
    *Nathaniel Gist, et al. vs. Abraham McJunkin, et al.
    
    The sheriff sold a tract of land under execution, which was purchased by a third person, against whom the owner subsequently filed a bill in Chancery, to set aside the sale on the ground that the execution was satisfied. The Chancellor, upon examining the case, thought the fact of satisfaction was proved, and that the purchase showed it; he, however, referred it to the commissioner, to inquire as to that fact, and decreed, if found for the complainant, that the sale and deed should be set aside ; otherwise, that it should stand. Subsequently, the parties compromised, and the purchaser’s money and costs were refunded, and he, by the direction of the owner, J. T. McJunkin, conveyed the land to J. A. McJun-kin. It was held,
    
    That the Chancellor’s decree was provisional.
    That the sheriff’s sale and deed still subsisted.
    That the legal title was still in the alienee of J. A. McJunkin.
    That a sheriff’s sale under an execution purporting to be satisfied, when the sheriff has in his office, at the time of the sale, a subsisting execution, is not void; and the plaintiff in the subsisting execution is not entitled to have the land re-sold, but is only entitled to the proceeds arising out of the sale.
    Before ButleR, J., at Union, Extra Term, 1841.
    This was an action of trespass to try titles. Both of the parties, plaintiff and defendant, claimed under John T. McJunkin, through sheriff’s sale. The evidence on the part of the plaintiff, in the first instance, was as follows:
    
    Records in the case of Nathaniel Gist, administrator of Jas. Dugan, vs. Jno. T. McJunkin. Judgment signed 28th April, 1837, for $1275 ; fi. fa. 1st May, 1837. Entry on fi. fa. by sheriff. Levied on four hundred acres of land, of J. T. McJun-kin, more or less, whereon James McJunkin now lives. Deed from R. McBeth, sheriff, to plaintiff, dated 14th September, 1837. The deed describes the land, as bounded by Thomas Sorter and A. McJunkin, and others, and as the land whereon John T. McJunkin formerly lived. The foregoing proceedings and judgments were instituted to revive a judgment obtained by James Dugan, in bis life time, against J. T. McJunkin -,fi./a. dated October 16, 1826. The plaintiff here closed, having proved a trespass, and defendants offered the following evidence of title :
    Records of Ordinary vs. Jno. T. McJunkin. Judgment dated 28th March, 1826, for $440; fi. fa. same day ; levy of land in controversy, entered onyf. fa., in April, 1826. *Deed from John Anderson, sheriff, conveying the land to William M. Thomson, in consideration of $84. Besides the above, another record of Robert Malone vs. John T. McJunkin, was introduced. Judgment, 12th April, 1833, for $150 ; entry of levy on the same land by sheriff; deed from sheriff, B. Johnson, to Abraham McJunkin, the defendant, dated 10th December, 1833, conveying three hundred and sixty-seven acres of land, more or less.
    
      Evidence in reply: — Proceedings in Chancery, in the case of John T. McJunkin vs. William M. Thomson and John Bates, sheriff. The main object of this bill, was to set aside the sale to William M. Thomson, before mentioned, upon the ground, that the judgment under which the sale took place, had been satisfied before the sale. Chancellor Harper, at June Term, 1829, heard the case upon the bill and answer. By his decree, which was given in evidence, the Chancellor was satisfied from the evidence then before him, that the proceeds of property, sold under a fi.fa., against John T. McJunkin, was applied to the payment of that judgment, and that if the application in fact had been made, the judgment was satisfied ; but not having the fi. fa. before him, he did not make a final decision on the matter, but referred it to the commissioner, to report whether or not the judgment had been satisfied, and that upon the coming in of the report offering that fact, the judgment should be marked satisfied, and the sale to Thomson set aside, &c. But if it should appear, on the reference, that the judgment had not been satisfied, which was to be made appear by the defendant being the acting party, then the bill to be dismissed without cost. I have not the decree before me, but as it is important, it can be referred to. After the decree was pronounced, and when I supposed it was pretty well ascertained that the deed to Thomson would be consulted, the following arrangements were made by Thomson and two of the McJunkins, John T. & Jos. A.
    William M. Thomson, who was sworn as a witness, gave this account of the transaction — that either he proposed to John T. McJunkin, or McJunkin made the proposal to him, that the money paid by Thomson, and the cost which he incurred, should be refunded to him, and that he should reconvey the land. For ^le PurPose °f securing to himself the *money thus to be refunded, he took a confession of judgment from Jos. A. McJunkin, (son of John T.) John T. McJunkin, and Benjamin McJunkin, for $117. Thereupon, John T. McJunkin presented, in his own handwriting, a paper purporting to be a conveyance of the land from Thomson to Jos. A. McJunkin, in consideration of $1500, with a clause of general warranty. The witness refused to sign the deed, but finally executed a deed of the land in John T.’s handwriting, containing the true consideration, and without clause of warranty to Jos. A. McJunkin. By a memorandum of the execution, it appears that the amount of confession was paid to Thomson by John T. McJunkin.
    Joseph A. McJunkin, who had conveyed all his interest in the land to Abram, was sworn, and gave the following testimony:
    That on the day the land was advertised to be sold, under the Malone judgment, he met with his uncle Abram, who said to him, I am afraid your title from Thomson is not good. I am willing to give you, for the benefit of your family, $1200 for the land, but I am afraid 1 cannot get good titles from you; you must forbid the sheriff’s sale, and I will bid and take the titles from the sheriff. The witness said he agreed to this arrangement, and that when the land was offered for sale, he forbid the sale, saying, that whoever bought the land, would buy a lawsuit. The land was set down in the sheriff’s books to John Rogers, but the titles was made to Abram McJunkin. The witness said that Abram never had paid him any thing for the land; he may have paid the amount of the Malone judgment, (about $150;) that judgment was recovered on a joint and several note, signed by his father and himself; that he was security on note ; and that a separate judgment was recovered against each maker; the land was knocked-off to Abram, or for him, at $10, (it appeared here, that the plaintiff had got the land conveyed to him, on a bid of $16.) The witness said, that one Gregory had offered him $1200 for the land, if he would make him good titles. On his cross-examination he said, the money that was paid to William M. Thomson, was his own, although his father may have paid it. Benjamin Gregory said he was anxious to buy the land, and would have given $8 or $10 an acre ; offered Jos. A. McJunkin $1200, if he would make good rights. On the day *the land was sold, under the Malone judgment, witness asked Abram about Jos. A.’s title. Abram said he did not think it good, and advised witness not to bid, or that he would'involve himself if he did. No one bid at the sale but Rogers, and he made but one bid. The fact that the land was represented to be in dispute, made it sell for less than its true value ; the land was valuable.
    B. Johnson, the sheriff, said he advertised and sold the land, without any particular instructions from Malone. There was an endorsement on the execution to proceed forthwith, and he proceeded under this instruction and the execution itself.
    L. B. Geter heard Abram McJunkin say, that the land had been bid off by John Rogers, but it was for himself.
    Daniel Thomas said he came to the sale to bid for the land ; regarded it valuable ; that just as the sale was coming on, he inquired of Rogers whether there was any incumbrance on the land. Rogers replied, that any one who bought it, would buy a law suit.
    This evidence was objected to on the part of the plaintiff, and admitted by me, on the ground, that the connection in the transaction, alleged to be fraudulent, between Abram McJunkin and Rogers, was abundantly proved.
    Dr. Jeter said, that before the sale, he saw a good deal of intercourse between Abram McJunkin and Rogers ; they seemed to be in constant conversation, &c. In going home after the sale, he and Abram and others in conversation, Abram said he was sorry he had bought the land. The witness said the land was worth from $10 to $15 an acre.
    William Davis, heard the defendant say the same thing at another time.
    Jos. A. McJunkin, recalled. About seven days after Malone’s sale, he made a deed to Abram, in consideration of $1200 ; no part of which he has received.
    There were several witnesses, who said they had often heard Abram McJunkin say, that the judgment of Ordinary vs. John T. McJunkin, was satisfied before the sale under it.
    
      Evidence on the part of the defendant: — John Ward said, he saw a note given by Abram McJunkin, to Jos. A. McJunkin, for $600, which witness regarded as part payment of the land ; saw it in John T. McJunkin’s possession ; saw Abram sign a note, to Mrs. John T. McJunkin, for $200, for her dower.
    
      * Mr. Kesler, said he was present when Jos. A. executed the deed to Abram. At the same time, Abram gave his note for $600, and paid some money, but how much, witness could not say. The evidence here closed.
    Then, after full argument, the case was submitted to the jury. I held that Judge Harper's decree was not a final judgment, which, of itself, set aside the sale of Thomson. Hut the question was still open, whether John T. and Jos. A. McJunkin, by combination, have procured titles to be made by Thomson to Jos. A., at a less price than the real value of the land, with a view to defraud John T.’s creditors. This question was distinctly submitted to the jury, with a full explanation of all the circumstances which could effect either side. So of the sale under the Malone execution. This was a question of feet, which belonged to, and was submitted to, the jury.
    What I have said embraces all the questions involved in the case or growing out of my charge. There is no foundation for second ground of appeal. I suffered the declarations of Abram McJunkin to be given in evidence, by witness sworn before me, and said, that although the decree of Chancellor Harper must be received, nevertheless, the evidence recited in it, was not evidence received in this case. This, however, was unimportant, as the same evidence was given before me of Abram’s declarations. I do not understand the meaning or reference of the fifth ground. I will not speak of all my omissions, but I say, that I never instructed the jury not to believe Jos. A. McJunkin; for, on the main points of his testimony, I thought he told the truth. The plaintiffs did not recover as much land as that described in the declaration, their verdict was for the land whereon John T. McJunkin lived, and they can take no more than that under a writ of habere facias possessionem, as it regards the rent. The proof was that defendants had been cultivating the land, about forty acres, for five years ; and witness said, land would rent from $2 to $3 per acre. I cannot now say, what was the estimate of the jury ; they found for the plaintiffs, the land and $300 damages. I was willing that the jury should have found less damages, as from Chancellor Harper’s decree, it appears to me that the McJunkins had been hardly used, in a way that approached oppression ; and as I said to the jury, I wish they had pursued a proper mode to relieve themselves.* Upon the whole, my sympathy was with defendants, but I submitted the case without prejudice to the jury.
    The defendants appeal, on the following grounds.
    GROUNDS OP APPEAL.
    1. Because the title of William Thomson being legal and valid, he had a perfect right to give or convey the land to whom he pleased. And Joseph A. McJunkin, having paid his own money for the title of Thomson, had as perfect a right as Thomson. And the Court erred in charging the jury that they might find the conveyance from Thomson to Joseph A. McJunkin, fraudulent and void.
    2. Because the Court permitted what the defendant, A. McJunkin, said in the case in Equity, of J. T. McJunkin vs. Bates & Thomson, to be given in evidence, to defeat the title of Thomson, and consequently, his own title, when, according to the decree in the case, the title was not set aside, and is yet good and valid, and the Court charging the jury upon this evidence against the defendants.
    3. Because the purchase of A. McJunkin, under the Malone judgment, was good and valid, and the Court erred in charging that the acts of A. McJunkin and J. A. McJunkin, might be considered fraudulent, and vitiate the sale, when they had no agency in procuring the sale.
    4. Because the Court permitted the declarations and advice of Mr. John Rogers, to be given in evidence against the defendants; and held, and took for granted, that Rogers was the agent óf A. McJunkin at the time they were made.
    5. Because the character of Joseph A. McJunkin was attacked by the testimony of two witnesses, and the evidence of his own deed ; and the Court omitted charging the jury upon this part of the case, or to give them any instructions, and said witness was unworthy of belief.
    6. Because the defendant, A. McJunkin, is a purchaser for a valuable consideration from J. A. McJunkin, without notice of any fraud between J. A. McJunkin, J. T. McJunkin, and William Thomson, if there was any.
    7. Because the jury have not found the land sued for, nor the land described in the plaintiff’s deed, and they have given damages for the rent or use of the land, anterior to the time when the plaintiffs acquired a title.
    -because the plaintiff, having the oldest judgment, will recover the proceeds of the former sales, and obtain the land also.
    9. Because the verdict is contrary to law and evidence.
    
      
      Herndon, for the motion
    on the first ground. Title of William M. Thomson. Is this title a good one ? It is contended that this title is set aside by Chancellor Harper’s decree, but by good authority, he hoped to show that it was not set aside.
    It was not necessary for the defendants to go on and hold the reference under Chancellor Harper’s decree, but it was the duty of the complainants to do so; the onus was on them.
    The decree of the Chancellor in the bill in equity, was not final between the parties. There are two kinds of decrees in equity, final and interlocutory. And this decree will be found to be interlocutory.
    It is immaterial as to the defence in this case, whether the title be in the defendant or in others ; it is sufficient to divest the plaintiff of his right, to show a better right than his; one in another. Harrison vs. Hollis, 2 N. & McC. 578.
    2d Ground. A purchaser for a valuable consideration has a good title, though the party from whom he purchased obtained his title by fraud. 10 John. 185. Also, S. P. Com. Law Rep. 35.
    
      Dawkins, contra.
    The questions of law were decided'by the Court in favor of the defendants, and the only questions left to the jury, were those of facts.
    The question for the Court is, whether Thomson’s deed was a valid one or not.
    A man’s declarations are admitted, upon the ground that he will swear nothing against himself.
    3d Ground—12 Wendell Rep. 41.
    
      Thomson, same side. We go entirely against the title of William M. Thomson, and declare, that by the Chancellor’s decree, Thomson’s title was completely nullified. Cited McCool vs. McClarey, Harp. Rep. 483.
    *A. McJunkin was estopped by the Chancellor’s decree, and any person attempting to commence an action, under Thomson’s deed, would be liable to attachment for a contempt.
    Thomson, though a defendant to the proceedings in Chancery, in this action his position is changed, and he becomes the actor. 1 Story Eq. 27 and 28; also, commented on the case, Harrison vs. Hollis, relied on by the opposite counsel.
    
      Thomas v. Ashby vs. Jeter. 1 Hill Rep. 380; 10 John. 223.
    
      Herndon, in reply.
    Obliterate the title of Abraham and Jos. Mc.Junkin, and still the title of Thomson is good, and these plaintiffs cannot recover.
    The declarations of Abraham, since the sale, cannot effect the title of Thomson, and could not divest him of his rights.
    There was no evidence on the trial of the cause on the circuit, to attack the validity of Thomson’s deed.
    If the titles of Joseph A. and Abraham are void, it does not vest the title in John T. McJunkin again, while Thomson’s deed is good.
    If the sale of the Sheriff, under the Ordinary’s execution, to Thomson, is not good, the execution of Dugan was in his hands, and that is conceded to have been a good execution, and the recital of a void execution is no ground to effect a sale, when the Sheriff had a valid execution in his office. Cited 3 M‘C. 251; id. 291, as to damages.
   Curia, per

O’Neall, J.

According to the view which I take of this case, the legal title to the land iti dispute, is in the defendant, Abraham McJunkin, and the plaintiffs are not entitled to recover.

Chancellor Harper’s decree, of June, 1829, in the case of John T. McJunkin vs. John Bates & others, was provisional merely. If, upon the coming in of the commissioner’s report, it appeared that the execution of the Ordinary vs. John T. McJunkin, (under which his land had been sold and purchased by Thomson,) was satisfied, then the sale and the deed were to be set aside; but if the fact did not so appear, then the bill was to be dismissed. No one can pretend that such a decree could operate beyond its terms. Its effect depends upon a fact, not then, but afterwards to be, ascertained. *If that fact never was ascertained, it follows, that the decree can have no effect; so far as that case was concerned, none, save the parties before the Court had the right to complain, if the case rested at the point to which the decree reduced it. They chose, instead of pursuing the litigation, to compromise. The money paid by Thomson, on bis purchase at the sheriff’s sale, and the costs which he had incurred were secured to be paid to him, by the note of Joseph A. McJunkin, John T. McJunkin, and Benjamin McJunkin, and thereupon he, by the consent, and indeed by the direction of, John T. McJunkin, conveyed the land to his son, Joseph A. AlcJunkin.

The legal effect of this arrangement, was the same as that which would result from a discontinuance at law. It was a withdrawal of the case in equity, while something yet remained to be done, in order to ascertain and fix the rights of the parties.

This left the sheriff’s sale and deed to Thomson, a subsisting and legal divestiture of the estate of John T. McJunkin. Until they are set aside for fraud proved, and not merely conjectured, we are bound to give them effect. In general, a debtor is the only one who can complain about a fraud committed on his right, by a sale under execution. Still, if he was a party consenting to a fraudulent sale of his property by the sheriff, Ms creditors might have relief against it. The ground on which the deed to Thomson was assailed in equity, was, that the execution under which the sheriff sold, was satisfied. This, if true, and there was no other subsisting execution in the sheriff’s office at the time the land was sold, would render the sale void; and it is possible, if the debtor did not think proper to question such a sale, that Ms creditors, having no other remedy, might avail themselves of the objection.

But certainly these plaintiffs do not occupy that position. The judgment under which they now claim was recovered on a judgment in favor of James Dugan against John T. McJunkin, on which there was an execution lodged in the sheriff’s office, on the 16th October, 1826. The sheriff’s sale to Thomson was subsequent; and hence the sale would be referred, if the ordinary’s execution was satisfied, to Dugan’s execution, and Ms judgment would be entitled to the proceeds of the sale, and not to a right to set up the satisfaction of the elder execution, and claim re"se^ the land. This, it seems *to me, leaves the plaintiffs without any ground on which to stand. For McJunkin’s title being conveyed to Thomson, and they being so situated in the derivation of their title that they cannot set up the supposed satisfaction of the execution, under which the sheriff sold and conveyed, it would seem to follow that the sale to, and purchase by them, of the interest of John T. McJunkin, in the land, was the sale and purchase of nothing. But it is said that John T. McJunkin paid his son’s note to Thomson. If this be so, still it can have no effect to re-vest in him a title to lands of which he had legally been divested. That could only be done by deed. If the whole arrangement between him and his son had been fully proved to be, that he should pay the money to Thomson, and that the son should hold the land for his use, the utmost which could be said of it would be that it was a use unexecuted by the statute, and remained, therefore, a mere trust in equity, which this Court could not notice. Harrison vs. Hollis, (2 N. & McC. 578.)

These views make it unncessary to notice very particularly the subsequent matters in this case. For Joseph A. McJunkin having the legal estate in the land, could convey it to Abraham McJunkin, and his title would be only incumbered by the trust (if in fact there was any,) in favor of John T. McJunkin. He alone can avail himself of that. There could be no fraud on the rights of creditors in the sale under Malone’s judgment. For John McJunkin had then no estate in the land. But upon the facts, I confess that I am unable to discover any fraud on the part of Abraham McJunkin. He told his nephew, on the day on which the land was sold under the Malone judgment, that he was afraid his title to the land was not good, but as he was willing to give him $1200 for the benefit of his family, he directed him to forbid the sale, and he would do so and take the sheriff’s title. This was an indirect mode of legalizing a doubtful title, but still a valuable money consideration was to be paid, and was paid. For although he paid Joseph A. personally, nothing, yet he paid the Malone judgment, debt, interest, and costs, exceeding $200.

Wood proved notes given by Abraham, on account of the land, to the amount of $800 ; and Kesler proved that when the deed was executed by Joseph A. to Abraham, that a note of $600 was given by Abraham, and some money paid. ^Taking all these facts together, I should infer that the consideration of the $1200 was fully paid ; and this conclusion is much strengthened by the fact that John T. McJunkin lived upon the land some years after Abraham bought, and then removed to the West, leaving him in the sole possession and enjoyment. Neither he, nor Joseph A McJunkin, has, so far as we are informed, complained of any fraud upon them, as committed by Abraham McJunkin, and if the case stood alone upon the facts, I should be slow to conclude that the consideration of $1200 had not been paid. But upon the law, for the reasons which I have previously given, I am clear the plaintiffs are not entitled to the verdict which has been found for them.

The motion for a new trial is granted.

Gantt and Richardson, JJ., concurred. 
      
       3 Rich. 119; 1 Rich. 21; 1 Hill, 415. An.
      
     