
    GENERAL COURT,
    (E. S.) APRIL TERM, 1799.
    Moncrieff vs. Goldsborough.
    Assumpsit on a special agreement for 1751L current ¡money, for certaip lands sold by the plaintiff, and one Orookshanks, since deceased, at auction, ami str uck off to the defendant as the highest bidder, on the 23d of March 1792. The defendant refused to comply w.th the terms of the sale» The general issue pleaded.
    The following {nets appeared in evidence: That fhs plaintiff and Orookshanks were appointed trustees by the will of A. Patiison to make sale of his real estate. In pursuance, of the said power, on the 23d of March 1792, having given public notice, they offered the lands in question at public sale, declaring that from the title papers it appeared that there were 582 acres of land, more or less. That they would not sell it by the acre, but fay the quantity more or less; and that, they would not warrant any particular quantity. That &ustavus Scott, esquire, the adviser and counsel of the, plaintiff, hid the sum of 1750k and the defendant bid 1751L The auctioneer bid i 760Í. That the defendant permitted the last bid tobe withdrawn, and the Sand tobe struck oír to him as the highest bidder; which was accordingly done» Upon examination of the papers, it appeared by some of them that there was a deficiency of 40 or 50 acres, and that one of the deeds to Patti son had not been recorded, although executed according to law. The de» fendant then refused to comply with the terms of sale; hut agreed to submit the case to the chancellor as referree, and for that purpose a statement of facts wan reduced to writing and signed by both parties. The chancellor refused to act, and the plaintiff, as survivor oí Orookshanks, instituted the present artion.
    It also appeared in evidence, that the defendant was a practising attorney, and had liad the title papers in his possession for examination previously to the sale, and had expressed,Ids satisfaction as to the title, That Cr> 
      favus Scott, esquire, was a by-bidder at the sale, wild declared be did not. want the land, and advised the defen(¡ant t0 purchase it.
    
      Martin, (Attorney General,) W. B. Martin, and Bay-hj, for the plaintiff.
    
      Key and Hammond, for the defendant.
    1.The defendant’s counsel stated for defence, 1st. That the plaintiff offered the lands for sale to the highest bidder, and stated the quantity to be 582 acres more or less; whereas it appeared by the title papers that there was less. 2d. That there was a by-bidder; and 3d. That there was a defect in the legal title, one of the deeds not having been recorded, which was a concealment of circumstances to deceive the defendant; and as this was an equitable action the plaintiff must come into court with clean hands.
    Key, for the defendant, made this point to the court: "Whether the employment of a by-bidder by the vendor at an auction is not such a fraud as will set aside the sale? He cited Cowpcr, 395¿ 1 Esp. JV“. F. 15, 16.
    Chase, Cli. J. The court are of opinion, that if the jury shall be of opinion that Gnsiavus Scott was employed by the trustees, or either of them, as a by-bidder at the sale of the lands in question, without his being known by the defendant to be a by-bidder, previous to the landá being knocked down to him; and that Scott did bid at the sale with a view to increase the price of the lands for the benefit of the trustees, the sale is void.
    2. Key then prayed the direction of the court to the jury, that as the testator A. Pattison, had only an equitable interest, which was not disclosed by the plaintiff at the time of the sale, the sale was therefore void in law, and ought not to be enforced. He cited 5 Burr. 2639. Pr. Chan. 57b. Esp. 115, 11.
    
    Chase, Ch. J. The. court aro of opinion, that as Archibald Pattison had an equitable title in part of the; lands sold, under the deed which was not recorded, it was such an interest that a legal title might be obtained without the land being subject to any debts or incumbrances created by the vendor subsequent to the time of the execution of the deed, and that his title cannot be defeated unless by a conveyance made by the vendor to a purchaser without notice of such equitable, in- • terest. The remedy is by bill in the court of chancery for a specific execution of the. contract, (considering the deed not recorded as such contract.) The court ace also of opinion, that if at the time of setting up the lands for sale, as containing 582 acres more or less, the trustees knew the lands were much deficient of that quantity, and did employ a by-bidder to enhance the price of the lands, without his being known by the defendant to. be a by-bidder previous to the lands being knocked down to him; and that the by-bidder did bid at the sale with a view to increase the price of the lands for the benefit of the trustees, that the same were conclusive evidence of fraud.,
   Yebuíot. and judgment for the plaintiff.  