
    HENRY WILLIAMS’ EX’RS vs. SUSAN E. WILLIAMS.
    Where a tract of land is bought for a wife, and the proceeds paid partly out of the proceeds of her own real estate, to the sale of which she assented only on condition that the proceeds of the sale should be so invested, and part of the price was paid by her husband ; Held, that so far as the proceeds of her estate went to the payment of the price, she was a cestui que trust, and, as to the residue, her husband — and that this, being a mixed trust, was not subject to execution.
    The cases of Gorman v. Rich, 1 Ire. 553, and of Temple v. Williams, 4 Ire. Eq. 39, cited and approved.
    Cause removed from the Court of Equity of Greene County, at the Spring Term-, 1849. ,
    The bill alleges, that one Guilford Murphy, being much indebted, purchased of one Hooker a house and lot in the town of Hookerton, for the sum of 02750, and to evade the payment of his debts, procured the said Hooker to make the deed to Hannah Murphy, the wife of the said Guilford: That afterwards, many executions issued against the said Guilford ; among others an execution in favor of one Loften for $700, and another in favor of one Smith for $132 12 cts; which executions were levied upon the house and lot, as the property of the said Guilford ; and that, at a sale made by the sheriff, the house and lot were purchased by Henry Williams and John W. Taylor, who took a deed therefor. The plaintiffs are the personal representatives and heirs at law of the said Williams and Taylor. The defendant is the heir at law of the said Hannah Murphy. The prayer of the bill is for a conveyance from the defendant to the plaintiffs, and a surrender of the possession of the house and lot to them.
    The answer avers, that the house and lot were purchased for Hannah Murphy and paid for with her funds, which were raised by a sale of two tracts of land belonging to her, with the express understanding, that the pro* ceeds should be invested in the purchase of the house and lot, and the deed taken in her name ; she positively refusing to join in a conveyance of her land, unless the price was invested in the purchase of the house and lot and the deed made to her, which was accordingly done, the deeds from her husband and herself to the purchasers of the land being executed at the same time, that the deed was executed to her for the house and lot. Guilford Murphy died before the institution of this suit.
    
      Mordecai, for the plaintiffs.
    
      J. H. Bryan and Hnsted, for the défendants.
   Pearson. J.

We are satisfied from the evidence, that much the larger part of the price of the house and lot was paid out of the funds, arising from the sale of land belonging to Hannah Murphy; and the deed was fairly made to her, in pursuance of an express understanding, that the proceeds of the sale of her land should be so invested and the title made to her.

The case falls directly within the decision of the case of Gorman v. Rich, 1 Ired. 553. The. statute, 13th Elizabeth, does not apply ; for the conveyance is not made bj' the debtor of land-, before owned by him, to defraud creditors, but the conveyance is made by a third person to a trustee for the debtor, to enable him to avoid the payment of his debts to the amount of the price paid by him. If the statute applied, so as to make the conveyance void as to the creditors, the title would be in Hooker, the vendor: which would not serve the plaintiff’s purpose.

Guilford Murphy had not such á trust estate, as was liable to execution sale by the act of 1812, ch. 45. sec. 4 ; for, Hannah Murphy did not hold purely in trust for him, but held the legal estate for herself, so far as the part of the price was paid by her,and in trust forGuilford Murphy, so far as the part of the price was paid by him. It was, then, a mixed trust, and not the case of “one person seized simply and purely for the debtor, without any beneficial interest in the party having the legal title, or in any other person, except the debtor in tbe execution which kind of trust estate alone can be sold under execution by this provision of tbe aet; for the sale passes the legal, as well as the equitable estate, and the purchaser having the legal estate may bring ejectment, and cannot call upon a Court ofEquity for a conveyance of the legal title, because he has it. already, and is not without remedy at law.

This case is plainly distinguishable from the case of Temple v. Williams, 4 Ired. Eq. 39. In this the contract was executed, the funds, arising from the sale of the wife’s land, were actually paid to the vendor of the house and lot, and the deed was made to the wife, so as to vest tbe legal title in her. In that, the contract was executory. After the husband purchased the land and had taken a conveyance to himself, the wife consented to a sale of her land, with the understanding, that the husband should apply the proceeds to the payment of the price of the land, purchased by him, and make her a deed for a ratable part of the land, including the house, &c. It was a parol agreement for the purchase of land, voidable by the statute of frauds; and although a husband and wife are allowed in Equity to deal with each other, their agreements, like all others, “ to sell or convey land” are void, unless put in writing. When the agreement is executed and the deed made to tlie wife, the statute of frauds has no application,

Per Curiam.

The bill dismissed with costs.  