
    Kennedy vs. Howard, et al.
    When real estate sold at execution sale was redeemed by agent, and title taken in agent’s name, it is held that the assignee of the equitable interest is clothed with the equities of the assignor and entitled to a decree against the agent holding the legal title. -
    This is a bill which was filed in the Chancery Court at Jonesboro’, by Thomas Kennedy against Jacob Howard and John Kennedy, seeking a specific execution of a contract to convey to him a tract of land, lying in the county of Washington. John Kennedy made a parol gift of the land to his son Thomas R., and Thomas took possession and made improvements on it. It was sold at execution sale to satisfy the creditors of John Kennedy, and Howard, as agent for John Kennedy, redeemed the land and took a deed in his own name. Whilst the title stood thus, John Kennedy executed a bond for title to Thomas Kennedy, acknowledging the receipt of five thousand dollars. This bill was filed for specific execution of this contract to convey, and for an injunction to stay the prosecution of an action of ejectment brought by Howard against complainant. And the chancellor (Williams) decreed title to complainant and a-reimbursement of moneys advanced by Howard. Howard appealed.
    
      T. A. R. Nelson, for the complainant.
    1. The complainant is entitled to relief against John Kennedy, because the title bond expresses the consideration of $5,000, and there is not and could not be, in this case, any proof of a different consideration. Fonb. Eq. 3d Am. Ed. of 1831, by Laussat, vol. 1, p. 201, margin; Richardson vs. Thompson, 1 Plum. 151; Haywood’s heirs vs. Moore, 2 Hum. 567; Bottsford vs. Burr, 2 J. C. R. 415; 1 Fonb. Eq. 172 top, 202 m.; Id. 270 top, 337 m.; Betts vs. Demumbrune, Cook’s R. 39; Bond vs. Jackson, Cook’s R. 500; Allison vs. Rutledge, 5 Yerg. 193.
    2. If complainant is entitled to relief against John Kennedy, then a specific performance can be decreed against Howard, who claims in privity of title with him. 2 Story’s Eq. J. sec. 788.
    3. Howard became the trustee of John Kennedy, and as such could not act for his own benefit. Giddings vs. Eastman, 6 Paige 561; 8th Law Lib. Willis on Trustees, 22 top; Lewin on Trusts, 22 Law Lib., 16 top; Parkist vs. Alexander, 1 J. C. R. 394; Reed vs. Warren, 5 Paige 650; Torrey vs. Bank of Orleans, 9 Paige, 649; and the cases cited in 2 Am. Ch. Dig. 585, No. 7; 582, No. 13; 480, No. 10.
    4. If the bond executed by John Kennedy is to be regarded as a voluntary instrument, this court has the power to decree the specific performance of the contract, because it rests upon a meritorious consideration. Thompson vs. Attfield, 1 Raithby’s Vernon, 40; Lechmere vs. the Earl of Carlisle, 2 Peere Williams, 222; Edwards and Wife vs. Countess of Warwick, 2 Peere Williams, 171; Osgood vs. Strode, 2 P. Wms. 245; Ellis us. Nimmo, 10 Cond. Eng. Ch. R. 534; (Lloyd 6 Goold, 333;) Shannon vs. Bradstreet, 1 Schoales and Le-froy, 60; Minturn vs. Seymour, 1 Johns. C. R. 500; Bunn vs. Winthrop, 1 J. C. R. 337; Roberts on Fr. Con. 64; Brown us. Brown, 1 Har. & Johns. 430, cited' in 1 Am. Ch. Dig. 15, No. 2; Argenbright us. Campbell, 3 Hen. and Mun., 144; and Mclntire vs. Hughes, 4 Bibb, 187, cited in 1 Am. Ch. Dig., 16, No. 9..
    5. The cases of Antrobus vs. Smith, 12 Vesey 39 top p., (Sumner’s Edition;) Willan vs. Willan, 16 Ves. 72; Pulver-toft vs. Pulvertoft, 18 Ves. 84, and Ellison vs. Ellison, 6 Ves. 656, are every where referred to in support of the proposition that a Court of Equity will lend no assistance towards perfecting, nor take any notice of, a voluntary contract whilst it remains in fieri. But these cases only refer to a mere-voluntary contract, and not to a contract founded upon a meritorious consideration — such as payment of debts or provision for a wife or child. See Atherby on Marriage Settlements, 25 Law Lib., 97 top (186 m.) Note 1; and 2 Story’s Eq. J., section 987, Note (3.)
    6. Mr. Story, in section 987, vol. 2. Eq. J. says that courts of. equity will not, “as it should seem, interfere against the settler himself in any case,- referring to ' Colman vs. Sarel, 1 Vesey J. 50; same, case 1 Bro. Ch. R. 12; 2 Wils. 356; . 3 Atk. 186,18 Ves.; 6 Ves., section 433 of his own work, and Atherby on Marriage Settlements. In note 3, to section 987, Judge Story says “the authorities cited may be thought to afford some grounds for doubt and further consideration.”
    Of the authorities referred to by Judge Story, the following distinctly admit the exception in favor.of a meritorious consideration, which is defined to be, as above stated — pay- . ment of debts, or making provision for a wife or child, viz: Coleman vs. Sarel, 1 Ves. 50 and 1 Bro.Ch. R. 12; Fonb. 48 top, (vol. 1, 31 rnarg.) Id. 59 top, (vol. 1, p. 40, 41 m.) Id. 365 top, (vol. 2. pp. 30, 31 m.) Id. 276 top, (vol 1,350 m.) Id. 273 top, (1 vol. 339 m.) Id. 275 top, (1 vol. 349 m.)
    Mr. Atherley,who is chiefly relied upon by Judge Story, says “I am strongly inclined to think that as against the settler himself, equity should in no case enforce a voluntary agreement.” But, on the same page, he says that “equity, generally speaking, will execute voluntary articles against the settler’s heirs at law.”- 25 Law Lib..Atherley 69 top, 132 m.
    It is difficult — as the heir at law stands in the same position as the settler, — to conceive why a court of equity would' execute the agreement as against him and not as against the settler himself. Mr. Atherley gives two reasons for his opinion; first, that a voluntary settlement is in the nature of a will, revocable by the settler himself, but binding on his representatives; and, 2nd, that it may be defeated by a subsequent sale. Where the settlement is fairly made, by a person not indebted to insolvency, the law has been otherwise held on both these points in the United States. See Souver-lye vs. Arden, 1 J. C. R. 256; 1 Story’s Eq. sec. 371; Marshall vs. Booker, 1 Yerg. 13; Smith vs. Greer, 3 Hum. 121; 2 Lo-max Dig. 329, No. 16, and 1'Story’s Eq. J. sections 356 to 365; Sherry and Wife vs. Arden, 1 J. C. R. 261; 2 Rand, 384; 4 Rand. 382.
    Mr. Atherly himself, in other parts of his work, says' that “any meritorious consideration will induce the court to afford its assistance,” and seems to be at variance with himself. See Atherley on Mar. Set. p. 77, Notes 1 and 2. Ibid 78, Note 2.
    It is believed that none of the cases referred to by'Judge Story, or in Atherley, conflicts with the express authorities above cited in No. 7. And this honorable court,- in Read vs. Long, 4 Yerg. 80, — founding its opinion upon Ellison us. Ellison, 6 Yesey, 656, — recognized the distinction I contend for between a bare voluntary agreement and one founded upon a meritorious consideration. The ease of Holloway vs. Head-ington, 11 Cond. Eng. Ch. R. 460, which questions the express decision in Ellis vs. Nimmo, made by Lord Chancellor Sug-den, above mentioned, (10 Cond. E. C. R. 534,) is not so good an authority as Ellis vs. Nimmo, because not so fully considered and referring to no authorities.
    7. I refer to the' following cases where voluntary settlements have been supported as sustaining the general principle insisted upon: 1 Story’s Eq. sec. 355; ex parte- Pye, 18 Yes. 149; Worral vs. Jacob, 3 Meriv. 270; Knye vs. Moore, 1 Con. Eng. Ch. R. 32; Ibid, 447; Colteen vs. Missing, 1 Mad. 85; Graham vs. Graham, 1 Ves. Jr. 274; 2 Lomax Dig. 329, No. 16; Sloane vs. Cadogan, 3 Sug. on Vend. 208 top, 297'bot:; Ibid, 416 top, App. 75 bot.; Sear vs. Ashwell, 3 Swanston, 410; Bolton vs. Bolton, 3 Swans. 413; Danbery ús. Cockburn, 1 Meriv. 624; Smith vs. Garland, 2 Meriv. 122; Worral vs. Jacob, 3 Meriv. 256; Clavering vs. Clavering, 2 Yern. 473; Naldred vs. Gilham, 1 Peere Wms. 580; Wycherly vs. Wych-erly, 2 Eden, 105 top, 176 m.; Atherley on Mar. Set. 93 top, 178 m.; Ibid 96 top, 185 m.; and Hadley vs. Latimer, 3 Yerg. 537. These authorities fully sustain the principle stated.
    
      Sneed and R. X McKinney, for defendant Howard.
   Rees®, J.

delivered the opinion of the court.

Complainant is the son of John Kennedy, defendant, and the defendant, Jacob Howard, is his son-in-law. The bill alleges that in 1834 the defendant, J. Kennedy, by way of advancement to complainant, made to him a parol gift of the tract of land near Jonesboro’, worth near five thousand dollars, and put him in possession thereof, and the complainant occupied and enjoyed the same as his own for several years. In 1840, execution against said J. Kennedy upon two small judgments, amounting together to $ 150, were levied on the tract of land, and the same was sold by the sheriff for the amount of the executions to the execution creditor — that af-terwards, in the same year, the defendant, Howard, as agent of J. Kennedy, or on his behalf and for his benefit, paid to the execution purchaser the amount of his bid with 10 per cent, and took from him a written direction to the sheriff to make him a title to the land, and the sheriff did make him a deed for the same; that afterwards, John Kennedy gave to complainant his bond, binding himself for the consideration of five thousand dollars, therein acknowledged to have been received by the defendant, J. Kennedy, from the complainant, to convey' by deed the tract of land to the complainant — said bond stating that the legal title was then in J. Howard; and to this bond J. Howard became an attesting witness; that afterwards, and before the expiration of two years from the time of the sheriff’s sale, the complainant offered and attempted to redeem from the defendant, Howard, by paying to him the amount of money advanced by Howard; that in this offer he acted as the agent of J. Kennedy and for himself; but that Howard declined to receive the money, and by evasion and fraudulent promises of permitting him to pay it at any future time, postponed the matter till' the end of two years from the sale, when he claimed the land and refused redemption; that after the execution sale, and the making the sheriff’s deed to Howard, and after the bond of J. Kennedy to him, he had, with the knowledge of the defendants, and in the character of owner of the land, made valuable and expensive improvements. The bill prays that on complainant’s paying to Howard the amount bid at sheriff’s sale, with the interest prescribed by law, he may be divested of the legal title to the said tract, and that the same may be vested in complainant. As against J. Kennedy, the bill was taken pro confesso and heard ex parte. It is not necessary that we should state at length the grounds of defence set uj^ in the answer. We are of opinion that the admissions contained in it, connected with the proof, establish the material grounds of relief insisted on in the bill. Considering the complainant as standing towards Howard, by virtue of Kennedy's title bond, in the attitude of the latter, and clothed with his equities, there is no doubt that he would be entitled to draw from Howard the legal estate upon the payment of the purchase money. But, it is said, that this is a bill for the specific execution of a voluntary executory contract by the ven-dee against the vendor, and that, in such a case, although a contract executed will not be disturbed at the instance of the vendor or of volunteers claiming under him in a court of chancery, and although a contract in fieri resting upon a meritorious consideration, that is, made in behalf of a wife or child, will be enforced in behalf of such child or wife against the heirs at law, it will not be thus enforced against the voluntary vendor or settler himself. This latter proposition is controverted by complainant’s counsel, and he insists that a contract in fieri, although voluntary, if sustained by a meritorious consideration, will be enforced in equity against the voluntary vendor or settler himself. To maintain this, we are referred to recent chancery decisions in England. But those decisions have been questioned in still more recent cases and have not been as yet acquiesced in. The complainant contends, moreover, that the making of valuable and expensive improvements upon the land, as alleged in the bill and proved by Hie pro confesso against J. Kennedy, constitutes a pecuniary consideration in addition to the meritorious one, and that a slight pecuniary consideration will, in such cases; suffice, according to well settled chancery principles; he contends still further that although the bill alleges that when he was placed in possession of the land, it was by a parol gift of the land from his father; yet when the bill, afterwards, comes to state and set forth the execution of the title bond, it does not speak of that as voluntary; and the bond itself acknowledges the reception of a pecuniary consideration of five thousand dollars, which, in the absence of any thing to'disprove it, will be taken as true, as against J. Kennedy. Without determining whether, upon any of these grounds, the complainant can have relief, (and it is probable that upon some of them he can,) we are of the opinion that the complainant, if he seek no decree against Kennedy, may be regarded as the assignee of the equitable estate of J. Kennedy by the legal effect of the bond of the latter, and clothed with his equities against Howard, upon the ground of which he has a right to draw from Howard to himself the legal estate outstanding in Howard at the time of the title bond or equitable assignment to him from Kennedy. In this view we make no decree against J. Kennedy, and do not trench upon the general question so debateable, first alluded to. To that character of relief, and to that extent, we think the complainant is, upon every principle, entitled; and so accordingly decree.  