
    
      John Bauskett vs. Robert Holsonback and Eliza Bodie.
    
    Where a party pays the purchase money of land, and takes the conveyance to a third person, he has only a resulting trust' which is not the subject of levy and sale under an excution, even though the transaction was fraudulent and intended to protect the land from the claims of creditors.
    Where the sheriff levies and sells land as the property of a party who has, in fact, no interest in the land, but only lives on it with the real owner, a joint action of trespass to try titles will not lie by the purchaser against the party, as whose property the land was sold, and the real owner. The sheriff’s deed being no estoppel as against the real owner, does not, in a joint action, operate as an estoppel against the party as whose property the land was sold.
    
      Before Bütler, J. at Edgefield, July, extra Term, 1845.
    This was an action of trespass to try titles. The plaintiff claimed under a deed from the sheriff, dated the 7th. March, 1838, which recited that the land had been levied and sold under a fi. fa. of Seaborn Randall against Robert Holsonback. The case of Randall against Holson-back was an action of slander, commenced in December, 1834, in which a judgment was obtained and entered up in November, 1835. It appeared that the land had been sold for partition in 1832, by the Commissioner in Equity, as part of tha estate of Derick Holsonback, and bought by Phillip Brogden. Brogden sold it to one Bryant, who, as it was said by a witness who had seen the deed, but the deed itself was not produced, conveyed it to one Lithgo. Lith-go, in January, 1835, executed a deed conveying it to Eliza Bodie. About the time this conveyance was executed, and not before, the defendants entered on the land. Eliza Bodie was the mistress of Robert Holsonback, and it was contended that the deed was made to her for the benefit of Holsonback, and to defeat the recovery in the then pending action of slander, and that Holsonback had paid the purchase money. His Honor, the presiding Judge, charged the jury that, if it was true that Holson-back had paid the purchase money, and that the deed was made to Eliza Bodie for his benefit, yet the legal title was in Eliza Bodie, with a resulting trust in his favor, which could not be the subject of levy and sale under a fi. fa. so as to defeat the legal title. He therefore thought there could be no recovery against Eliza Bodie, but that Holson-back was estopped from disputing the plaintiff’s title, and, as against him, there might be a verdict. The jury found a verdict for both defendants. The plaintiff appealed, and now moved for a new trial.
    Wardlaw, for the motion.
    
      Griffin, contra.
   Curia, per Fuost, J.

The plaintiff shewed no title to the land. It was not objected, on the trial, that the title of Eliza Bodie was not supported by documentary proof. The plaintiff, in fact, claimed under the title of Eliza Bodie, insisting that the deed from Lithgo to her was a fraud on Holsonback’s creditors, the purchase money of the land having been paid by him, and the conveyance made to Eliza Bodie for his benefit, with the view of placing it beyond the recovery of Randall, for damages in the then pending action of slander. The report states that the whole question turned on the operation of that deed. The case was submitted to the jury, on the proof that Eliza Bodie had paid the purchase money, and under the instruction of the court, that, if Holsonback had paid the purchase money, yet the legal title was in her, and the land not subject to levy and sale under a ji. fa. against Holsonback. The verdict of the jury in favor of Eliza Bodie may be supported on the proof that she paid the purchase money, and cannot be disturbed, unless the instruction of the presiding Judge was erroneous. Besides that, it seems to have been conceded on the trial, that the documentary title was in Eliza Bodie. It was not necessary for her to prove a grant, because the plaintiff, claiming under Holsonback, was estopped by the decree in Equity to deny that the land had been Derrick Holsonback’s. Eliza Bodie was in possession, claiming under this title, and her possession must be referred to the title, independent of the proof that she actually entered under it.

But it is insisted the jury were erroneously instructed on the law. The case of Lowry vs. Pinson, 2 Bail. 324, has no application, because, in that case, the title to the land was in the defendant in execution, and his conveyance to another, by collusion between them, to defeat the recovery of the plaintiff in execution, being avoided for fraud, the title of the defendant was not transferred by the deed. In this case, the title never was in Holsonback, Fraud may avoid a deed, but it is manifest it cannot operate a conveyance of the legal title. The most that can be affirmed is, that if Holsonback paid the purchase money, the legal estate of Eliza Bodie might be charged with a resulting trust for him. But the doctrine of implied or resulting trusts belongs exclusively to the Court of Equity. They cannot be levied .under a ji. fa. nor enforced in this court; Harrison vs. Hollis, 2 N. & McC. 578.

The verdict in favor of Holsonback must also stand. The exclusive legal title in Eliza Bodie vests in her the exclusive legal possession. So far as the rights of the parties in. this action are affected by their co^ habitation, Holsonback lived with Eliza Bodie. He has neither title nor possession, nor the right of possession, and so has not a scintilla juris. A judgment against him would give the plaintiff no right, except to a writ of possession; by which (ex parte Black, 2 Bail. 8,) Eliza Bodie might be ejected, and would present the inconsistency of two judgments on the same issue ; one for the plaintiff, by which he shall have process to turn out the defendant from land, whose title to it is established by the other judgment. If the plaintiff has not the benefit of the estoppel of Holsonback, it is the consequence of his own act in the joinder of Holsonback with Eliza Bodie in the action. The motion is refused.

Richardson, O’Neall and Evans, JJ. concurred.

Wardlaw, J.

I concur in the result of this case, but nqt in the approval of the case ex parte Black.  