
    George W. Thompson vs. Isaac Wheatley.
    W. being in possession of land, to which he has a bond for title when the money is paid, pays the purchase money, and afterwards a judgment is had against him in favor of M., who sells the land under execution^ 6jjfn the judgment^ held, that W.’s interest in the land, was under the statute of this state (H. St,
    
    H. 349, § 29,) subject to seizure and sale under the execution at law. .
    Where a person has a bond for title to land, on payment of the purchase money and pays the purchase money, he is vested with such an estate in the land as under the statute (H. & H. 349, § 29,) might be sold under execution.
    Whether a person, with bond for title when the purchase money is paid, who has paid only part of- the purchase money, is clothed with such an estate as could be sold under execution. Query ?
    
    Where the interest in land, of a person, who, having a bond for title thereto, on payment of the purchase money, has paid the purchase money, is sold under execution against him, the purchaser at such sheriffs sale acquires the same equitable interest in the land which the judgment debtor had, but the legal title being outstanding, and the purchaser clothed with but the trust, he cannot maintain an action of ejec'tment for the land, but must come into equity to enforce his right.
    In ejectment, the legal title- alone is in issue, a perfect equitable title in the plaintiff, in the ejectment, will not prevail at law against the naked legal title in the defendant in the ejectment.
    Where a person purchases a legal title, with a knowledge of the outstanding equitable title, he is but a trustee for the holder of the equitable title.
    In error, from the circuit court of Tippah county. Hon. Stephen Adams, judge.
    John Doe, on the demise of Isaac Wheatley, sued Richard Roe, in ejectment, for lot eleven, in block seven, in the town of Salem, in the county of Tippah. t
    
    George W. Thompson was made defendant to the action. At the April term, 1844, of the court, a trial was had, and verdict rendered for the plaintiff. A motion for a new trial being overruled, the defendant filed a bill of exceptions, from which the •following appears to be the history of the case :
    The lessor of the plaintiff below read to the jury the record of a judgment rendered in the Tippah circuit court, in favor of H. S. Morgan & Co. against William and Joseph West, on the 29th of June, A. D. 1839; he also read the execution upon said judgment, the levy on the lot in controversy, and the return on the execution of the sale of the'same to Goldsmith Walker, for twenty dollars twelve and one half cents ; and the deed of the sheriff who made the sale to Walker, which deed was dated March 29th, 1843.
    „ The lessor \of .the plaintiff also read a deed from Walker and wife to himself áated the 24th of January, A. D. 1843, being a quitclaim to the property to him; to the reading of this deed objection was made, but it was overruled.
    William West, on behalf of the lessor of the plaintiff,
    proved, that he (the witness) had purchased the lot in controversy from one Charles P. Howard, before the rendition of the judgment in favor of H. S. Morgan & Co.• that he took Howard’s bond for title to the lot, and had paid him the purchase money in full before the date of the judgment, had taken possession of the lot and made improvements on it; that after the rendition of the judgment against him, and before the levy of the execution on the lot, he had sold the lot to the defendant, Thompson, in payment of debt due to Thompson ; that Thompson bought the lot with a full knowledge of the judgment; that he informed Thompson of it when he sold to him, whose reply was, that he would take the title direct from Kyle, and thereby evade the judgment lien. That he (witness) directed one Kyle, in whom the legal title was, to make the title to Thompson, which was done ; that he and his partner, Joseph West, were in failing circumstances when he delivered the title bond of Howard, which he held, to Kyle, and directed Kyle to make the deed to Thompson, who alleged, that owing to the condition of the title, the lot was not subject to execution. The witness further stated, that Howard had written on the back of his title bond, an order to one James S. Kyle to make a deed to the lot to the witness, and he (witness) ordered verbally the deed to be made to Thompson; the title bond of Howard was then given to Kyle, who, at the time of the trial, was in Texas; the witness knew nothing of the bond since. The defendant objected to the testimony of West, Avith reference to the bond and orders, but the objection Avas overruled.
    West proved .further, that Kyle had made a deed as directed to Thompson, who had immediately entered upon the lot, and that neither Walker or Wheatley ever had possession of the lot.
    Joseph West proved in substance the' same. William Ayres proved that the lot in controversy was part of a tract of land originally belonging to Joseph W. Mathews and James P. Peters, which they had laid out into town lots, and given the name of Salem to them. That there tvere ten stockholders, of whom Howard was one, and that the title to all the lots was made to James S. Kyle as trustee, to make titles to the purchasers and others; that complaint being made against the original stockholders that they Avere monopolizing too much, they received thirty other stockholders into the company, the original ten agreeing that each should retain one lot for himself; and that HoAvard, under this agreement, reserved the lot in controversy.
    On the part of the defendants, the deed from Mathews and Peters to Kyle, Avhich AAras a simple deed of bargain and sale, upon the back of which, Kyle had acknowledged the sale to be upon trust for him, to make titles to the different lots to such persons as Peters and MatheAVS might direct.
    ■ Peters testified that the lot in controversy was included in the land sold to Kyle, and by an agreement not in writing, among the original stockholders Avas allotted to HoAvard.
    The deed from Kyle to the defendant Avas also read, which concluded the testimony in the case.
    The defendant requested the court to instruct the jury, that “ a person out of possession of land held adversely, could not convey the same to any other person not in possession, and such deed Avould not authorize the purchaser to prosecute an action of ejectment in order to get possession.” The court refused the instruction, but gave in lieu of it, that it was a correct principle of law in general, but did not apply to a purchaser under execution.
    After the motion for a new trial was overruled, the defendant' below prosecuted this writ of error.
    
      The following causes of error were assigned :
    1. The court erred in permitting the deed from Goldsmith Walker and Cynthia Walker, of 24th January, 1843, to Isaac Wheatley, to be read in evidence before the jury.
    2. The court erred in permitting the statements of William West, as to the title bond given him by Charles P. Howard to the lot in controversy to go to the jury, the same not being produced upon the trial or proven to be lost or mislaid.
    3. The court erred in permitting the statements of said West, as to the orders in reference to said title bond to go to the jury.
    4. The court erred in permitting the statement of the witness, James P. Peters,- as to-the claim of the said Charles P. Howard to the lot of land in question, to go to the jury, the agreement by which said Howard claimed title not being in writing.
    5. The court erred in refusing the charge to the jury as requested.
    6. The court erred in giving the charge it did.
    
      7. The court erred in overruling the motion for a new trial.
    Price, for plaintiff in error.
    An action of- ejectment does not lie in this case. The only ground on which Wheatley could predicate his ejectment suit is, that Howard held as resulting trustee for West. It is essential to a resulting trust, that it must arise from some conveyance or deed. 16 Johns. Rep. 196. .Howard nor West, either of them ever had a deed. West had merely what title Howard had. Howard had none, consequently West had none. Where a person purchases and pays for land, but does not take a deed, the purchaser does not become deeded, but only acquires-an equitable interest, which is to be enforced in a court of equity, and not at law. 16 Johns. 196. Jackson ex dém. Seelye v. Morse. Howard stood to Mathews and Peters in the attitude of a purchaser who had not taken title. If Howard could not bring ejectment against Mathews and Peters, no person holding under Howard could bring ejectment against Mathews and Peters’s vendee. Our statute subjecting trust estates to debts and charges of persons, to whose use or benefit they were or shall be respectively holden or possessed. Poindexter’s Code, p. 459, contemplates a present and existing interest in the cestui que use or cestui que trust at the time of the judgment; and that, interest must be founded on a deed of conveyance in the trustee. It does not enlarge the statute of 29 Car. 2d. c. 3. Concerning uses all the authorities upon the construction of that act are in point in this case. But the statute extends only to trusts which are raised by or result from a conveyance, and not to constructive trusts, or those merely covenanted or agreed to be raised. The equitable interest which an obligee has in the land covenanted to be conveyed to him, is not such a trust or interest as is subjected to execution at law by the provisions of said statutes. Thomas Shuts v. Harder et al., 1 Yerg. 4. In that the question is raised and fully decided, that a title bond does not give such an interest in land as. is subject to execution at law.
    The authorities relied upon of 17 Johns. 353, and others, are not in point, as all of them presuppose a conveyance by deed, upon which a use or trust could rest.
    
      D. C. Glenn, for plaintiff in error.
    1st. The first assignment will be noticed in arguing the 5th, the error 'being the same in both.
    2d. The court clearly erred in admitting any evidence as to the title bond spoken of by witness, unless some reason was given for its non production upon the trial, and could only be justified in receiving the parol proof as to its existence, by a showing that the bond was lost or mislaid. This will not be denied, and is conclusive of both 2d and 3d assignment.
    3d. The next error complained of is, the court permitted Peters to testify as to an agreement in reference to the title to the land in question, which agreement was not in writing, and therefore not admissible in an action of ejectment. The object of the introduction of the testimony, was to set up a title in a party through whom lessor of plaintiff in ejectment derived his claim, which could not be done. 6 Cowen, 751; 6 John. R. 21.
    4th. The court erred in refusing the charge asked for. The charge was correct in law, and applicable to the facts of the case, viz. that a person out of possession of land cannot convey the same when held adversely, so as to enable the purchaser to obtain possession by action of ejectment. This principle is long established, and clearly set forth in the following, among many other similar authorities. Coke Litt. 347, 369 ; 2 Scho. & Lef. 65, 105; 2 Caines, 183; 5 John. 489; 9 John. 59; 3 Call', 475; 1 Munf. 162. The possession in this case was clearly adverse. The title of lessor of plaintiff in ejectment, accrued at sheriff’s sale, and under the deed of the sheriff. At that time the land was in possession of defendant, by virtue of a deed prior in date to the execution sale.
    5th. The court erred in giving the charge it did.
    1st. Because the above principle is applicable to a purchaser at sheriff’s sale as well as others. The only distinction that I can find as to purchaser at sheriff’s sale is this, that no one claiming any title-by virtue of an act on part of defendant in execution, can set up possession thereby acquired, as adverse to the rights of purchaser at such sale. That it goes no further, is clearly to be inferred from the case of Jackson v. Collins, 3 Cowen, 95, though the point is not expressly, decided. We are not in that position, claiming as we do under a deed from Kyle, and not through or under defendant in execution.
    • But admit that the principle is not applicable to purchaser at sheriff’s sale. The plaintiff in ejectment was not the purchaser at sheriff’s sale, and cannot claim the benefit of the principle. The purchaser had conveyed his interest acquired at a judicial sale; the thread was broken, and a sub purchaser stands upon the same footing as all others in support of this position.
    2d. Because it was not asked for, and the court stepped beyond its duty in giving it. H. & H. 482, c. 40, § 9.
    6th. The court erred in overruling the motion for a new trial. All the facts of the case show the verdict to be erroneous. Defendant in error derived his title from Walker, purchaser at sheriff’s sale. The title of defendant in execution is based upon a title bond .of Howard. Howard’s title rested upon a simple agreement in parol. The purchaser at sheriff’s sale only took such title as defendant in execution had. This title, even if the proof objected to sustaining it is ruled admissible, is merely an equitable one, and doubtful even then, could only be enforced in a court of chancery, the legal title being in Kyle, trustee for Mathews and Peters, the original owners of the landj by virtue of a deed from whom we claim possession. Such being the case, plaintiff in ejectment could not recover. To recover in ejectment, the lessors of the plaintiff must have a legal title in the land, at the commencement and trial of the cause. 5 Har. & John. 164. An equitable claim cannot prevail against the legal estate, especially if such claim be doubtful. 2 John. Cases, 321; 9 Cowen, 88. In the action of ejectment, we must look steadily to the legal title. C. J. Kent, 9 John. 60; Adams on Eject. 32, and cases cited.
    The facts of the case from the record, and the law stated above, show conclusively, as I humbly think, that there was gross error in the court below, and upon either and all the assignments, I ask a reversal.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of ejectment, in the circuit court of Tippah county. Both parties claimed title under one West.

The title of the plaintiff, in whose favor there was a jndgment in the court below, was thus derived: In June, 1839, a judgment was rendered against West in favor of Morgan & Co., under which the lot in controversy was sold, by execution, to one Walker, in March, 1841, and conveyance made by the sheriff to him. Walker conveyed the lot to Wheatley, the plaintiff in ejectment, in January, 1843. The plaintiff proved by West that he had bought and paid for the lot, and made improvements upon it, before the date of Morgan’s judgment. That, being in failing circumstances, he had, after the judgment, sold the lot .to the defendant, Thompson, to whom he was indebted, but that he informed him of the judgment, at the time. Thompson said he would take title direct from Kyle, in whom the legal title to the lot was vested, so as to avoid the judgment lien. West had no deed, but only a title bond, which he assigned to Thompson. Thompson procured a deed from the original vendor, and produced it upon the trial, in opposition to the claim of the plaintiff. The question thence arises, as to the plaintiff’s right of recovery.

As West had paid the whole purchase-money, he had an equitable title to the lot, at the time of the judgment against him. Was that title the subject of sale, under execution? Our statute enacts, that “ estates of every kind, holden or possessed in trust, shall be subject to like debts and charges of the persons to whose use, orto whose benefit they were or shall be respectively holden or possessed, as they would have been subject to,' if those persons had owned the like interest in the things holden or possessed, as they own or shall own in the uses or trusts thereof.” H. & H. 349, sec. 29. We think that the equitable title of West, upon full payment of the purchase-money, was such an estate, as, under this statute, might be sold under execution. This estate became vested in- the plaintiff in ejectment, by his purchase from Walker, who bought at the sheriff’s sale. Bogert v. Perry, 17 Johns. 350; Jackson v. Walker, 4 Win. 464. The statute authorizes the sheriff, after his sale, to convey to the purchaser, all the right, title, interest and claim of the defendant, in and to the lands sold, either in law or equity. H. & H. 644. The sheriff’s deed conveyed the trust estate to the purchaser, and the defendant in ejectment is but a trustee for him.

There is, in our minds, no doubt of Wheatley’s right to recover, the only doubt is, whether his remedy must be pursued at law or in equity. In New York the remedy seems to be pursued indifferently, in either court; the case cited above from Johnson, was in chancery; that from Wendell, at law. It has been holden, in this state, that where one person purchased land by the direction and with the money of another, but took the conveyance to himself, a trust resulted to the owner of the money, of such a character, that he might recover the land at law. Brown v. Weast, 7 How. We think it of dangerous tendency to give any farther latitude or extent to the doctrine. In ejectment the legal title alone is regularly put in issue. According to the facts in this record the plaintiff has a right to recover in equity under his purchase; yet we cannot, with propriety, confound the distinctions between the courts of law and courts of equity. The latter tribunal is, in general, the only one competent to take cognizance of equitable titles.

To mark, with some degree of precision, the extent of this decision, we think it proper to say, that it is made to apply only to a case in which the whole purchase-money has been paid, at the time of the sheriff’s sale. . Whether an execution sale would be good, where only part of the purchase-money has been paid by the defendant in execution, seems to be matter of doubt upon the authorities, and we reserve any opinion upon this point for the present. That precise case is now before us, and still under consideration.

The judgment in this case is reversed, and the cause remanded, that the plaintiff may dismiss, and proceed in equity if he chooses so to do.  