
    Vance’s Heirs and others vs. N. A. M’Nairy.
    Lands conveyed by deed, which has not been proved and registered, are nevertheless subject to levy and sale by execution.
    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 sale; if he withholds it, equitjr will divest his title, and vest the legal title in the purchaser.
    Where the bargainee of an unregistered deed sells, or voluntarily conveys the land, after a levy and sale, and before registration, the vendee or donee having notice, and procures the original bargainee to make the deed to his vendee, or donee, held, that this was a fraud upon the purchaser at execution, and equity will divest the title, and vest it in such purchaser.
    A levy on land is sufficiently certain, if it describes it msuch manner as to distinguish it from all other tracts owned by the same person.
    The same specialty of description in a levy, is not necessary here,-where a deed from the sheriff constituting the purchaser’s title, follows the sale, as would be required were the title to rest on the levy.
    This is a bill of review for errors apparent upon the face of the decree, rendered in the case of N. A. M’Nairy against Samuel Vance, Morgan Brown and William Armstrong, on the 16th day of September 1818, by the supreme court of Errors and Appeals, at that time possessing original jurisdiction. The original bill was filed by M’Nairy, and the decree alleged in substance, that Morgan Brown, in 1803, bought the land in dispute of William Armstrong, the grantee, for a large sum of money paid by Brown, and that on the first of November 1803, Armstrong executed a deed to Brown on the back of the patent or grant, attested by two witnesses, in the words and figures following: “Be it known, that I, William Armstrong, the within named, and to whom this grant issued, for and in consideration of the sum of two thousand two hundred dollars, to me in hand paid by Morgan Brown, have bargained and sold, aliened and confirmed, and by these presents do bargain and sell, alien and confirm unto the said Morgan Brown, his heirs and assigns forever, all my right, title, claim and demand which I have to the within grant, and land intended to be granted by it, and do hereby warrant the said title and claim from me and my heirs, and all claiming under me and them. In witness whereof, I have hereunto set my hand and seal, the first day of November 1803.
    WILLIAM ARMSTRONG, n. s.
    Sealed and delivered in presence of John Brigham and James Ross.”
    That G. M. Deadericlc and others, in March 1805, recovered judgment against said Morgan Brown and others, in the county court of Montgomery county, upon which execution issued, which was levied upon the tract of 3000 acres granted to Armstrong, which included the land in dispute, which was afterwards exposed for sale by the sheriff according to law, and eleven hundred acres, the part now in controversy, sold by metes and bounds to M’Nairy, he being the highest bidder, for three hundred and fifty-one dollars, which was paid to the sheriff, who on the 22d day of December 1812, executed a deed to M’Nairy. It was proved, that on the day of the sale, the defendant Brown delivered the sheriff a plat of the land levied on, and on said plat the land was divided in three lots, and the bounds and number of acres in each lot was specified; and the sheriff was directed by defendant JBrown to sell said land by lots as laid down on said plat, and to sell the lower lot first, which he did. That the said patent with said deed indorsed on it, was sometime after said sale delivered by Brown to Yance, and said Yance on the 25th day of August 1809, applied to said Armstrong, who, at Vance’s and Brown’s request, executed a conveyance for the whole tract to said Vance, who was informed of the sale to, and purchase by jM’Nairy, before he received said conveyance from. Armstrong, and paid said Armstrong no consideration for it. Said Yance afterwards caused the deeds which he had procured from said Armstrong, to be registered in the county of Montgomery, and claimed said 1.100 acres of land, took possession of it, and retained the possession from M’Nairy, and retained and concealed the deed so made by said Armstrong to Brown. The supreme court divested the title of the defendants to the 1100 hundred acres, and vested it in M’Nairy. A petition for re-hearing was presented by said Yance and others, and the petition was overruled.
    The bill of review alleges for error in the decree, 1st. That the levy is not sufficiently certain and descriptive. 2d. That Morgan Brown had not such an interest in said land as was subject to sale by execution. 3d. The proceedings on said sheriff’s sale were void, and no right vested in the purchaser.
    The bill of review was dismissed in the court of chancery, from which an appeal was prayed and granted to this court.
    Thompson, for the complainants.
    1st. The levy is not sufficiently certain and descriptive. It does not state any thing at all definitely, and even the complainant in his bill professes not to know whether the land had been conveyed to Brown and Moore, or to one of them .separately.
    2d. Morgan Brown had not such an Interest in the land as was subject to sale. Suppose a purchaser with his unregistered deed re-sells to the vendor, what is necessary to assure the vendor in the title? Nothing but a destruction of the unregistered deed. Why? Because the title had never passed out of the vendor. If the unregistered deed had passed title, the destruction of the deed would only be a suppression of title; not a confirmation of it in the vendor. It is conceived, that between the execution of the deed and its registration, tbe title rest? in the bargainor. The execution and the registration of the deed are both necessary acts to pass title; they are not of course done at one and the same time. From the beginning of this entire transaction, the thing is in fieri, as much as in the case of livery of sei-sin, where the feoffor is holding out the twig or sod, and the feoffee is reaching out Ms hand to receive them. The title was with the feoffor till the consummation of all things necessary to be done to cause the divestiture.
    Suppose after deed made to B by A, the land is sold by execution against A, and the deed to B should never be registered, is not the execution sale good? How could it be good if the title had been in B at tlm time, upon his unregistered deed?
    The complainant came into a court of equity, not upon any equitable lien; not with his judgment and execution praying the aid of the court to subject equities to the payment of his debt; not to clear away difficulties in the title, or for a discovery; not to compel the defendant to register his deed, that the land might be subjected to sale; not stating that Armstrong had conveyed part of the land to Brown and Moore jointly, or to one of them separately, and praying for a discovery.— But he came into court stating, that the plaintiff had proceeded on his execution at law; and the complainant had purchased land without knowing certainly to whom it had been conveyed, and stating moreover, that he had not acquired the legal title, but praying the court that the defendant Brown might be compelled to aid him in perfecting his title. Now if Brown himself had sold the land, the court would compel him to register his deed; but what obligation was he under to register it for the purpose of giving effect to the execution and sale? It is contended that he was under no bbligation, for the sale must be good and confer the title of itself, or it is void; if void, the defendant Brown was not under any injunction of law or equity to make it good. He was under the general moral obligation that every . , . . ,. , . , , . / man is, to perfect his titles and appropriate his property to the payment of his debts. But after the imperfect attempt to sell this land by execution, it is contended that Brown might have fairly appropriated this land to the payment of any favorite creditor, who could apply to Armstrong upon the unregistered deed as upon abond, and get a title for and to himself. And this would not be decided to be fraudulent without a recurrence to the first question, was the land the subject of sale under execution? Brown’s laying off the land cannot affect the case. The sheriff was about to sell the land under execution, whether lawfully or not was thereafter to be decided; but the defendant without concluding himself on this point, laid off the land, as every debtor had the right to do, that it may sell better. He did not give up the land to be sold; he did not persuade complainant to purchase; he did not assert his right to be good.
    In Bibb’s Reports, 250, Hancock and others vs. Brinker, A purchased at execution sale against B, a lot for which B held the bond of the trustees of the town for a title, the title being in the trustees; B also had deed for the same lot from some third person. filed by Ato perfect his title, it was decided thatihe'ex-ecution sale was void.
    The fact of Brown’s giving the land to his cannot affect the case. The bill is not filed My acradk tor, alleging it was done to defraud his credi^J: praying that the land might be subjected to
    
      F. B. Fogg, for respondents.
    The respondent in the appeal, by his counsel, contends, that the decree of the court of chancery should be affirmed.
    1st. The levy is definitely certain, specifying the tract granted to Armstrong. No other tract was granted to him, and the defendant in the execution had notice of the sale, made a division of the tract into lots, and directed the sheriff what portions to sell.
    2d. The interest of Morgan Brown was an inchoate legal title, which required no act to be done by any person but himself to make it an absolute legal title; for the moment the deed was proved and registered, it would as between creditors of Brown and voluntary purchasers from him, relate to its date, and become a complete legal title. 1 Hawlces’ Reports, 87.
    We contend that the decree below should be affirmed, as the land was subject to sale by virtue of the statute of Charles II, of George II, and our acts of assembly. The statute of Charles being in force by the act of 1715, ch. 31; and the transaction with Yance being a-fraud, equity had jurisdiction to order a void deed to be delivered up, or according to our practice, to divest the title. If Armstrong was seized after he had made a deed with covenant of general warranty, which forever estopped him from claiming the lands, he was seized to the use of Brown, and Brown was, so far as creditors are concerned, the legal owner.
    The statute 29 Charles II, ch. 3, sec. 10, applies to cases where the cestui que trust has the whole beneficial interest in the lands, and the trustee the mere formal legal, title. 17 John. Rep. 351. 1 John. Ch. Rep. 52, 57. 18-John. 94.
   Green, J.

delivered the opinion of the court.

The deed from Armstrong to Brown, vested in the latter the entire right to the land, and nothing remained- to . make the- legal title complete in him against all the world, but the probate and registration of the deed. As between parties,.this deed was valid without registration. By virtue of it, an inchoate legal title was vested, in Brown, and so far as his creditors are concerned, he must be regarded as the legal owner; for the legal , . . . ’ j- r estate is vested m the bargainee, upon the execution of the deed. 2 Saund. on Uses, 5. Brown was present at the sheriff’s sale, divided the land into lots, and directed which should be sold first, thereby claiming it as his. The sheriff’s deed conveyed all Brown’s right to the 1100 acres to M’Nairy. It was Brown’s duty to have delivered to him the title papers, of to have registered the deed from Armstrong to himself. He did not do so, but suppressed the deed, and Yance, himself, and Armstrong entered into a fraudulent combination by which to defeat M’Nairy of his right. The deed being suppressed, and its registration prevented by a fraud, to which Yance was a party, as to him it shall be taken as though it were registered. 2 Call, 198. It is admitted Vance gave no consideration for the deed from Armstrong to him. It was made at the request of himself and Brown, for the consideration Brown had paid Armstrong. Yance was fully apprised of the sheriff’s sale, and of. M’Nairy’s right. In procuring the deed to himself for M’Nairy’s land, and suppressing the one to Brown, he was guilty of a fraud, which as against M’-Nairy vitiates his own deed; and hence the jurisdiction of this court, to decree out of him, whatever title he may have acquired by the deed from Armstrong, and to vest it in M’Nairy. 1 Hawks, 87. The sheriff’s levy dotes not describe the land so specially as it might have done; but as Brown was on the land at the time of sale, with a plat, dividing it into three lots, and designating the one to be sold, every benefit to be derived from the most special levy, was hereby attained. The owner knew precisely what was offering for sale, and the bidders saw delineated on the plat the land they were purchasing. "We think too, that the levy so describes the land as to distinguish it from all other tracts. The same specialty of description is not necessary here, where a deed from the sheriff constituting the purchaser’s title, follows the sale, as would be required were the title to rest upon the levy. We therefore affirm the decree of the chancellor.

Decree affirmed.  