
    *Williamson v. Gordon's Executors.
    Decided, Nov. 28th, 1816.
    i. Real Estate — Equities In — Priority—Right to Leg-al Title — Case at Bar.- -A purchaser of Land, incumbered by a Deed of Trust (duly recorded.) for securing a debt, haying bought of the debtor with consent of the Trustee, and paid the purchase money, by discharging the debt secured by the Deed, and by paying other sums of money; having also a Deed of bargain and sale from the debtor, (though not recorded within the time prescribed by law,) and being put in possession of the land; he was adjudged to have the preferable right to call for the legal estate outstanding in the trustee, and to be protected against the claim of a creditor suing in equity upon an agreement on the part of the debtor, (bearing date before the purchase, but subsequent to the Deed of Trust.) to secure him by a Deed of Trust on the same land; of which agreement the purchaser had no notice, when he made the contract and paid his money.
    
      2. Same — Same—Same—Same—Same;—of two equitable incumbrancers, be that bath the preferable right to call for the legal estate, is entitled to preference; though he hath not actually got it in, nor got an assignment, nor even possession of the deed conveying the outstanding legal title; and though his lien is of subsequent date to the other incumbrance.
    On the 20th day of October, 1807, Alexander St. Clair of the town of Staunton executed a Deed to a certain Samuel Clarke, conveying a House and part of a Dot, “then in the possession of Doctor William Bays,” in the said town, in trust to secure the payment óf certain sums of money, therein specified, to Samuel Moore surviving partner of Robert Moore and Son, and to Thornburgh and Miller of Baltimore; which Deed was duly recorded, in April, 1808.
    The said St. Clair being indebted to Thomas Gordon in a large sum of money by Bond, on which a suit was pending in Augusta County Court, a written agreement under seal was entered into on the ISth of February, 1808, between him and the Attorney for Gordon, that he should confess Judgment on the Bond at the ensuing Term; that Execution was not to issue, (except for the purpose of keeping it alive,) for the space of two years; that he should transfer a certain Bond in part payment of the Judgment; that the balance should be paid, in equal moieties, on the 1st day of July, 1810, and on the 1st day of July, 1811, respectively; and that he should secure the payment thereof by a Deed of Trust to be executed, to the said Attorney as Trustee, upon a certain tract of Land in the County of Augusta, and on his “house and lot in Staunton in which Dr. Bays lives.” After this agreement was executed, St. Clair confessed the Judgment, and transferred the Bond, mentioned in the agreement, but failed to execute the Deed of Trust, according thereto.
    On the 29th of October, 1808, George Williamson having purchased of the said St. Clair, with the assent of Samuel Clarke the Trustee aforesaid, the property mentioned in the Deed of Trust of October 20th, 1807, and also another house, and a piece of ground adjoining, without notice of the agreement between St. Clair and Gordon; the said St. Clair conveyed the same to the said Williamson, by Deed of bargain and sale, which, however, was not recorded until the ISth of November, 1813; but possession was, according thereto, delivered to Williamson, *who thereupon undertook to pay the aforesaid debts to Samuel Moore and to Thornburgh and Miller; and also another debt, on behalf of the said St. Clair, to a certain John Comegys; but Clarke, the Trustee, never made any release or conveyance to Williamson. To secure the payment of the debt to' Comegys, another Deed conveying the same property to Andrew Barry, Joseph Cowan and Samuel Clarke, in trust for that purpose, was executed by Williamson, as owner thereof, on the said 29th day of October, 1808; which last mentioned Deed was recorded on the 26th day of December, 1808.
    In conformity with his contract, Williamson paid off and fully satisfied the purchase' money for the said property, by paying the debts aforesaid to Samuel Moore, Thorn-burgh and Miller, and John Comegys before he had any notice of Gordon’s claim.
    On the 2d of April, 1810, a suit was. brought by Gordon, in the Superior Court of Chancery for the Staunton District,, against St. Clair, (without making Williamson a party).upon the agreement of February 15th, 1808; in which suit a Decree was made, directing a sale of the property mentioned in the said agreement to satisfy the claim of the plaintiff.
    The Commissioner, appointed to carry that Decree into effect, having advertised the property for sale, a Bill was exhibited in the same Court by George Williamson against Alexander St. Clair, and Gordon’s Executor; (he being dead;) praying an Injunction to prevent the intended sale, and a Decree quieting the complainant in his possession; or if that could not be done, that the money, advanced by him for the purchase, with interest thereon from the time when paid, together with certain other monies advanced by him to the said St. Clair, with interest, might be first reimbursed out of the sale of the said property ; and for general relief.
    Upon the Bill, Answers, Exhibits, and Examinations of Witnesses, the foregoing appeared, in substance, to be the state of the case.
    Chancellor Brown, (having granted the Injunction prayed for,) afterwards, on the hearing, pronounced the following opinion and Decree.
    “The Court is of opinion that the agreement, entered into on the 15th day of February, 1808, between the defendant St. *Clair and the agent of Gordon’s. Executors created a specific lien in equity on the property in controversy ; that is to say, on the House and Dot' in Staun-ton, on which Dr. Bays lives; and that the transaction between the plaintiff and the defendant St. Clair, with the assent of the Trustee Samuel Clark, gives the said plaintiff only an equitable claim upon the said property, in as much as the legal title thereto is yet outstanding in the said Samuel Clarke. Both the parties before this Court being then equitable and bona fide claimants, this Court considers them entitled to satisfaction, according to the priority of their claims. So far as the plaintiff has discharged the debts due to. Thornburgh and Miller, and to Moore and Son, this Court will place him in their shoes. As to the claim therefor, he has priority to Gordon’s Executors, because this lien is anterior to Gordon’s; file Deed of Trust creating it bearing date October, 1807: but the Court will not suffer him to tack, to this claim, the claim for money paid to Comegys; much less will this Court suffer him to tack to it the other two debts, due to him from the defendant St. Clair. The money paid to Comegys cannot be tacked, because the plaintiff has not the legal estate, and has no equity in this claim which entitles him to take from the defendants, Gordon’s Executors, the benefit of their decree for the sale of this property. And the latter debts cannot be tacked, as against another incumbrance upon the property, they not having been contracted upon the credit of this fund. The equity, then, which stands next in point of priority to that under tne Deed of Trust in favour of Thornburgh and Miller, and Moore and Son, is the equity of Gordon’s Executors. Then follows the plaintiffs equity under the purchase from the defendant St. Clair, and the consequent payment of the money to Comegys. If the plaintiff claims, as a purchaser, not as an incumbrancer, then, though he was purchaser without notice, at the time of his contract and the payment of his money, yet he is not purchaser of the legal tille; and this Court will not aid a purchaser in taking away a prior equitable incumbrance fairly, attached to the specific subject.”
    “But the Court thinks it would'be proper, under the circumstances of this case, to direct a sale of the two slaves mentioned in the Deed of Trust, exhibited with the answer of ifthe defendants, Gordon’s Executors, and an appropriation of the proceeds thereof towards the satisfaction of the debt due said Executors. ” 
    
    “It is therefore decreed that the Injunction be dissolved, (but without damages,) so far as to permit the Commissioner appointed in the cause of Gordon’s Executors against St. Clair and others to proceed to sell the House and Dot in Staunton on which Dr. Bays lives. But the said Commissioner is hereby' directed, in the first place, to sell the two slaves aforesaid in the manner directed by said Deed of Trust, and to apply the nett proceeds of said sale to the credit of the Decree in favour of Gordon’s Executors; and, out of the proceeds of the sale of the House and Dot, the said Commissioner shall pay over to the plaintiff the amount of the money, paid by him to Samuel Clarke for Thornburgh and Miller, and Moore and Son; that is to say, the sum of 8735,65, with interest thereon from the 1st of January, 1809, ’till paid; that, out of said proceeds, he then discharge the residue of the debt to the defendants Gordon’s Executors; and, if any balance be left, that he pay over the same to the plaintiff.”
    Erom this Decree the plaintiff appealed.
    Wickham for the Appellant.
    It is clear, ihat the legal estate is outstanding in the Trustee, Clarke; that both Williamson and Gordon’s Executors are equitable incum-brancers ; and the question is, whether Williamson has a preferable right to call ; for the legal estate? Eor if he have such 1 right, it is the same as if he had the estate, and he may protect himself thereby : if he have not, then the incumbrances, must be paid according to priority of dates r the maxim being, q«i prior est tempore potior est jure. I admit that, if there be several lions, merely equitable, they attach according to priority of dates: but, if a subsequent equitable incumbrancer get in the legfjl estate, he may protect himself thereby against a prior equitable incum-brancer. 
    
    *1 admit, too, the generalrule, that. if a puisne incumbrancer buy in a prior mortgage, the legal estate being in a Trustee or any? third person; the buying in such prior mortgage will not avail; but, where the legal estate is standing out, the incumbrances must be paid according to priority. To this rule, however, there is an exception ; that if any one of the parties have more equity to call for the legal estate, he shall be preferred, 
    
    In this case, Williamson being a bona fide purchaser, without notice of Gordon’s incumbrance, and having paid off the previous incumbrance of the Dead of Trust, with the Trustee’s consent, has the preferable right to call for a conveyance of the legal estate Erom the Trustee; and therefore ought to be protected against Gordon, whose equitable lien was subsequent to the Deed of Trust, though prior in date to the purchase by Williamson.
    Eeigh contra.
    It was not enough for Williamson to pay off the Deed of Trust, with the Trustee’s consent. To entitle him to protection against the claim of Gordon, he should have got in the legal estate by obtaining a Deed from the Trustee ; or, at least, the Deed of Trust should have been assigned, or delivered to him. In Maundrell v. Maundrell, 10 Vesey, jr. 27l, in which case that of Willoughby v. Willoughby, and other cases on this subject are reviewed, the doctrine is laid down, that “a subsequent incumbrancer cannot protect himself, by a satisfied Term, against a prior incumbrance, unless such Term be in some sense got in; either by an assignment, or making the Trustee a party to the instrument, or taking possession of the Deed creating the Term;” neither of which precautions was taken it; this case. In Willoughby v. Willoughby the point decided was not, as Mr. Wick-ham supposes, but only, that if the subsequent purchaser, without notice of the prior purchase or incumbrance, have the first ana best right to call for the legal estate, then, if he gets an assignment of it, a Court of Equity will not deprive him of bis advantage. So, in Wilker v. Boding-ion, the case was, that with the privity of the Trustees, one of the cestuys que trusts, by a Deed, reciting the Trust Settlement, assigned all his estate, right and title therein to the purchasers.
    *The present case, therefore, is not like either of those cases, but rather resembles so much of the case of Shepherd v. Titley, 2 Atk. 348, 354, as related to Sir Thomas Peyton, whose situation the Court held, was not distinguishable from that of any other puisne incumbrancer; although he had purchased from the mortgagor, and the first mortgagee had agreed (a second mortgage, of which Peyton the subsequent purchaser had no notice, having intervened) that he would convey to him the property so purchased, when his mortgage should be satisfied, but his mortgage not being satisfied, had not made the conveyance.
    Wickham in reply.
    If Hr. Leigh’s understanding of the doctrine, that the in-cumbrancer, who has the preferable right tó call for the legal estate, may avail himself of that right, demand a conveyance of the legal estate, and protect himself under it, be correct, the rule amounts in. effect to nothing.
    
      
       Real Estate — Equities in — Priority—Rights to Legal Title. — where a purchaser of real estate has not the legal title, and a subsequent purchaser of the same property has paid his money, and has not indeed the legal, title but the best right to call for the legal title before he receives notice, he shall be entitled to priority, notwithstanding he has not actually acquired such title. To this effect, the principal caséis cited in Preston v. Nash, 75 Va. 957; Preston v. Nash, 76 Va. 9; Camden v. Harris, 15 W. Va. 563.
      In Hoult v. Donahue, 21 W. Va. 300, itis said; “He who buys an equitable title in ignorance of its nature, and under the belief that he is getting a good legal title, may, therefore, protect himself, by getting in the legal title, even where the effect is wholly to exclude equities prior to his own. Baggarly v. Gaither, 2 Johnes Eq. 80; Boone v. Chiles, 10 Pet. 177; Williamson v. Gordon, 5 Munf. 257; The Mutual Assur. Soc. v. Stone, 3 Leigh 218; Cox v. Romine, 9 Graft. 27; Bayley v. Greenleaf, 7 Wheat. 46: Camden v. Harris, 15 W. Va. 554.”
      See principal case also cited with approval in Mutual Ass’n Soc. v. Stone, 3 Leigh 236, and distinguished in Colquhoun v. Atkinsons, 6 Munf. 557.
    
    
      
       Note. The defendants stated in their answer, that when the real property was advertised to be sold, under the Decree in their favour against St. Clair and others, the sale was at first postponed, on consideration that the said St, Clair would give an additional incumbrance on two negroes:, which was done.-Note in Original Edition.
    
    
      
       Powel on Mortg. 473.
    
    
      
       Ibid. 479.
    
    
      
       Brace v. The Dutchess of Marlbrough, 2 P. Wms. 495.
    
    
      
       Powell on Mortg. 477; Wilker v. Bodington, 2 Vern. 599; Willoughby v. Willoughby, 1 Term. Rep. 783, 768, 773-4.
    
   November 28th, 1816.

JUDGE ROANE

pronounced the Court’s opinion, “that the Decree is erroneous in this, that, as the Appellant had the preferable right to call for the legal estate of the premises in question, outstanding in the Trustee Clarke, he ought to have been protected against the claim of Gordon’s Executors in the proceedings mentioned.’’

Decree reversed, with costs; and this Court proceeding, &c., it was farther decreed and ordered, “that the Injunction awarded the Appellant be made perpetual, and that he be quieted in the possession of the houses and lots in the Bill and proceedings mentioned, and recover his costs in the Court of Chancery. But this Decree is to be without prejudice to any suit, which the said Gordon’s Executors may be advised to bring, to subject the stone house lot, also in the proceedings mentioned, to satisfy their judgment.”  