
    Banks vs. Wilks.
    Willis obtained a decree in chancery “that the title to slave, George, be vested in complainant on the 9th day of July, or at any time thereafter, by his paying to James Tate one hundred and thirty dollars, the amount of the lien of said Tate on said slave:” Held, that said decree vested the legal title to the slave in Wilks, and that he could maintain an action for the seizure and conversion of said slave by a third person without a payment or tender of the money specified in the decree to Tate.
    Benjamin Wilks instituted this action of trespass on the case on the 10th day of September, 1834, in the circuit court of Carroll county, against Thomas Banks.
    The facts of the case are as follows: In July, 1830, the plaintiff, holding a note of hand upon one Haywood Bledsoe for the sum of seven hundred dollars, assigned the same to his brother, Jesse Wilks, and requested him to purchase a negro man, George, therewith, from said Bledsoe for him. Jesse Wilks did purchase the boy and entered a credit on the note for the sum of five hundred dollars, and took a bill of sale of the slave to himself instead of to his brother, the plaintiff in this action. On the 9th day of July, a few days after the purchase of the slave, Jesse Wilks executed and delivered an absolute bill of sale for said slave to one James Tate, acknowledging the receipt of the consideration money, to wit, seven hundred dollars, and warranting the title. His deed was duly proven and registered; but it does not appear that Benjamin Wilks had any knowledge of this conveyance at the time it took place. Jesse Wilks died shortly afterwards, and Yancy Bledsoe obtained letters of administration upon his estate from the county court of Carroll.
    On the 29th day of September, 1832, the present plaintiff. filed his bill in the circuit court of law and equity sitting at Huntingdon, for the county of Carroll, against Y. Bledsoe, administrator of Jesse Wilks, deceased, and Jas. Tate, charging that the slave, George, was purchased with his funds and be- - longed to him, and that the bill of sale made by Jesse Wilks to Tate was fraudulent, and praying the title of the slave should be vested in him; and on the 11th September, Bled-soe filed his answer to the bill. He admitted that the slave was purchased with the funds of Benjamin Wilks, and that he heard Jesse Wilks, some short time before his death, state to Benjamin Wilks that slave, George, was the property of Benjamin, and that he would arrange the title papers. He stated further, that Jesse Wilks in his lifetime had given some lien upon the slave, but upon what consideration he did not know.
    This answer was written by the counsel of the complainant.
    On the 31st September, 1832, Tate filed his answer, lie charged that the bill of sale was taken in the name of Jesse Wilks for the purpose of defrauding the creditors of Benjamin Wilks; made an exhibit of a bill of sale from Jesse to himself, as above set forth; alleged that Benjamin Wilks was present at the execution of said bill of sale and asserted no right to the slave, George, either legal or equitable, and gave him no notice of any claim; and insisted that he had a valid title to the said slave.
    At the October term, 1832, of said circuit court of law and equity the following decree was entered:
    “B. Wilks vs. Y. Bledsoe, Administrator, and James Tate. This day came the parties aforesaid, by their counsel, and thereupon, by agreement of the parties, with the assent of the court, it is ordered, adjudged and decreed that the title to the negro man, George, be vested in complainant on the 9th day of July, 1832, or at any time thereafter, by his paying to the defendant, James Tate, one hundred and thirty dollars, the amount of the lien of said Tate on said slave; said Tate is also to have the benefit of a note on James R. Williams for seventy-five dollars, he paying ten dollars, for which said note is now pawned; and it is further ordered, adjudged and decreed that said defendant, Yancy Bledsoe, administrator, pay all the costs of this suit, to be levied of the proper goods and chatties, rights and credits of the estate of said Jesse Wilks, deceased, which have or may hereafter come to his hands to be administered, and that execution issue,” &e.
    Benjamin Wilks did not discharge the debt due to Tate set forth in this decree, and the slave remained in the possession of Tate till the 11th day of July, 1833, when he was seized by the present defendant, Thomas Banks, the then sheriff of Carroll county, by virtue of an execution in his hands, issued on the 29th June, 1833, on a judgment obtained in the county court of Carroll county at the December term, 1832, by Robert Murray against Yancy Bledsoe, administrator of the goods, &c. fee. of Jesse Wilks, deceased, for the sum of ninety-seven dollars and twenty cents and costs.
    The slave was sold at public auction in the town of Hun-tingdon on the 24th August, 1833, and Yancy Bledsoe purchased him for the sum of five hundred and ten dollars.
    B. Wilks instituted this action against Banks to recover the value of this slave, and filed his declaration at the July term, 1835. There were two counts. The first was in tro-ver. The second set forth “that the plaintiff, on the 2d day of September, 1834, was the beneficial owner of a certain negro man, a slave for life, named George; of the value of on'e thousand dollars; and that by a decree of the honorable the circuit court of Carroll county, rendered at the October term, 1832, the legal title to the said slave was to be vested in plaintiff on the 9th day of July, 1833, or at any time thereafter, by said plaintiff paying to one James Tate one hundred and thirty dollars, the amount of lien said Tate held on said slave; and said plaintiff says that he was entitled to the benefit of said negro on the payment of said one hundred and thirty dollars; and said plaintiff in fact further says, that before the payment of said one hundred and thirty dollars by plaintiff to said Tate, and while the negro still remained in the legal possession of said Tate, the said defendant, intending to deprive him of his interest in said negro, seized* took and carried said negro out of the possession of said Tate, and afterwards, to wit, on the day and year aforesaid, in the county of Carroll aforesaid, converted and disposed of said negro slave to his own use, whereby the said plaintiff is greatly aggrieved and deprived of the opportunity of l’e-deeming said slave from said lien so held on him as aforesaid,” &c. &c.
    The defendant pleaded not guilty to the first court, upon which issue was joined, and demuri’ed to the second, and plaintiff joined in demurrer. At the July term, 1836, Martin, presiding judge, overruled the demurrer, and upon the affidavit of the defendant gave him leave to plead to the second count.
    The defendant pleaded: 1. Not guilty; upon which issue was joined. 2. That at no time or period before the commence’ment of the suit or action or since had the plaintiff the actual possession of said slave, George, nor at any time any legal right or property in or to said slave, to entitle him to the constructive possession of said slave, Geoi’ge. To this plea plaintiff demurred and defendant joined in demurrer. 3. That Robert Murray recovered a judgment in the county court of pleas and quai-ter sessions for the county of Carroll against Y. Bledsoe, administrator of Jesse Wilts, deceased, for the sum of ninety-seven dollars and twenty cents and costs, and that an execution was thereupon issued and come to his hands as sheriff of Carroll county, and that by virtue of such execution he seized said slave as the property of Jesse Wilks, deceased, in the hands of his administrator, as he might lawfully do, and that the said slave was the property of said Jesse Wilks, and that the deci’ee set forth in the plaintiff’s declaration was obtained by fraud and by collusion between said Bledsoe, administratoi-, and said Benjamin Wilks. To this plea plaintiff replied that the decree was not obtained by fraud and collusion, and issue was joined thereupon. 4. That the decree was fraudulently and collu-sively obtained for the purpose of cheating the creditors of said Wilks, deceased, and that defendant as shei'iff seized and sold said slave, and that said plaintiff did not at any time pay or ténder to said Tate the sum of one hundred and thirty dollars so as to give him any legal title to the said slave, &c. To this plea there was a demurrer and joinder in demurrer.
    The cause was continued till the July term, 1837, at which time the issues <?f law on the second and fourth pleas of the defendant were determined by Harris, the presiding judge, in favor of the plaintiff. The-issues of fact were then submitted to a jury, who being unable to agree, a mis-trial was entered and the cause continued. At the November term, 1837, it was again submitted to a jury. The decree in chancery and the exhibits thereto, the judgment and fi. fa. of Murray were read to the jury. The administrator, Bled-soe, was introduced and denied unequivocally any fraud in the contract, and affirmed the title of B. Wilks to the slave in question. Some testimony of a circumstantial nature was introduced to establish a fraudulent intent in the procurement of the decree which it is not necessary to he set forth here.
    Harris, presiding judge, charged the jury that if they found that the plaintiff had an equitable right to redeem the negro in controversy from Tate upon the payment of the sum of money mentioned in the plaintiff’s declaration, and that he had been deprived of that right by the "seizure and sale of him by the defendant, that he was entitled to a verdict for the value of the slave at the time of the seizure and conversion, deducting therefrom the amount then due from plaintiff to Tate, as above mentioned, with interest on the remainder up to that time; that the decree which had been read to them was evidence of such equitable title; that it was conclusive upon the parties to said decree, and that it was prima facie evidence against the creditors of Jesse Wilks, deceased, but that they had a right to assail it on the ground of fraud; that the jury were not to determine whether the facts in the cause authorized the chancellor to make the decree, but they should decide whether or not the decree was procured by a fraudulent combination between the plaintiff and Bledsoe, the administrator of Jesse Willis, deceased, for the purpose of hindering, delaying or defrauding the creditors of Jesse Wilks; if so, although it was binding upon the parties, yet it was fraudulent and void as to the creditors of said Jesse.
    The court further charged the jury, that if the defendant took the negro in controversy before the plaintiff had redeemed him and then sold him, it was such a destruction of the plaintiff’s right of redemption as would sustain the action. The court further charged the jury that it was not indispensable to a recovery that the plaintiff should have either paid or tendered the money due hy the decree to Tate.
    The jury returned a verdict in favor of the plaintiff for the sum of four hundred and sixty-sixty dollars and eighty-seven cents. A motion for a new trial was made and overruled. A motion was then made in arrest of judgment and overruled, and judgment having been rendered in conformity with the verdict the defendant appealed in error.
    
      Totten, for the plaintiff in error.
    1. To entitle the defendant in error to recover on the count in trover he must prove an existing right of property and possession in himself to the slave in question at the time of the alleged conversion, i Chit. PI. 137: 2 Saund, Rep. 47, b: Gordon vs. Harper, 7 Term Rep. 9: Caldwell vs. Cowan, 9 Yer. Rep. 262. Nor will trover lie where there is an existing lien. Terrell vs. Rogers et al. 3 Hay. Rep. 205. The decree in the case of Benjamin Wilks against Y. Bledsoe and James Tate is the only evidence of the right of defendant in error, and it is for the court to give it a proper construction. It shows the legal title to lie in Tate, with a right to Benjamin Wilks to vest that title in himself by paying to Tate a certain note and a given sum of money, which sum of' money has never been paid. The actual possession was also in Tate. If' this decree be regarded as á mortgage, it is in law an estate vested in Tate, subjected to be defeated by performance of a condition subsequent, but the legal and equitable right remains in him till that'condition be performed. 4 Kent, 148, 158: 2 Story’s Equity, 284, 286, The decree cannot be regarded as having the effect of a technical conditional sale from Tate to Wilks, or vice versa, because in such case the title must vest in the vendor at the time, subject, however, to be regained by the vendor on performance of a condition subsequent. 4 Kent, 144: Bennett vs. Holt, 2 Yerg. Rep. 6. If the decree be any thing it creates a right or interest in Benj. Wilks to vest in him on the performance of a condition precedent, and the condition must be performed before it can vest, whether it be legal or equitable. 4 Kent, 120: 2 B. Com. 154: Sug. on Vendors, 60. A court of chancery will not vest an estate when, by reason of a condition precedent, it will not vest at law. 4 Kent, 120: 1 Vernon, 83. The legal effect of the decree is like the case where goods are sold on. conditions to be performed by the vendor at or before their delivery; the title vests not till the conditions shall have been performed, but remains in the vendor. Wilhraham, vs. Snow, 2 Saund. Rep. 476: Hornjlower vs. Proud, 2 B. and A. 329: 2 Kent, 387. .
    2. The court erred in overruling the demurrer to the second count, it being in case, because that count does not show any legal injury of which a court of common law .can take cognizance. It shows only an equitable interest in. the defendant in error; the legal right and possession being and remaining in Tate. The right of defendant had not vested; it was uncertain and contingent, depending on the performance of a precedent condition. To maintain an action on the case for an injury to real or personal property the plaintiff must have possession or a legal vested right and title in himself, existing at the time of the injury complained of; and he must show that the act complained of is an injury to such possession or right. 1 Chit. PI. 2: Anderson vs. Mar-tindale, 1 East, 497: 8 T. R. 332: 3 Camp. 417: 3 B. and P. 584. The case of Daws vs. Peck, 8 T. R. 330, was an action by a consignor against a carrier for not safely carrying the goods; it was considered that the legal title vested in the consignee by delivery to the carrier; and although the consignor had an equitable or beneficial interest in the goods, the right of' stoppage in transitu, yet the .action could only be brought by the owner of the legal title. 1 Saunders on PI. and Ev. 346. Persons having a mere equitable interest cannot sue except against wrong doers when the plaintiff is in actual possession of the thing affected. 1 Saund. on PI. and Ev. 346: Jones vs. Jones, 7 Term Rep. 47: 1 Chit. PL 3: 1 East, 497. So where two have a joint legal interest in a contract and one die, the action shall be by the survivor alone, he having the legal right, although the deceased alone was entitled to the beneficial interest in the contract, and his execi utor must resort to a court of equity to obtain from the sur-vivor the sum so recovered. 1 Chit. PI. 12: 1 East, 497: Barnard vs. Wilcox, 2 Johns. Cases, 374: Peters vs. Davis, 7 Máss. R. 357: 1 Johns. Rep. 34. So where a chose in action, not being a commercial paper, is assigned, the equitable and not the legal interest passes, and the assignee must sue in the name of the assignor for his use. 1 Chit. PI. 10: 10 East, 281: 10 J. R. 400. A cestui que trust can only sue when in actual possession of the thing affected, the injury being then done to the possession. 7 Term Rep. 47: 1 East, 244: 1 Chit. Plead. 52, 49: 1 Saund. PI. and Ev. 347.
    If the plaintiff in error had no right to seize the slave to satisfy Murray’s debt, it is clear that Tate, who had the slave in possession as well as the legal right to him, could sue and recover against Banks, the plaintiff in error, for an injury done both to his title and possession. And if the slave was held by Tate as security for his debt against Jesse Wilks, the intestate, (which it seems was about one hundred and thirty dollars,) he had a right to the entire security he had provided, and, in an action at law against the sheriff'and Murray, would be entitled to recover the whole amount of the value of the slave. The facts upon which these principles and conclusions are founded are admitted and stated in this count. If, then, Tate had a clear and undoubted right of actipn for the wrong complained of, can the defendant in error maintain his action for the same injury? If he can, then is the sheriffliable both to Tate and the defendant in error for the value of the slave; that is, he would be liable for twice the amount of injury he is supposed to have done, which is absurd. The law gives but one satisfaction for one injury, and the person entitled to it must not be uncertain. He that has the legal right must sue and recover the amount. See Daws vs. Peck, 8 T. Rep. 332: Com. Dig. tit. Merchant D: Ld. Raymond, 340. And the person who only has the beneficial interest must file his bill against the person who recovered against the wrongdoer for the amount of his interest. I Chit. PI. 12.
    In the case of Yates' vs. Joyce, 10 J. R. 136, the action was sustained for an injury done to a legal lien, say the court, which injury consisted also in the destruction of the property, and the plaintiff there had no other remedy. In the present case the interest is only beneficial or equitable, not legal, and the injury consistsnot in the destruction of the property, but only in a change of possession from Tate and from the defendant, and the defendant has another remedy. So of many other cases.
    The conversion complained of does not consist in the destruction of the property; the sheriff only affected the right of possession by the seizure and sale, to which the plain tiffhad no right. The sheriff’s title could be no better or greater than that of the judgment debtor, because it was only his interest that was sold. The defendant in error could still have performed the condition upon which his right depended, and have acquired whatever right he was justly entitled to. It could not have been material whether the slave was in the possession of the sheriff’s vendor or Tate, the legal owner, because the defendant in error could have equally asserted his right against either of them; so that, in fact, no injury has been sustained by the defendant in error. This argument would not hold good if the injury had consisted in the destruction of the slave. 2 Story’s Equity, 504.
    The law has provided the defendant with another and more efficient remedy if his title be good, and whether it be legal or equitable, by bill in chancery to enjoin the sale of the slave. See Loftin vs. Espy, 4 Yer. R. 84. Thus might the injury have been prevented. And after the sale the defendant had his further remedy by filing his bill in chancery to get possession of the property. But the principle is well settled that where the law has provided another remedy, although it be in chancery, case will not lie. See I Com. Dig. 281. As where a trustee refuses to perform a trust, he shall be compelled in chancery, or a sheriff to return one duly elected to parliament, for the party injured has his remedy by claiming his seat.
    The present case cannot be assimilated to an action on the case for an injury done to a remainder or i’eversion in either real or personal property, because in those expectant estates the legal title is vested in the remainderman or reversioner, to take effect in possession in future. 4 Kent, 194, 168, 254. . As to reversions, 4 Kent, 350. The same law is applicable to slaves. Cains vs, Marley, 2 Yerger’s Rep. 583: 2 Kent, 258.
    The action on the case lies for an injury to a vested remainder or reversion, it being a legal right, .(1 Chit. PL 129: 7 T. R. 9: 3 Camp. 187: 1 Com. Dig. 279, 402,) but not for a contingent remainder, the right not being vested but depending upon a future contingency, which is very similar to the present case. 4 Kent, 351.
    The interest of the defendant in error, as stated in this count, is not like that which would exist in case of a pawn or pledge, for in such case the general property or legal right does not pass to the pawnee, as in case of a mortgage; and therefore the general owner might maintain his action for an injury done to the property which was pawned or pledged. See 4 Kent, 132.
    
      M. Brown, for the defendant in error.
    The right of plaintiff below to redeem was a legal right. It was recognized by the common law as a right; and whenever a law recog-nises a right it will give a remedy. 1 Chit. PI. 87. The negro stood in the situation of a pledge; the pawnee, in whose hands it was, had only a special property, which would determine the moment the money for which he was pledged should be paid or tendered. 4 Kent, 138. It was not like a mortgage after forfeiture, when no right remains in the mortgagor but an equity of redemption, but it was like a mortgage before forfeiture when the right to redeem is a legal right; or it is like a mortgage in which the legal right to redeem remains perpetually. The better illustration however is a pledge, where the property ih'the pawnee is special, the legal title remains in the pawnee, which may be sold at execution. 4 Kent, 139.
    If the right vested in plaintiff below was equitable; he could sue for a destruction of that right. The distinction is between enforcing an equitable right in a court of law, and recovering damages for the destruction of that right by a tortuous act. There is no remedy against the wrong doer in equity. It is a tort which is not determinable in chancery. To destroy an equitable right is a temporal injury for which an action can be sustained. 1 Com. Dig. 272: 11 Johnson’s Rep. 154, Teates vs. Joyce. If there is no remedy in case there is no remedy any where.
   Reese, J.

delivered the opinion of the court.

The counsel for the plaintiff in error has argued, with much learning and ingenuity, that in all actions at common law, as well where the plaintiff sues upon his special case as in other forms of action, it is necessary to his maintainánce of the suit that the injury complained of should be either some invasion of his possession of property or should affect the value or enjoyment of property to which he has some legal right. The counsel for the defendant in error, conceding the general correctness of the principles insisted on, yet contends that there are many cases in which a party having an equitable title only to property may yet bring his special action on the case for an injury affecting the existence or* value of the property or operating a deprivation of his right, on the ground that otherwise he would have no remedy either at law or equity for the wrong done him. We deem it unnecessary, and therefore improper, in the case before us to determine whether the rule laid down on the one side be universal and inflexible in its application, or whether, on the other side, the exceptions to it exist upon the principle and to the extent contended for; for we think the counsel for the defendant in error correct in the position taken by him, that the legal operation and effect of the decree set forth in the second count of the declaration, upon which the contest arises, was to vest the defendant in error not with a merely equitable but with a legal right to the slave injquestion. The effect of the decree was to make the title of Wilks that of a mortgage, and the title of Tate that of a mortgagee, before forfeiture; or rather, perhaps, to make the property in the possession of the latter a mere pledge and him a mere pledgee. At any time, therefore, after the decree, Wilks, by tendering the money, would have reclaimed the pledge, terminated the interest of Tate, and entitled himself to maintain the action of detinue for the negro, if he had not been surrendered ta him. This being, in our opinion, the effect of the rights of the parties produced by the legal operation of the decree set forth in the declaration, it is unnecessary to say that upon acknowledged and well settled grounds the plaintiff below had a legal and common law right to the property in question, for the deprivation of which he may well maintain an action upon his special case. As to the verdict of the jury» we think the facts shown upon the record fully sustain it. Let the judgment be affirmed.  