a conveyance, has an estate in the land sold; and where he has received the whole consideration, it is well settled that he becomes seized in trust for the vendee. And so the case is clearly within the statute. But Shields had not only paid the whole consideration, which vested in him the entire equitable interest; he also held the possession ; and possession of land is an interest that may be sold. 3 Caines, 189; 16 Johns. 192. And although a mere equity cannot be sold, yet an equitable interest, coupled with the possession, may be sold on execution. The interest of the party in possession is not a mere equity. Jackson v. Parker, 9 Cow. 81. And so Shields, having paid the.consideration, and being confessedly in posses-' sion when the judgments were rendered, had a legal estate on which the judgments attached as liens, which could not be defeated by any subsequent transactions between him and Farr, nor by any claim of Farr’s, however acquired or set up. The lot, therefore, was sold on executions founded on judgments which attached as liens on Shields’s estate, and the sheriff’s deed, by operation of the statute, vests Shields’s entire interest, both legal and equitable, in Moody.
    As to the effect of Farr’s admissions, we content ourselves with a reference to a single authority — Gresley’s Eq. Ev. 349.
    
      D. Shelton, for appellee.
    First. Shields was the holder of no interest that could be sold, under execution, even if that sale had been made before the contract was cancelled.
    1st. Shields was the holder of a mere equitable chose in action, and even if he had paid down the whole purchase-money at the time of the contract, his equitable interest could not be sold under execution. 16 J. R. 197. A judgment at law is not a lien on a mere equitable interest in land, and an execution sale will pass no interest which a court of law cannot protect and enforce. 1 J. C. R. 56; 17 J. R. 355.
    2d. Shields being the holder of a mere equitable chose in action, if from the circumstance of part payment and possession, with Farr’s consent a specific performance might have been enforced ; yet more than half of the purchase-money was unpaid, and the equitable interest of Shields in the land could not exceed the proportion between the amount paid and the original consideration, which was not one half. Such an undefined and complicated interest cannot be reached by an execution. 1 J. C. R. 56; 17 J. R. 355.
    Second. If Shields ever had any interest that could be sold under execution, that interest Avas divested by cancelling the contract, and redelivery of possession to Farr before the sale under execution.
    1st. If Shields ever possessed anything beyond the mere equitable chose in action, it was naked possession; but the chose in action I have shown was not liable to sale, yet it may be that the right of possession (which is a legal right) in an action of ejectment against Shields, would ha.ve been sustained in favor of a purchaser, but not against a third person holding the legal title, and having acquired possession prior to the execution sale. Thus, where A. purchases and pays for land, but does not take a deed, the vendor afterwards, by direction of A., conveys the land to B., a creditor of A., the land being levied on and sold under a judgment lien created against A. before the conveyance to B., an action of ejectment cannot be sustained on the sheriff’s deed to eject B. The court decides that no interest whatever was conveyed by the sheriff’s deed. 16 J. R. 196.
    But suppose by the sheriffs sale Moody did take Shields’s interest, legal and equitable, then it was only Shields’s interest under the contract, and it shall in no way operate to the prejudice of Farr. Moody will therefore be substituted to Shields in the contract with Farr. Shields was entitled to the specific performance of that contract only, on payment of $3200 and interest from the 1st January, 18 — . Moody is therefore entitled to nothing unless he will perform Shields’s contract. The principle, if sustained for Moody, is, that he shall be entitled to all the right Shields had in the premises. That principle is thus limited, “ but it shall be of no prejudice to the real owner.” 18 J. R. 97.
    It may be insisted that after the contract with Shields, Farr was seized of the legal title for Shields’s use, and that under our statute (H. &. H. 349,) Shields’s interest as cestui que use was liable- to sale under execution.
    Two satisfactory answers may be given to this position.
    1st. Under the facts of the present case, the payment of the $3200 was a condition precedent to making the title, and therefore until payment of the $3200 there certainly is no trust. 1 J. Ch. R. 54; 17 J. R. 354.
    • 2. Our statute applies only to those cases in which the cestui que trust has the entire beneficial interest and the trustee the naked formal title. It may be, that if the contract had been fulfilled, so that Shields was entitled to a deed when the sale was made, the statute might apply; not otherwise. 1 Johns. Ch. R. 54; 17 Johns. R. 354.
    It is said that it appears, from the evidence, that Shields was the actual owner of the property in full; and that weight must not be given to Farr’s answer because of his interest. The rule is otherwise. 9 Tesey, 282. The facts do not establish any title in Shields; but confirm the answer of Farr.
    There is thus no error in dismissing the original bill; but in dismissing the cross-bill there was error.
    Farr is entitled to a decree for possession,’ because it is agreed by the pleadings that possession shall accompany the. result of this suit, and he has filed his cross-bill for the possession.
    Farr is entitled to an account for the rents and profits on the cross-bill, because equity has jurisdiction on matters of account concurrent with courts of law. 3 Johns. Ch. R. 351, 361; 9 Johns. R. 470.
    Because the court having ol^ained jurisdiction on the question of title, will give full relief to the party entitled to it. 17 Johns. R. 384 ; 10 Johns. R. 587.
    Farr is entitled to have the deed made by the sheriff to Moody declared of no effect, thereby to remove a cloud from his title.
    I think that these errors can be corrected in this court and on this appeal. By the 9th section of H. & H. 532, this court is given full jurisdiction in this matter. If the decree of the court below shall be reversed, the supreme court shall proceed to render such decree as the court below should have rendered.
    That statute authorizes this court to make a final decree in the cause for Farr, directing among other things an account of the rents and profits, and removing the case back to the chancery court for the taking of that account, and for that purpose alone.
    
      W. Yerger, on same side.
    The rule of law seems to be well settled, that the equitable interest which a vendee has in property covenanted to be conveyed to him on the payment of the purchase-money, or the mere equitable interest which a debtor has in property assigned as a security on a resulting trust, cannot be had by an execution at law. I Johns. Ch. R. 52; 2 Johns. Ch. R. 312; 4 lb. 690; 3 Paige’s R. 219 ; lb. 478 ; 1 Bibb, 306 ; 1 A. K. Marshall, 174; 1 Yérger, 3 ; Ibid. 79; Harper Eq. 184; 17 Johns. R. 356; 4 Bing. 96; 4 Barn. &Ald. 684; 1 Hammond, 314. This point has been so ruled repeatedly by the chancellor, and has met the almost unqualified approbation of the bar of this State. Freeman’s Ch. R. 105; lb. 401. And a court of equity will not compel the vendor to convey to the vendee at sheriff sale, even upon his paying the balance of the purchase-money, because there was no interest subject to sale at law, and the vendor at sheriff sale consequently purchased no interest whatever in the property. Harper’s Eq. R. 184 ; 3 Paige’s R. 22; 8 Martin’s R. 706; 19 lb. 602. These decisions, made in accordance with well-established rules of law, clearly sanction the opinion of the chancellor.
   Mr. Justice Clayton

delivered the opinion of the court.

The first point in this case is the same with that determined in Goodwin v. Anderson et al. The remaining question is one of fact rather than of law, whether the judgment debtor in this case had paid the whole purchase-money.

Farr was the original vendor, and Moody the purchaser at execution sale under a judgment against Shields, the vendee of Farr. The bill is filed alleging payment in full by Shields, charging Farr with fraud, and praying a decree of title against him. The answer positively denies the payment of the purchase-money, states that the contract with Shields had been rescinded before the purchase of Moody, and the title bond delivered up. Whether the purchase-money has been fully paid or not, is thus an issue fairly submitted to the court.

The testimony is not very clear and explicit, nor is it free from all doubt. But before the complainant can obtain a decree, he must satisfy our minds that he is entitled to it. This he has failed to do. The answer is very direct and apparently candid in its explanations and statements, and whilst the testimony may cast some doubt over its averments, it falls short of that sort of conviction which would justify the rendering of a decree in opposition to it.

The decree of the court below is therefore affirmed.  