
    
      Syrus and Others v. Allison.
    July, 1843,
    Lewisburg.
    (Absent Cabell, P„ and Brooke, J.)
    Ejectment* — Demise of Insolvent Debtor. — Where a person taken in execution is discharged as an insolvent debtor, the estate in lands belonging to him at the time of such discharge is. by the act in 1R. C. of 1819, ch. 184. § 34, p. 538, so completely vested in the sheriff of the county wherein such lands lie, that an ejectment for such lands cannot afterwards be maintained on the demise of the insolvent debtor, while the execution remains unsatisfied.
    This was a supersedeas to a judgment of the circuit court of Cabell, in an action of ejectment for lands in that county. The declaration was filed in April 1838, and contained two counts; the first upon the demise of William Allison, the second upon the demise of Stephen Wilson. Thomas Syrus, George P. Brumfield and Willis M’Keand were admitted defendants, and pleaded the general issue. At the trial a special verdict was returned, which found that William Allison, one of the lessors, : was discharged from custody on the 27th of : June 1826, under the act for the relief of insolvent debtors, by the warrant of two* : justices of the peace, and then and there rendered a schedule, containing no estate of any kind; “that he has acquired no title, or seisin, or right of possession to the land in controversy, by possession or any otherwise howsoever, since he took the insolvent5 debtor’s oath as aforesaid, but that his only title or right was acquired before that time;” that upon taking the oath aforesaid; the said William Allison made no-conveyance of the land in controversy to the sheriff; and that the execution described in the warrant and schedule still remains. due and wholly unpaid. (The execu-201 tion appeared by the *warrant and schedule to have been at the suit of William Anderson for the benefit of John haidley.) If, upon these facts, the court should be of opinion that the suit for the land could be sustained upon the demise of William Allison, then the jury found for the plaintiff, on that demise, the land laid down in the plat of the surveyor (returned in the cause) within certain described lines, and one cent damages. But if the court should be of opinion that the action could not be sustained upon the demise of the said Allison for the said land before described, (“and to which the said Allison has not acquired any rightor title whatever as aforesaid, since taking the insolvent debtor’s oath as aforesaid”) then they found for the defendants. As to the demise laid in the declaration in the name of Stephen Wilson, and all the residue of the land in the declaration mentioned, they found for the defendants.
    On the 2d of October 1839, the court pronounced its opinion that the law on the special verdict was for the plaintiff, and entered judgment that the plaintiff recover against the defendants his term to come in the lands mentioned in the declaration as demised by Allison, and described as aforesaid, together with the damages assessed and the costs of suit; “subject however to sale by the sheriff of Cabell county who was in office on the 27th June 1826, for the satisfaction of the judgment creditor at whose suit the said William Allison took the oath of insolvency, as found in the verdict.”
    B. H. Smith for plaintiffs in error.
    It is plain that the judgment must be reversed; for the verdict, while it ascertains that Allison acquired no title to the land since he took the insolvent debtor’s oath, does not find that he had any title before that period., But a reversal on this ground would merely lead to a new trial; whereas there is another ground on which the court should give judgment that the plain-202 tiff in ejectment *take nothing. Rrom the time that Allison was discharged as an insolvent debtor, he had no estate in the lands in controversy: all the estate which he had therein before that discharge, became, from the time of the discharge, vested in the sheriff of the county wherein the lands lie. 1 R. C. of 1819, ch. 134, ‘i 34, p. 538; Shirley v. Long, 6 Eand. 735; 1 Rob. Pract. 554, 5. The recent decision in Dunn v. Price, 11 Leigh 203, is not in conflict with Shirley v. Long; at least not as it regards the present case. Ejectment can only be sustained upon a legal title. Adams on Ejectment 32, 33, and notes. In Hopkins &c. v. Ward &c., 6 Munf. 38, it was held that the cestui que trust might maintain ejectment upon a demise in his own name. But there, though the land was conveyed to a trustee, the trustee had by his deed declared the land to be in trust for the benefit of another; and by the statute, the possession of the trustee in such a case is transferred to the person entitled to the use, as perfectly as if he had been enfeoffed with livery of seisin. 1 E. C. of 1819, ch. 99, l 29, p. 370. _ And though in that case the land was subject to a charge created on it in favour of the trustee, yet the purposes of the trust had been satisfied as to the trustee, and a release of this charge might well have been presumed. Whereas, in the present case, it is expressly found that the amount of the execution still remains wholly unpaid, and there is no ground on which a conveyance can be presumed from the sheriff to the insolvent debtor. The facts of this case as effectually preclude such presumption, as they did in Hodsden v. Staple, 2 T. E. 684, where the unsatisfied term outstanding in trustees barred the recovery of the heir at law, though he claimed subject to the charge. Allison had, at most, but an equity of redemption; and there is no case in which the holder of such a mere equity can maintain ejectment. See Adams on 203 Ejectment 32, 3, and 81-8. *After a mortgage is forfeited, ejectment cannot be maintained by the mortgagor. There can be no reason in the present case for departing from the general rule which requires a legal title to maintain the action: there is no principle, nor any consideration of policy, which calls for such departure.
    No counsel argued the case for defendant in error.
    
      
      See monographic note on “Ejectment” appended to Tapscott v. Cobbs, 11 Gratt. 172.
    
   STANARD, J.

The special verdict in this case expressly finds that the lessor of the plaintiff has acquired no title whatever to the land in controversy since he took the oath of insolvency, and does not distinctly find that he had title before. Though I think it highly probable that there was satisfactory proof of such previous title, (for unless there was, the enquiry into the effect of the oath of insolvency, and of the discharge of the insolvent, was useless, and a special verdict unsuited to the case) and that the jury intended to find that fact as a part of the case, yet the strict rules which govern the construction of such verdicts seem to forbid that a fact, indispensable to make any case for the lessor of the plaintiff, should be supplied by implication. Without that fact, the lessor of the plaintiff could not recover, though his oath and discharge as an insolvent left in him a right that would support an ejectment for land owned by him at the time of taking the oath. If then such an action could be supported notwithstanding the oath of insolvency, the special verdict would probably be deemed imperfect, and the proper disposition of the case would be a reversal of the judgment of the court, and the award of a venire de novo. Should it, however, be the opinion of this court, that the effect of the oath and discharge of the lessor of the plaintiff as an insolvent, is to transfer his title in lands to the sheriff of the countj' in which they may be situate, so as to disable him, at least *while the debt remains unsatisfied, to .maintain an action of ejectment on his previous title, in such case the fact of such previous title becomes immaterial, a venire de novo to supply it becomes useless, and the special verdict in this case contains matter sufficient on which final judgment can be rendered.

Does then the legal title of the insolvent, in lands owned by him at the time he takes the oath and is discharged, pass from him and vest in the sheriff of the county in which the lands are situate; and can the insolvent maintain ejectment for such lands on his demise, while the debt under the execution, for which he took the oath and was discharged, remains unsatisfied? The express words of the statute furnish an affirmative answer to the first member of the interrogatory; and from it, a negative answer to the second member seems to be a necessary consequence. The statute declares that all the estate and interest that the insolvent has, and can lawfully depart withal, shall vest in the sheriff of the county in which the lands may be. It is not a qualified or equitable title, or a right in the nature of a lien, that the law declares shall be vested in the sheriff, but all the estate and interest therein of the insolvent. Such being the explicit declaration of the statute, there is no room for a constructive doubt of the intention of the legislature, incompatible with the language of that declaration, or impairing its force. The only question that could arise would be the competency of the statute, by such a provision, to work the transfer of the title from the insolvent to the sheriff. On this there can be no doubt. The same legislative power which gives to a deed sealed and delivered the effect of transferring the title of the party sealing and delivering, to his grantee, or which gives to the conveyance of a commissioner of the court of chancery the effect of transferring the title of parties to the suit in which the decree appointing the commissioner is rendered, is ^competent to transfer the title of the insolvent, as a consequence of his oath and discharge as such.

This naked question has not (as far as I know) been distinctly adjudicated by the court of appeals. But in the case of Shirley v. Long, 6 Rand. 735, the language of the judges is consonant with the opinion now expressed. And from the opinions of judge Carr and president Tucker, and the general concurrence of the other judges, in the case of Ruffners v. Lewis’s ex’ors &c., 7 Leigh 720, it seems that such was the opinion of the whole court. The cases of Stoever v. Stoever, 9 Serg. & Rawle 434, and Ross &c. v. M’Junkin &c., 14 Id. 364, (for a reference to which I am indebted to my brother Allen) shew that a similar decision has been made by the courts of Pennsylvania, as to the effect on an insolvent’s title and right of action, of his assignment and discharge under the insolvent laws of that state.

The opinion of the court is, that the judgment of the court below be reversed, and judgment on the special verdict entered for the plaintiffs in error.  