
    Thomas W. Endicott vs. Thomas Penny.
    While a judgment at law is a bar to any relief in equity in relation to the subject-matter involved in the suit at law, if such judgment be properly relied on ; yet if, after judgment at law, the party against whom it is rendered apply for relief to equity, and the defence be of such a character that a court of equity would have had original jurisdiction, concurrently with a court of law, the neglect of the party to avail himself of his defence at law will not oust the jurisdiction of chancery, if the defendant answer over to the merits and neglect to rely on the judgment at law, by demurrer to the bill.
    A sheriff’s sale is not within the statute of frauds ; he is the agent of both parties, and his memorandum is sufficient to take the case out of it; he is the mere instrument of the law to transfer the title of the defendant in execution to the purchaser.
    Where, therefore, E., who had bid off certain real estate levied on under execution against C., before the deed was executed, or the return made, agreed to sell the land to M., and at M.’s request to have the sheriff’s deed made to G., (who advanced for M. the money to E.,) to secure him for the money thus advanced ; and in pursuance of the agreement, and in the presence of all the parties, the sheriff made the deed to G., and returned the execution accordingly: it was held, that the circumstances were sufficient authority for the act of the sheriff, which was in effect the act of E.; and that the right of E. to the land passed out of him thereby ; the case not being at all affected by the statute of frauds.
    And a subsequent sale by E. to another of the same land, by which E. purported to sell “ the right and interest of C. therein ; ” and did not inform his vendee of the circumstances attendant upon the sheriff’s sale, and that in point of fact no title was in him, would be fraudulent on the part of E.; and he could not recover the purchase-money he had sold the land for.
    ON appeal from the superior court of chancery; Hon. Stephen Cocke, chancellor.
    Thomas Penny states, in his bill, that in 1836, Tiernan, Cuddy & Co. came under acceptances for the accommodation of James Cocke, John H. Cocke, and R. M. Whitman for the purchase of fifty or sixty slaves. At that time John and James Cocke and Whitman were joint owners of a tract of land in Washington county, about 3000 acres, and to indemnify said Tiernan, Cuddy & Co., agreed to give a deed of trust of their interest in said land, and other property; and John Cocke and Whitman did give such deed of trust, but James, being a minor, did not join, but promised to do so on coming of age, which he never did.
    That John H. Cocke and Whitman caused their interest in said land to be sold under some prior deed of trust or incumbrance, and James Cocke, having become of age, bought their interest for a small sum. Subsequently, complainant became agent for said Tiernan, Cuddy & Co., but did not know of such sale, and believes Tiernan, Cuddy & Co. did not. Shortly after this, one T. W. Endicott obtained a judgment against James Cocke for about $250. About the same time, John H. and James Cocke ran off with their slaves to Texas, and left Tiernan, Cuddy & Co. to provide for their acceptances. After this, Endicott issued execution against James Cocke, which was levied on his interest in the land, which was bid off by said Endicott, who sold the same to E. H. Greer.
    Having heard of said sale, and not knowing how it might affect the rights of Tiernan, Cuddy & Co., he waited on Endicott to ascertain the facts, — who informed him that Millikin and Greer had come up to bid for said property, for the benefit of creditors, but arrived too late; but that he agreed with them to let them have the title he had bought for $400, to be paid on the first of July following. Complainant represented the importance of getting this title, and proposed, if Endicott had not irrevocably parted with his interest, to confer with C .Tiernan on the subject of purchasing it; and informed Endicott that Millildn and Greer had no authority to act for Tiernan, Cuddy & Co., who were the largest creditors. Endicott appeared indignant at the deception, and stated that the contract was not closed and irrevocable; that the money was not paid, and he would not receive it or permit the affair to go any further. Complainant requested him to state his price, in case he regained his title, and he named $2500.
    In 1841, complainant being about leaving the state, called on W. V. Davenport to treat with said Endicott for the purchase of said title, and left with Davenport a blank bill of exchange on C. Tiernan, of Baltimore, to be filled up for the sum agreed on.
    Soon after complainant left the state, Endicott called on Davenport for the purpose of effecting final terms; and although he knew complainant wanted nothing but the title, and had no desire to purchase a lawsuit, so practised on the want of knowledge of said Davenport as to the import of legal instruments, as to induce him to believe that a bond for a title, on the contingency of being recovered by suit, was a good and sufficient equivalent and consideration for said $2500; and Davenport being led, by said Endicott, to believe that the contract with Greer and Millildn was not consummated, (as it was,) delivered said bill to said Endicott, and took the bond from said Endicott.
    After delivering said bill of exchange, said Davenport advised said C. Tiernan of the whole nature of the contract, who, being satisfied that said Davenport had been overreached by Endicott, refused to accept said bill, which was protested and returned. Said Endicott assured said Davenport the said title was sound, and promised that if any thing was wrong he would rectify it.
    That at the time of giving said bill of exchange, he was a freeholder in Washington county, and shortly after became a resident citizen of this state, and has so continued to this time. Endicott knew the plantation owned and occupied by complainant ; yet, on the 21st of December, 1842, he made oath that complainant was not a citizen of this state, and procured an attachment, returnable to the April term, 1843, of Washington circuit court, which was attempted to be levied, in February, 1843; but the officer finding complainant at home, and being assured that such was his well known residence, desisted from executing the writ. In March, complainant having left home, Endicott procured other officers to proceed a second time to complainant’s residence, who seized and carried away seven slaves. Being informed thereof, he wrote to Davenport, and required of him to procure their release. Complainant soon after learned that Davenport had of his own accord proceeded to Princeton and procured the services of William H. Hurst, and shortly after the slaves, except one, were restored to him; and he was subsequently informed by Davenport that said suit had been dismissed.
    That he has been at all times ready to defend the suit, but did not employ Hurst, or authorize him, to defend; but only consented to the employment, to procure a return of the slaves. Having been informed that said suit had been dismissed, he did not authorize any person to plead thereto, and never knew a plea had been entered. If no such plea had been entered, the suit could not have progressed without publication of notice, which complainant would have been very apt to know, being in the habit of reading the newspapers. Instructed his servants to give him notice of the service of process, in his absence. Notwithstanding these precautions, and that Hurst was apprised he had a defence, complainant continued in ignorance of the pendency of said suit, until after judgment, when an execution was levied on eight slaves, which the sheriff had in possession and threatened to sell. That one slave which was seized under the attachment had been levied on, and sold for $150, although worth $600, and bought by M. Endicott, a relative of defendant.
    That he does not know the relations subsisting between Greer and Millikin and said Endicott, nor did he ever know that the sheriff’s deed to said land was made to Greer until within a few days since, he was so informed by said Endicott; nor did he know that said Endicott had received from said Miliikin and Greer the purchase-money until since said judgment..
    Endicott, in his answer, admits that Cocke and Whitman had an interest in the. tract of land described in the bill, and that James Cocke purchased the interest of John Cocke and Whitman, under a deed of trust older than the deed to Tiernan, Cuddy & Co., if any such there was. Denies the sale was made to defraud Tiernan, Cuddy & Co.
    Denies that he had obtained a judgment against James Cocke, but admits that two judgments against James Cocke were transferred to him, the amount due on which was $230; under which judgments he bid off the land at a fair public sale.
    Admits that after the sale, he entered into a verbal agreement with Miliikin to transfer to him his title to the land for $400, — provided he would hold it subject to redemption by any creditors on the payment of a debt, represented by Miliikin to be due from Cocke, to the Union Bank. Of this verbal agreement, he informed complainant, but of none other, and denies that any other agreement was made with Miliikin or Greer, in relation to said land.
    Miliikin afterwards refused to take a transfer of title on the terms agreed on, and claimed it absolutely and unconditionally; respondent- considered his agreement violated, and that he was discharged, and denies that he ever did transfer his title to Milii-kin or Greer, or authorized any one so to do; and that the deed, made to Greer by the sheriff, was without his consent or authority, and did not transfer his interest or title, as he then believed and still believes.
    Is informed and believes his agreement with Miliikin being merely verbal, was void by the statute of frauds, and not binding, even if Miliikin was willing to take a transfer on the terms agreed on. Insists on the statute of frauds, as a bar to the right of Miliikin.
    Admits that complainant came to him and proposed to purchase his interest; in conversation, defendant explained to complainant his agreement with Miliikin, and his belief that it was not binding, and then agreed to sell complainant his right and title in said land, for $2500, proposing to transfer his interest only, whatever it might be, without warranty of any kind ; complainant to judge of the title and the agreement with Millikin, which was then truly and fully explained as before set forth; and denies that he intended or complainant understood any thing more than a quit-claim deed.
    Complainant took the proposition under consideration, and finally agreed to accept it. Respondent- afterwards called on Davenport, complainant’s agent, who, after consulting his own lawyers, presented the bond set out, and respondent executed it and received from Davenport the draft referred to in the bill. Denies that he deceived or in any manner misinformed Davenport, but avers that Davenport throughout acted according to instructions, and in accordance with the understanding between complainant and defendant. Had the bond drawn by his own lawyer, and had full authority for all his acts, and completed the contract in accordance with his instructions.
    Denies that. Davenport was not to part with said bill until good title to the land was made. He was to deliver the same to respondent, on receiving respondent’s obligation to transfer his title, and nothing more.
    The land was worth $15,000; hardly supposable that respondent would sell it with warranty for $2500.
    Denies that he agreed to give any other title than that agreed on in his bond; and denies that Davenport was instructed to take nothing but a clear and undoubted conveyance; avers the claim was purchased expressly as a doubtful one, and for speculation. Now believes and charges that his title is good, and that complainant has a good right to recover the same under the transfer made by defendant.
    Admits the bill was protested. Denies that he promised to rectify any errors or mistakes in the title, or any thing wrong; admits he promised to rectify formal errors.
    Admits he brought writs of attachment on said bill of exchange; denies that he knew said complainant was a resident of this state; avers he was a resident of Louisiana.
    Admits that the attachment was levied on slaves, that complainant appeared by attorney, plead to the action, and on motion dissolved the attachment; that Hurst was employed at the request of complainant.
    Denies all fraud, and avers that complainant’s attorney, Judge Martin, had the executions and returns in his'hands before he advised Davenport to close the contract.
    Davenport, a witness for complainant, states, that, in 1841, Penny appointed him to carry out a contract with Endicott, for the Cocke plantation, which Endicott had purchased at sheriff’s sale; does not know that Endicott had any interest in the land, except such as he purchased at sheriff’s sale.
    Penny instructed him to hand Endicott the draft, when advised by counsel that a good title could be had for the land.
    Endicott called on him to close the contract, but thinks he wrote to Endicott that he was authorized to close the contract before Endicott called. At the time Endicott called, witness handed Endicott the draft, and received from him a bond. Endicott stated he had bought the land at sheriff’s sale, and exhibited the executions, and left them with him while consulting lawyers. Endicott stated he had no deed from the sheriff, but that the deed had been made to Greer.
    No part of the contract was written except the bond. It was delivered to witness to hold as trustee to both parties, until the draft was paid, when it was to be delivered to Penny. He holds the bond, and files it as part of his answer.
    Endicott showed the executions under which he purchased, and expressed his opinion that a good title could be had by filing a bill before Judge Coalter, against the sheriff, and compelling him to make Endicott a deed, and sending the bill up to him by second Monday of October. Penny was to prosecute the suit in the name of Endicott; does not recollect that he said any thing about correcting errors in the bond, but would do what he could towards effecting a good title, at Penny’s expense; does not know that Endicott promised to obviate any objections made by Penny, but that he would do what he could to assist Penny in effecting his title; said he considered there would be no difficulty in Penny’s getting a good title by bill in chancery. He also men. tioned a verbal agreement with Millikin, to give up his purchase at sheriff’s sale, for $400 ; on which statement the sheriff made a deed to Greer; stated that his object was to give all the creditors of Cocke a chance; stated that he bid off the land, and immediately after the sale and before a deed was made, he made the agreement with Millikin, and upon that agreement the sheriff made the deed to Greer; that the sheriff had no written authority from him to make the deed to Greer; also that he had the opinion of counsel that the title could be perfected in himself. Witness was about to consult with George Yerger, and Endieott said he had something to do with the purchase, and the witness went to Judge Martin, who told him he had consulted with Judge Anderson, and he had no doubt a good title could be made.
    Does not know where Penny resided in 1842 ; he had a plantation in Washington county, where he spent a portion of his time; he worked thirty or thirty-five hands; that is the only dwelling he knows of that Penny owned; he spent considerable time in travelling about, settling up the business of Tiernan, Cuddy & Co.; witness knows that Endieott knew at that time that Penny had a plantation in Washington county, but does not know that he knew that was his residence.
    He heard of the attachment through a letter from the overseer. Witness employed Hurst, with instructions to defend the suit, with a statement of the nature of the suit; understood from Hurst he had arrived late at court, but in time to put in a plea, and that Penny could not be troubled till he had time to shape his course in chancery; witness so wrote to Penny; witness thinks Hurst told him his remedy was in chancery.
    Cannot say that Penny had any knowledge of the subsequent proceedings in said cause; he never heard of the discharge of the slaves, or. dismissal of the suit, except from Hurst; Hurst brought all the slaves from Washington county, to Vicksburg, but one; deponent first heard of the suit by letter, from Penny’s overseer, who wrote that seven negroes had been seized ; deponent then employed Hurst to defend the suit, who went to Washington under his employment to defend the suit.
    He employed Hurst to recover the slaves, and contest the right to a recovery on said bill.
    
      To cross interrogatory. — He says he did obtain the opinion of good counsel, that a good title could be made to said property, and, in pursuance of instructions, closed the contract and delivered the bill of exchange. The bond was drawn by Penny’s counsel.
    The condition of the bond referred to in Davenport’s deposition, is, in substance, reciting that Endicott, on the 15th April, 1841, purchased, at sheriff’s sale, a tract of land; and that on that day he had bargained and sold to Penny all his right, title and interest to the land so purchased, it being all the right, title and interest of James and John Cocke, in and to said land; bound himself to give all necessary assistance to Penny, by the use of his name in all suits necessary to be prosecuted by them for the purpose of having the title to the land vested in said Penny; and to make or cause to be made to said Penny all necessary deeds and conveyances, so as to vest in him all the title which is now vested in said Endicott, at such time as he may be required to do so by said Penny; they paying all costs and expenses to be incurred in securing said title, whether by suit at law, or otherwise.
    Robert B. Millikin states, he heard the defendant say he had purchased John and James Cocke’s interest in a tract of land in Washington, on the Mississippi river; witness was at Princeton on the day of sale.
    The interest purchased by Endicott, was purchased from him by E. H. Greer, for which he paid Endicott $400. Endicott received the money, and instructed the sheriff to make, the deed to Greer; no written evidence of the contract was made; witness saw the sheriff sign the deed.
    Witness had an interest in the purchase made by Greer; witness informed Endicott that a mortgage on said land, in favor of the Union Bank, should be paid by the purchaser; does not know that Endicott knew who were the other parties to the purchase.
    Witness has neither possession or interest in the land..
    Does not recollect any proposal from Endicott to rescind the contract, or refund the money.
    
      The whole purchase-money was paid by Greer to Endicott; when the deed was made by the sheriff, the amount was about $175 more than the amount bid by Endicott.
    Witness has no interest in the land; he parted with his interest without recourse; his interest never was in writing, and he parted with it without making any written conveyance.
    On cross-interrogatory, stated, Greer placed the money on the sheriff’s table; the sheriff took the amount of the execution, and Endicott took the advance before stated; the agreement of purchase was made with witness; witness was not present at the time of the sale of the land to Endicott; neither witness nor Greer purchased at sheriff’s sale; the deed by sheriff to Greer was made in pursuance of the agreement between Endicott and witness.
    Greer had not any personal interest in the purchase; the purchase-money came from witness and other parties, and Mr. Greer merely loaned to witness, receiving, therefor a check which was paid on his return to Vicksburg. The other parties were Gwin and G. R. Clifton, each paying one third.
    Dr. Gwin became interested with witness in said property, in his own name, as well as Clifton; witness had the deed made to Greer without consideration, regarding him as trustee, and partly to secure Greer the $400, advanced by him to witness, which was afterwards paid by witness.
    Witness parted with his interest by regular sale to R. Christmas, and directed Greer to make a deed of his interest, which was not more than sixty days after he became interested, and was not in writing, except the order to Mr. Greer.
    Has received his share of the $400, but does not recollect by whom it was paid, viz., the amount advanced by witness beyond his one third of the purchase-money.
    Does not know whether Gwin and Clifton were acting for others, nor did they profess to be acting except for themselves.
    Being re-examined, he stated that the deed from the sheriff to-Greer was made on the day of the sale, by the sheriff, and a very short time after the sale.
    
      W. W. Collins stated, that he was sheriff of Washington county in 1840 and 1841.
    That as sheriff he sold a tract of land as the property of John and James Cocke, under an execution in favor of Dashiel transferred to Endicott.
    Thomas W. Endicott purchased the land. He made a conveyance of the land to Greer.
    He had Endieott’s verbal authority to make the deed to Millikin as agent for the Union Bank, and Greer or Millikin wrote the deed in Greer’s name, to which Endicott objected, and Millikin said it should all be rectified when they went to Vicksburg. Greer and Millikin arrived in the evening of the day of sale, and the verbal agreement was made between Endicott and Millikin as agent of the Union Bank. And Millikin stated he would lose his situation as cashier of the bank if he did not secure the debt or land.
    To cross-interrogatory, he stated, that Millikin borrowed the money from Greer to pay for the land. The execution was in the name of Dashiel, and transferred to Endicott for an execution Endicott held against Dashiel.
    Endicott sold the land for a profit, but believes he sold it on account of sympathy he felt for said Millikin, and from witness’s earnest request, which was from sympathy he felt for Millikin for the same reason. The profit was about $ 170.
    Endicott and witness believed the purchase valuable, and Endicott said he would not sell except it was for the benefit of the Union Bank.
    Did not know where Penny resided, nor did he know that Endicott knew.
    The chancellor perpetuated the injunction, and Endicott appealed.
    
      Guión and Baine, for appellant,
    relied on the judgment at law in bar of the relief prayed for.
    
      Montgomery and Boyd, for appellee.
    1. This is a case of fraud, which is an original ground of equity jurisdiction, subsequently adopted by courts of law. The jurisdiction of courts of equity and courts of law are therefore now concurrent. And in such cases a court of equity will relieve, notwithstanding the defence might have been made at law. Clay v. Fry, 3 Bibb, R. 248. And in some cases relief will be granted after a full trial at law. Appleton v. Harewell, Cook, 242.
    2. But the defendant has submitted to answer the bill, without pleading the judgment at law in bar, or insisting on it in his answer. And as the subject-matter is cognizable in equity, the answer to the merits gives the court jurisdiction of the case. McCauly v. Mardis, Walker, R. 307; 2 Caine’s Cases, 40, 56; 2 Johns. Ch. R. 369; Osgood v. Brown, 1 Freem. Ch. R. 400; Cable v. Martin, 1 How. R. 558.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed to enjoin a judgment at law, upon the ground of fraud in the original agreement. The defendant, Endicott, filed an answer, in which he denied the fraud, but he interposed no objection, by plea or otherwise, to the jurisdiction of the court. His counsel in this court rely on the judgment as a bar to the relief prayed in the bill, because the matter should, have been set up as a defence in the court of law. If this position had been taken in the court of chancery, either by plea or demurrer, the bill would have to be dismissed. But the same result does not follow where no exception is taken to the jurisdiction. The rule is thus laid down in a late case: “ If the defence were of such a character, that a court of equity would have had original jurisdiction, concurrently with a court of law, the neglect of a party to avail himself of his defence at law, will not oust the jurisdiction of chancery, if the defendant answer over to the merits and neglect to demur.” Rice v. Railroad Bank, 7 Humph. 42. Of course, if the jurisdiction belonged exclusively to a court of law, a court of equity could have nothing to do with it.

In the present case, fraud would have given either court jurisdiction, before the other exercised it. As the party wholly omitted to make the objection in the court below, and as it was one which he was at liberty to waive, it ought not to be entertained by this court. In the numerous cases in which we have held, that the judgment precluded relief in equity, the objection was made to its exercise by the pleadings in some way.

The question as to relief then, arises upon the facts. The defendant, Endicott, had purchased, at execution sale, a tract of land belonging to James and John H. Cocke, who were largely indebted at the time to various persons. The complainant was the agent of some of these creditors, and entered into the contract with Endicott for the land, with the view of saving their debt. It is alleged in the bill, that Endicott had previously sold the land to another person.

In his answer Endicott gives this version of the transaction. He states that after his purchase under execution, aud on the same day, he made a verbal agreement with Millikin, who ■represented other creditors of the defendants in the execution, for the sale of the land to him, upon condition that he would permit other creditors to redeem from him, upon payment of the claims he might hold. That Millikin afterwards claimed the land absolutely and unconditionally, in consequence of which he considered himself wholly discharged from his agreement, and sold to the complainant. He also states, that the deed made by the sheriff to Greer was without his consent and authority, and did not convey his title; and he relies on the statute of frauds to avoid it.

The evidence of Millikin and of Collins directly contradict this answer. They prove, that on the day of sale Endicott sold the land to Millikin for #400; that Millikin borrowed the money from Greer to pay for it; that the money was paid to and received by Endicott, and therefore the sheriff in his presence and by his direction made the deed ; Millikin also directing the deed to be'made to Greer as a security for the money borrowed.

The title bond of Endicott to Penny, states that he had bargained and sold to him all his right, title, and claim to the land described, “it being all the right, title, claim, and interest of James and John H. Cocke in and to said land.” Now it is very obvious that he did not sell to the complainant, all the right and interest of the Cockes, if the conveyance to Greer be not utterly void by the statute of frauds, because if that conveyance be valid, ho had previously divested himself of all interest in favor of Millikin. The fraud practised on the complainant, consists in the misrepresentation in regard to the conveyance to Greer, and in the concealment of the fact, that it had been made in his presence and by his sanction.

A sheriff’s sale is not within the statute of frauds. He is the agent of both parties, and his memorandum is sufficient to take the case out of it. Hand et al. v. Grant, 5 S. & M. 512. In other words, he is the mere instrument of the law, to transfer the title of the defendant in execution to the purchaser. Matthews v. Clifton, 13 S. & M. 336.

In this instance Endicott had no title in writing, at the time of the sale to Millikin, nor does he appear to have had any at any subsequent time. The sheriff had made no deed. The whole matter was incomplete and in progress of consummation. It only became perfect by the payment of the money, and by the sheriff’s return and deed. Whilst it was thus in the process of accomplishment, one purchaser was substituted for another by the consent of the only persons interested. The arrangement was completed, the money paid, and the deed made by the direction and with the sanction and co-operation of Endicott. These were sufficient authority for the action of the sheriff, and the act in effect was the act of Endicott. We do not see, therefore, that the case is at all affected by the statute of frauds. Penny got nothing by his purchase. Endicott did not transfer that which he contracted to do, namely, the interest of James and John H. Cocke. The disclosure which he made to Penny was not such as good faith required. Indeed he misrepresented the facts. These acts make the transaction fraudulent, and give the complainant a right to the relief which is sought.

The decree is affirmed.  