
    Kimbrough vs. Benton et als.
    1. Kimbrough, the execution creditor of Beuton, sold and purchased land as the property of Benton by virtue of his execution. He instituted an action of ejectment against Benton, and not being able to prove that Benton had title to the land, or that he was in possession at the time of sale, he was defeated: Held, on bill filed by Kimbrough against Benton for title, that there must be clear proof, that Benton had an equitable title to justify a decree. The court will not presume from Benton’s having claimed the land and given written directions for a sale by lots, that he had the title, and therefore decree a divesture.
    
    2. Where an execution creditor sold and purchased, by virtue of his execution, property to which the debtor had no title, and the execution was returned satisfied: Held, that he was not entitled to have the satisfaction set aside inequity, without showing fraud or misconduct on the part of the defendant. See Whitmore vs. Parks and Jackson — Ante, p. 95.
    At the June term of the circuit court for Shelby county, 1827, Kimbrough recovered a judgment against Jesse Benton for the sum of 14170. Execution was issued and levied by the coroner on a tract of land, containing about 1392 acres, lyingin Shelby county. It was granted to Jesse Steed, and claimed by J. Benton. In reference to the sale, Benton gave written directions to the coroner, by virtue of the act of 1799, ch. 14, sec. 3, in the following words:
    “I hereby direct A. B. Cass to sell my interest, right and title to the tract of land granted to Jesse Steed, in the manner hereafter specified and described, containing eleven lots of 100 acres each, more or less, except the 11th lot, which contains 120 acres more than the others. The lots marked Winters, Treadwell’s and Bolton’s I have sold to the said persons; and I further direct said Cass to begin with lot No. 1, and to sell until the sum he is ordered to raise by the execution is obtained.
    “If the said A. B. Cass has not sufficient authority to sell these lands, I then forbid his proceeding. Witness my hand, this 19th day of March, 1828. JESSE BENTON.”
    The land was sold in accordance with the directions of Benton on the 20th of March, 1828, and Kimbrough became the purchaser of sundry lots, containing 1192 acres, for the sum of $1519, which was entered as a credit on the execution, and the same satisfied to that extent. Benton was not in possession at the time of the levy or at the time of the sale. He soon after the sale took possession.
    Kimbrough instituted an action of ejectment against Benton in the circuit court of Shelby, and the plaintiff was defeated in the supreme court, on the ground that complainant did not show that Benton had the legal title, or that he was in possession at the time of the sale of the land at execution sale. The register’s office showed no title in Benton either legal or equitable. Benton sold the land subsequently to one Benjamin Duncan, who purchased without knowledge of Kimbrough’s claim. He acquired knowledge of the claim before he paid any considerable part of the purchase money, and held by title bond.
    Kimbrough thereupon filed this bill against Benton and Duncan, and the securities in the judgment rendered against Benton in 1827. The prayer of the bill was, that the title to the land be divested out of Benton and Duncan, and vested in complainant, and if this, however, could not be done, that in that event the satisfaction entered on said execution by complainant should be vacated, and that execution at law be ordered to be issued, &c.
    This bill was taken pro confesso as to Benton, and Duncan answered, disclosing the facts in reference to himself as above stated. Replication was filed and proof taken, and it came on to be heard before chancellor McCambell, at the November term, 1841, of the chanceiy court at Sommerville. He being of the opinion that complainant was not-entitled to relief, dismissed the bill at the cost of complainant.
    Turley, for complainant.
    It was insisted below, that a court of chancery had no jurisdiction of this matter; that complainant’s remedy was at law by action of ejectment and not in equity. But I apprehend the court will have no difficulty in sustaining the jurisdiction, provided the complainant shows he has any rights to be enforced.
    A court of chancery always entertains jurisdiction, where the remedy at law is not plain, unembarrassed, adequate and complete. 1 Sto. Eq. 53. The jurisdiction might also attach on the ground, that this is a trust fund. 1 Sto. Eq. 505-6-7, &c. And because the question of Duncan’s being a bona fide and innocent purchaser, is one that is generally confined to a court of equity. 3 John. Dig. 329: 1 Cow. 622.
    If complainant acquired any right or title to this land by virtue of the levy and sale by the coroner, we think he is entitled to have it decreed to them. And if Benton had any right or title himself, complainant certainly acquired that right by virtue of the levy, sale, and coroner’s deed.
    No man, who reads this record, can doubt that Benton owned the land in controversy at the time of the levy and sale. He had previously leased it out to complainant. He always held himself out as the owner. In fact, always said he was the owner. He had previously to the levy and sale by the coroner, sold and conveyed parts of it himself to different purchasers. He divided it into lots and directs how they shall be sold— shows which belongs to him and which not, and which he had sold to others; and states that another tract levied on by the coroner was not his and never had been. He is afterwards in possession and sells out to defendant, Duncan, without showing or pretending to have acquired any subsequent title, and shows none up to this time, but permits this bill to be taken as confessed against him.
    From these and other circumstances, it is manifest he did own this land at the time of the levy and sale by the coroner. But when this case was before the court in 1834, it was held, these were equitable circumstances, which could not be noticed in action of ejectment — that the court could not look beyond the judgment, execution, levy, sale and coroner’s deed in an action at law. See Kimbrough vs. Benton, in appendix.
    In a court of chancery we insist, he and those claiming under him are now estopped from denying his title. If a man even Stand by and see another sell his estate without objecting or making known his title, it has been repeatedly held, that he is estopped, and shall never afterwards be permitted to assert his title. How much more then shall he be estopped when he encourages and promotes the sale and purchase, as was done in this instance ?
    It is fair, we think, to presume then, that the only defect in Benton’s title was the want of registration of his title papers. If there had been any other defect, he would have stated it in his answer and shown it by the proof. But this he has not done.
    Supposing then that the only defect in his title was, that his title papers were not registered, still it was subject to execution sale, being an imperfect, inchoate, legal title. 3 Yerg. 171: 10 Yerg. 1. And the sale by the coroner and his deed passed that title. — Ibid. And although it is an imperfect, inchoate legal title, yet Benton’s withholding and suppressing his title and afterwards conveying the same to defendant Duncan, will give this court jurisdiction and the complainant a right to resort there for relief and to have the title decreed to him. 3 Yerg. 171, Vance vs. McNairy: 1 Hawkes Rep. 87, Price vs. Sykes. I can see no .difference, in effect, between Benton’s conveying, himself, to Duncan and getting some third person to do so, as was the case in 3 Yerg. 171. Armstrong sold and conveyed to Brown; by that conveyance his title passed to Brown and was subject to execution sale, and by the sale became vested in McNairy; no title legal or equitable remained in Armstrong; yet he made the conveyance afterwards to Vance with notice, and the court upon these facts divested the title.
    We ask the court to apply the principles of that case to the one now before them, and in like manner to divest out of these defendants their title and vest the same in complainant. But suppose Benton at the time of the levy and sale had nothing-more than an equitable title, it still might be subject to execution sale by virtue of the statute of Charles 2d and George 2d. At all events, Benton’s conduct at the sale would constitute the complainant his assignee in equity and entitle him to call for the legal title. 1 Hawkes Rep. 87, Price vs. Sylces. In this case Price purchased 60 acres of land at execution sale against Sykes, when Sykes had but an equitable title to 30 acres of it, and it was held that Sykes’ conduct at the sale constituted Price his equitable assignee as to those 30 acres, and entitled him to call for the legal title. Sykes said that the land was his; and the jury found that Price bought with Sykes’ consent. And that was held enough to entitle Price to relief. The sheriff in such sales acts as the agent of the defendant authorized by law to sell his lands. 3 Wash. C. C. R. 546: 10 Yerg. 520: 8 T. R. 2.
    But if we are mistaken in this view of the case, and Benton actually had no title legal or equitable, then we say, that was a fact well known to him, and he practised a palpable fraud on complainant by inducing him to buy lands to which he had no title. And the rule is that fraud constitutes the per- ' son guilty of it a trustee for the person defrauded. 5 Yerg. 215: 2 John. Rep. 573: 11 John. Rep. 555: Sug. Vend. 522. And being a trustee, equity will grant relief in favor of the cestui que trust and divest the title.
    Unless defendant, Duncan, stands in a better situation than Benton, (and we say he does not,) he is not an innocent purchaser for a valuable consideration without notice.
    1st. Because complainant’s deed was registered long before he purchased; and registration is equivalent to notice. It is in /act constructive notice. Fonb. Eq. 207, note: ibid, 139, note: 2 John. Rep. 570: 4 John. Ch. Rep. 70: Fonb. Eq. 418, note: 1 John. Ch. Rep. 298, 398: Sug. Vend. 508, 539: 3 Cond. Rep. 146: 1 John. Ch. Rep. 575.
    2. Because lis pendens is notice. This judgment, execution, levy, and sale were matters of record, and he was bound to take notice of them. Fonb. Eq. 418: 1 John. Ch. Rep. 566, 575: 2 ibid, 158: 1 Hum. 491: 4 John. Ch. Rep. 43: 2 ibid, 155: Cook’s Rep. 119, 126.
    3. Because he held only by title bond, as he says in his answer, when he had notice, and had not paid the purchase money. 6 Yerg. 108: 10 Yerg. 535: 1 Hum. 491. And being a purchaser from a trustee, with notice of the trust, he becomes 
      ipso facto el trustee. 1 Yerg. 296: 2 Yerg. 193: Sug. Vend. 508, 536-39: Sand. Us. & T. 319.
    But if the court should be of opinion, that complainant is not entitled to the land; then we insist the satisfaction entered on the fi. fa. should be set aside, and another execution ordered to issue against the principal and his securities for the appeal.
    Courts of equity grant relief as fully against the security or guarantee as they do against the principal. 1 Sto. Eq. 178, and authorities cited. It will also correct judgments and other matters of record. 1 Sto. Eq. 179: and authorities cited.
    Barry, for defendant.
    1. In this case the defendants insist that the complainant has shown no ground whatever, on which to obtain the relief prayed. The proof does not disclose that the complainant had any title to the land, either legal or equitable, but rather shows the contrary.
    2. Benton is not shown to have represented himself as having any title to, or interest in the land. All that he is proved to have said or done in relation to the case, is consistent with the idea that he had no interest in the land. The purchaser then was not necessarily or probably misled by him, and therefore the rule '■’■caveat emptor” fully applies. See Henderson vs. Over-ton, 2 Yerg. 396.
    3. It is not pretended that the judgment under which the land was sold is void. Therefore, there being no fraud, the court cannot order the purchase money to be refunded or satisfaction set aside, which is the same thing. 2 Yerg. 396.
    
      
       Note — Lands conveyed by deed, which has not been proved and registed, are nevertheless subject to levy and sale by execution. Vance vs. McNairy et als. 3 Yerg. 171.
      2. In such case it is the duty of the execution debtor, to have the deed registered, or to deliver it to the purchaser at the execution saie, and if he withhold it, equity will divest his title, and vest the legal title in the purchaser. — Do.
      
        3. Where the bargainee of an unregistered deed, sells or voluntarily conveys the land after a levy and sale, the vendee or donee having notice, and procures the original bar-gainee to make the deed to his vendee or donee: Held, that this was a fraud upon the purchaser at execution sale, and equity will divest the title and vest it in such purchaser. — Do.
    
   Gkeen, J.

delivered the opinion of the court.

The bill alledges that James Kimbrough obtained judgment against Jesse Benton for upwards of three thousand dollars, issued an execution, and caused it to be levied on a tract of latid, in Shelby county, as the property of Benton, which land was sold by the coroner, and Kimbrough became the purchaser, and the execution was returned satisfied. Kimbrough obtained a deed from the coroner, and' prosecuted an action of ejectment against Benton, to recover possession of the land, but was defeated in his action, because he could not show that Benton had such a title as would subject said land to be sold by a fi-fa., nor nor did he show, that Benton was in possession of the land at the time it was sold as his property, so as to estop him from requiring the plaintiff to show title in himself.

1. It is now contended by the complainant, in the first place, that the land ought to be decreed to him, because, as he insists, Benton may be presumed to have had an inchoate legal title, which he did not choose to perfect, by the registration of his deed. But upon this subject there is an entire absence of evidence; we are unable to perceive whether Benton had any title to this land, legal or equitable; and as there is no title upon the records of the country, the proof that he had a deed, which he refused to register, ought to be very clear, before this court would decree the title to the complainant, upon the ground assumed in the case of Vance vs. McNairy, 3 Yerg. Rep. We are not permitted to guess, from his possession and claim to the land, that he had such tide.

2. In the next place, it is insisted the laird ought to be decreed because Benton laid off lots, in which he directed the coroner to make the sale; and it is contended, he thereby assisted in, and promoted the sale, and was thus guilty of defrauding the complainant. We do not think the evidence shows any such interference, as was calculated to induce persons to purchase, or that had any tendency to deceive them as to the title. Itis true, he laid off the tract in lots, as by the statute he had a right to do. But this did not indicate that he had the legal tide. On the contrary, after directing the coroner howto sell the land, he adds in the same me morandum the following sentence, “IfA.B. Cass has not sufficient authority to sell these lands, I then forbid his proceeding.” This was putting purchasers upon their guard, and warning them to look to the title they were purchasing, and so far from inducing them to bid, was calculated to create caution, and induce an examination of the title. Upon neither of the foregoing grounds,, therefore, as we think, has the complainant ah equitable right to this land.

3. Butthe complainant insists that if Benton had no title, either legal or equitable, and practiced no fraud, so as to authorize a decree for the land, the complainant is entitled to have the satisfaction which was entered upon the execution set aside, that he may proceed at law to enforce satisfaction of his judgment.

In the case of Whitmore vs. Parks, determined at the present term, it was decided that the purchaser at sheriff’s sale, coidd not recover back his purchase money, although he might acquire no title to the property purchased. We donotperceive that the fact, that the plaintiff in the execution becoming the purchaser, places him in any better situation, in this respect, than any other person would be. If a plaintiff were permitted to sell property without any regard to the title of the debtor in the execution, and then failing to hold it, he was allowed to come into equity and set aside the satisfaction, without showing fraud or misconduct on part of the defendant, the greatest mischief would result; such a practice cannot be tolerated. Upon the yfhole, the decree must be affirmed, and the bill dismissed with costs.

See Kimbrough vs. Benton, Appendix, post.  