
    W. J. Webster vs. R. H. Hill.
    Chancery Sale. Of land. Confirmation of, does not vest the title. The mere confirmation of a sale of real estate by decree of the Chancery Court, has the effect only to complete the sale; it does not vest the legal title.
    FKOM MAURY.
    This was an action of trespass quare clausum fregit, instituted by Hill against Webster in the Circuit Court of Maury county. The land upon which the alleged trespass was committed, is represented in the proof, as “wild and unenclosed,” and not in the actual possession of any person. The plaintiff purchased said land at a Chancery sale, and based his right of action upon a decree of the Chancery Court at Columbia, confirming said sale. The sale was on a credit, and the decree of confirmation does not purport to vest the title. The decree of confirmation was unregistered. The Court, Judge Martin presiding, at the April Special Term, 1855, permitted the proceedings of the Chancery Court to be adduced in evidence, by the plaintiff, and charged the jury that said decree of confirmation clothed the plaintiff with a sufficient legal title to enable him to maintain this action. There was verdict and judgment for the plaintiff, from which the defendant appealed in error to this Court.
    L. D. Myers, for the plaintiff in error:
    In order to maintain the action of “trespass quare clausum fregit,” the plaintiff must have had actual exclusive possession of the land at the time of the commission of the tresspass.— 1 Chitty on Plead’s, 174-75; 2 Greenleaf. Or, he must have the legal title to the land, which, in the absence of any adverse possession, gives to the owner constructive possession. A mere right of possession, or right of entry, is not sufficient to support this action. — ’ll Johnson, 385; 9 Yer., 310-13.— Polk vs. Henderson.
    
    The title to land that will support the action of “trespass quare clausum fregit,” without actual possession, must be a clear and perfect legal title, this being an inflexible rule of law, whenever the action depends on the title.— 1 Swan, 146, Rogers vs. Ca-wood.
    
    According to the policy and provisions of our acts of registration, there can be no perfect legal title to land until it has been duly registered, and until which is done the title cannot be read in evidence in any suit depending on the title. — Act of 1715, ch. 48, sec. 5, pp. 575-6, Nich. & Car.; 1 Swan, 146, and the numerous cases there cited.
    The defendant in error, Hill, has no registered title; and for this defect alone, if there were - no other objections, he has not such a perfect legal title to the land as will sustain the action of trespass in absence of actual possession.
    We insist that Hill has no title, either legal or equitable, to the tract of land from which the timber sued for in this case was cut. The sale under which he claims, was void for uncertainty, and for discrepancy between title of the case in report of sale, and that in the original proceedings referred to in the decree of confirmation. '
    But if Hill has any title whatever to the land, it is an equitable and not a legal title' — a mere right of possession or right of entry. The decree confirming report of sale does not purport to invest him with the legal title, but in fact retains the legal title to secure the payment of the purchase money. The payment of the purchase money is made by the decree a condition precedent, on performance of which Hill was to have the legal title conveyéd to him. He has not paid the purchase money, but' has enjoined the same.
    In sales of land made by the Chancery Court of Tennessee, the sale is not binding until report thereof has been confirmed by the Court. Where this is done, the purchaser can be compelled to execute his purchase either by payment of the money, or by giving his notes according to the terms of sale; and he then has a right of possession or right of entry on the estate.— 5 Yer., 244; .4 Hum., 372; 5 Hum., 352; 10 Hum., 275; lb., 610. 2 Hum., 278; 2 Swan, 487.
    The Clerk and Master is the mere agent of the Court to sell the land; and confirmation of his report of sale gives the purchaser an equitable estate, such as is acquired by a purchaser at execution sale by sheriff, (10 Hum., 24.) To give the purchaser a legal title, the Court must, by its decree, divest and vest the legal title in him according to- the provisions of the act of 1801, ch. 6, § 48, p. 220, N. & C.; or, a deed must be made to him by the Clerk and Master or commissioner, by order of the Court, as provided in the act of 1837, ch. 174, §1, p. 121, Nich. Sup. And these are the only two modes by which a Chancery Court in Tennessee can invest persons with the legal title to land. The mere confirmation of report of sale is not sufficient for that purpose.— Vide 10 Yer., 469.
    The cases of McDermott vs. Lowry, 5 Yer., 225, and of White vs. Rogers, 1 Sneed, 68, do not in the slightest degree conflict with any of these positions. In case of Lowry vs. McDermott, two questions only were raised; one was, whether a decree of the Chancery Court, divesting and vesting title to land sold by its order, could be read without producing and reading the bill and answer; and the other, whether the purchaser at such sale was entitled to possession so soon as the purchase was complete, or must wait the two years allowed by law for redemption of land. In that case, the decree divested and vested the legal title, and was registered.
    In the case of White vs. Rogers, 1 Sneed, 68, the Court say, the facts of that case called for no decision án respect to actions founded on legal title; and the •decision is rested mainly on the ground that as Mrs. French was in actual possession at the time of the -commission of the trespass, her possession was in fact, >the possession of her trustee, White, and by which possession he was enabled to maintain the action.
    Lastly, it is insisted that Hill, in no event, has any right to maintain an action for the timber, as the ■same, or so much thereof as W. J. Webster may want, is excepted in the deed of P. P. Webster to Coleman & Ferguson. In Kent’s Com., vol. 4, p. 468, the difference is clearly shown between an exception and a reservation, and that an exception is good when the granting part of the deed is in general terms, as in a grant of a messuage and houses, excepting the barn or dove house; or, of a tract of land, excepting the trees or woods, and that the title to the thing excepted remains with the grantor.
    For these errors it is asked that the judgment below be reversed.
    M. S. Fmerson, for the defendant in error.
    1. Did the Court err in permitting the defendant in error to read the proceedings of the Chancery Court, under which their land was sold, because the decree was not registered? We think not, for the reason that the title, as between the party whose land is sold under a decree, and a purchaser, is valid without registration, and is only “void as against creditors of the person so divested of title, or purchaser from such person, without notice of such decree.” This plaintiff in error is neither a creditor- nor a purchaser front the defendants in the Chancery suit to sell this land— act of 1833, ch. 92,. § 6.
    2. Did the Court err in telling the jury that one-tenant in common could well maintain an action of trespass guare clausum fregit against any ■ stranger for cutting and carrying away timber from the common property? We think this position is fully sustained by all the authorities.- — 1 Chitty’s Head’s, 9 Am. Ed., 65 j Meigs’ Rep., 7-11.
    3. Did the Court err in charging that a confirmation of the Master’s sale, of itself, vests- such title in the purchaser as would enable him to maintain- an action of trespass? This Court, in Lowry and Harris,. held, “that the legal title and a right of entry are vested in the purchaser of land sold under a decree in Chancery, as soon as the report of sale has been-confirmed in the Court which ordered it. This decree, of itself, is conclusive between the parties to it,, and when registered, as required by several laws, is notice to all the world.” — 5 Yerg. R., 225, 226. In West vs. Lanier, this Court also held that cutting and carrying timber from unenclosed lands, was such actual possession as would enable the party whose possession is disturbed, to maintain trespass, even against the better title.— Humph., R., 762; Rogers vs. White, 1 Sneed’s R., 68-72, 300-2.
    4. The deed from Webster to Coleman and Ferguson conveyed a fee sitnple, and then attempts to reserve a part of the granted estate. “A reservation is a clause of a deed whereby the grantor reserves something new to himself out of that which he before granted; but if the reservation be of the grass or timber, or of the vesture of the land, or other profit, to be taken out of the land, then these reservations are void.” Douglass vs. Loch, 30 Eng. Com. Law R., 406, 416, 417; 4 Kent’s Com., 468.
    5. Then, is the clause in said deed valid as an exception ? An exception is always an exclusion from the grant, of a part of the thing granted, or out of the general words and description in the grant, the title to the thing excepted remaining in the grantor as it did before the conveyance was made. But here every part of the land is conveyed by this deed; the bargainor retains no interest in himself of any part of the thing sold; on the contrary, after' he had conveyed the entire estate he attempts to except a part of the estate before granted, for the benefit of a mere stranger. An exception cannot operate to communicate title, but only retains a title already vested. Therefore, this reservation is a mere nullity as an exception. —4 Kent’s Com., 468; 30 Eng. Com. Law R., 406, 416, et seq.; 4 Dev. & Batt. Law R., 433.
   HaeRis, Jh,

delivered the opinion of the Court.

Upon the trial of this cause, his Honor, the Circuit Court Judge, charged the jury that where a tract of-land is sold by order of the Chancery Court in Tennessee, and report thereof is made to said Court, and the same is confirmed by the decree of the Court, “said decree, of itself, vests such title in the purchaser as enables him to maintain this action — vests the title of the land; ,and such is the effect of the decree confirming the-report of sale, although said decree does not on its face and by its terms, purport to divest and vest- the legal title to the land.” To this charge exception is taken by the plaintiff in error, and we think, well taken. The effect of confirming the report of the sale of real estate in Chancery, is nothing more than the completion of the contract, and does not pass the legal title. Where the sale is made upon a credit, it is usual, (as in the present case,) to reserve the legal title until the entire consideration money is paid. And in the absence of such express reservation, the confirmation of the. sale would not have the effect to pass the legal title. This must be done by decree, or by deed in pursuance of a decree for that purpose.

The judgment of the Circuit Court will be reversed, and the cause remanded for a new trial.  