
    Henry S. Taylor et al. vs. William Eckford.
    Where the lessee of a lot sold his interest, but the deed of sale was not recorded, though his vendee went into possession, it was held, that a subsequent sale of the lot under execution on a judgment against the vendor, rendered since the first sale and possession under it, would pass no title to the purchaser thereat; the actual interest of the judgment debtor in the property sold being all that the lien of the judgment extended to, in favor of a purchaser with notice.
    Where a lot was levied on by an execution, which was supposed to be a lien upon it, and was purchased by a person, not for himself, but for the benefit of the real owner, whoever he might be, and the purchaser afterwards conveyed the title thus acquired by him, to the wife of the person whom he supposed to be the real owner; it was held, that the wife could not set up the title thus obtained, against the right of one, claiming under a prior deed of 'trust, executed by her husband.
    C. being in possession of land, conveyed it in trust to secure E. in the payment of a sum of money, and in the year 1840 the trust was closed and the lot bought by E.; in October, 1841, the lot was sold under an execution against C. older than the deed of trust, and was bought by the brother of C. as agent for, and for the benefit of the wife of O.; the execution under which the sale was made, was not issued by the plaintiff in it, nor by his direction, nor was the levy made by his order; the lot at the sale was bid off for two dollars, and was proved by some of the witnesses to be worth six thousand dollars ; held, that the gross inadequacy of the price, the relation of the parties, and other efforts, proved to have been made by C. and his wife to defeat E.’s title, were sufficient evidence of fraud in the purchase to vitiate the sheriff’s sale.
    Whether great inadequacy of price is of itself proof of fraud, or not, yet, in connection with other suspicious circumstances, it is entitled to great weight in determining the character of the transaction.
    C. made a deed of trust by words of ‘ grant, bargain and sale ’ on a lot of ground for the benefit of E., and the latter, under a foreclosure of the deed, purchased the property, leaving it in the possession of C.; C.’s wife, by an agent, subsequently purchased the property under an execution against her husband, on a judgment older than the deed to E. Held, that she could not set up the title thus acquired, against E ; that as C. himself could not, while sustaining the relation of tenant to E., buy another title to defeat his own conveyance, so neither could his wife.
    C. being the owner of a leasehold interest in a lot of ground, conveyed it in trust for the benefit of E., who, by a foreclosure of the deed of trust, bought the lot, leaving C. in possession; M., owning lots adjoining under a like lease, apprehending difficulty as to the title, and supposing C. to be the owner of the lot, proposed to him to forfeit the lease by the non-payment of the ground rent, and procure a new lease free from difficulty; C. acceded to this, the lease was forfeited, and a new lease taken by M., who conveyed the lease for the lot held by C., at C.’s request, to C.’s wife ; held, that C.’s wife could not set up the title thus acquired against E., claiming under her husband’s deed of trust.
    C. having conveyed a lot to E. by a deed of trust, C.’s wife endeavored to acquire title to it adversely to E., in various ways during the lifetime of C.; and E. filed a bill against C., and his wife and others, to set aside the titles ' attempted to be acquired by C.’s wife; pending the suit, C. died ; and after his death; the lot was sold under an execution against C., which C. had paid in his lifetime, but which had not been entered satisfied, and was bought by P. B. C., tfie administrator and brother of C., (to whom it was told at the sale, that the execution was satisfied,) and by P. B. C. conveyed to C.’s wife for seventy dollars, though worth six thousand; held, that C.’s wife could not set up the title thus acquired against the title of E., derived under her husband’s deed of trust.
    A. J. C. bought a lot at sheriff’s sale under, execution against C., for two dollars, worth six thousand, under circumstances which rendered the sale fraudulent, as to one claiming the lot under title from C.; before the purchase of A. J. C. was adjudged fraudulent, the lot was sold under execution against A. J. C., and bought by T.; held, that T. by his purchase acquired only A. J. C.’s interest; and as A. J. C.’s purchase was fraudulent, and he acquired no title by his purchase, T. likewise acquired none by his.
    On appeal from the vice chancery court at Columbus, Horn Henry Dickinson, vice chancellor.
    William Eekford alleges in his bill that Ewing F. Calhoun, on the 26th of August, 1839, made a deed of trust to Ovid P. Brown, as trustee of the property described in the bill, to secure a debt therein mentioned; that the trustee sold the property on the 25th July, 1840, to complainant for $2075, who extended to Calhoun the privilege of finding a better purchaser ; and in consequence, did not take a deed until the 2d of March, 1841; and that Calhoun, by himself or agents, has been in possession of the premises ever since. That clouds and embarrassments have been thrown upon his title; on the 16th March, 1840, the sheriff sold the property, as the property of John J. Humphries, Jr.; when Abram S. Humphries purchased it for the benefit of. the owners, so that no one might be prejudiced by the sale, and whatever title the sale conveyed should enure to the true owners, and was willing to quitclaim to complainant or to E. F. Calhoun, according to the equity of the case; that J. J. Humphries at the time of this sale had no title to the property; that H. once owned it, but parted with his interest many years before; that the lots had been subdivided, and many valuable improvements put upon them since; that Calhoun being embarrassed, to defeat complainant’s title, procured his brother Alexander J. Calhoun to purchase ’ the property, under an execution in favor of Trotter & Symons; that he purchased the property for fl'OO, for the benefit of Ewing F. Calhoun, who procured the sale to be made for that purpose. That there has been further doubts thrown upon complainant’s title by the forfeiture or pretended forfeiture of the lease of the property, and a release to Charles McClaran by the trustees of the Franklin Academy, who were the lessors; that McClaran, to avoid some old claims against the property, part of which was owned by him, obtained from the parties a forfeiture and release of the whole premises; and Ewing F. Calhoun, after the release to McClaran, obtained him to make a deed to Mrs. Lydia Calhoun his wife, for the purpose of destroying complainant’s title; that he has been informed that A. S. Humphries had also conveyed the property to Mrs. Calhoun ; that this conveyance was procured by her husband, Ewing, to avoid his debts. He prays that these deeds may be set aside, and the title of complainant established. Lydia Calhoun, Ewing F. Calhoun, A. J. Calhoun, and Charles McClaran are made defendants.
    Henry S. Taylor afterwards filed his petition to be made party defendant, in which he shows his title to. the property in dispute. It was granted by the vice chancellor.
    
      Mrs. Calhoun, in her answer, which she makes a cross-bill, admits the deed of trust and sale to complainant, but denies that at that time or since her husband was in possession of the property, but states that at that time, and ever since, she was and had been in possession; claiming it as her separate property, under the deed from A. S. Humphries, executed 1st of March, 1843. She denies that her husband at the time of the deed of trust had any title, or that complainant by his purchase obtained any. She denies all knowledge of any agreements between A. S. Humphries and any other person, in relation to his purchase of the property, and insists that her title derived from him is perfect. She denies that E. F. Calhoun obtained an execution to issue against himself in favor of Trotter & Symons, or that he procured his brother to purchase, because he could not take a title in his own name, but is willing to admit that A. J. Calhoun had no interest, he having purchased as her agent and for her. She admits the forfeiture and the release' by McClaran and his deed to her, but knows nothing of the charges in relation to it as made, and calls for the proof. In the cross bill she charges that complainant has no interest in the purchase, but that he purchased for one Cook. She further charges, that the property was originally leased to John Mullen, and by John Mullen to John J. Humphries. That judgment was rendered against J. J. Humphries on the 19th of June, 1838, and said property sold under execution to A. S. Humphries on the 16th of March, 1840, and that she purchased from said A. S. Humphries on the 1st of March, 1843, for $176. She further charges, that on the 7th of August 1843, the Trustees of the Franklin Academy conveyed to Charles McClaran this property, who made a deed to defendant for a valuable consideration; that on the 19th of June, 1838, the Commercial Bank recovered judgment against E. F. Calhoun, and that the property in controversy was sold under it, and that P. B. Calhoun became the purchaser; and that she, being in possession of the property, purchased it of P. B. Calhoun, and prays that complainant answer the cross-bill, &c.
    The complainant replied to the cross bill of Lydia, and made, as required, H. S. Taylor a party defendant; in reply, complainant insisted that the possession claimed by Mrs. Calhoun was that of her husband; that the deed made by Humphries to her was to shield the property from the creditors of Ewing. That Humphries had no title; he had conveyed the lot twenty years before, and it had been in the open possession of others ever since. That A. J. Calhoun purchased for Ewing, but before any deed had been made from him a judgment was obtained against him in favor of Thatcher & Coleman, under which the lot was sold, and purchased by Henry S. Taylor. That Taylor obtained control of the judgment from one who had no authority to give it, and, for the purposes of speculation, had the property sold, and purchased it. That he never paid the purchase money; that the sheriff and Taylor were both deceived about his authority to control the execution, and his whole connection with the transaction was illegal and void, and prays that the same may be set aside; and that all the interest of A. J. Calhoun may be considered in him as trustee for the benefit of complainant.
    He admits that a lease was made to McClaran, but alleges that there was no legal forfeiture, and that McClaran conveyed to Mrs. Calhoun, being deceived by her husband into the belief that she was the true owner ; denies that he purchased for Cook, or that Cook has any interest in the purchase; and states that the money paid to A, S. Humphries was the money of Ewing F. Calhoun. As to the title derived through P. B. Calhoun under the judgment of the Commercial Bank, he charges that the judgment had in truth been satisfied, and kept open by Ewing F. Calhoun for his own benefit, who owned it and controlled it; that P. B. Calhoun was a mere agent in the matter, and had knowledge of these facts.
    Henry S. Taylor made his answer also a cross-bill; he denies that E. F. Calhoun, or Lydia Calhoun had been in possession of the premises ever since the making of the trust deed; but insists' that A. J. Calhoun went into the possession of the property immediately after his purchase at sheriff’s sale, and received the rents and profits of the same; he denies that A. J. Calhoun purchased for his brother, or that Ewing procured the execution to be issued or levied, but insists that it was done by the plaintiff in execution, and that Alexander J. Calhoun purchased bona fide for himself; denies, upon information and belief, all combination between Ewing and Alexander, or that Alexander purchased for the use and benefit of Ewing. Admits that before A. J. Calhoun made any conveyance, the judgment of Thatcher & Coleman was rendered against him, which bound his interest in the premises; denies that his object was for speculation, but he obtained control of the judgment to make the money on it, and protect his interest against Ewing, who had committed a fraud on him; denies all fraud, and in his cross-bill set forth his title, to wit:
    On the 4th day of March, 1839, Ewing F. Calhoun was in possession, and had a good title to the premises; on that day judgment was entered against him in favor of Trotter & Symons, under which judgment, on the 4th day of October, 1841, the premises were sold and purchased by A. J. Calhoun. That after-wards, judgment was obtained against said A. J. Calhoun in favor of Thatcher & Coleman, under which judgment the premises were sold on the 7th of October, 1844, and purchased by Taylor, by which purchase he insists he obtained a good title. He charges that Humphries had no such title as could be sold under execution; that there was no legal forfeiture of the premises; that the title to and from McClaran conveyed no interest, and that the judgment under which P. B. Calhoun purchased was satisfied, and that proclamation was made of that fact at the sale, in the hearingof the said P. B. C., by means of which all the deeds under which Mrs. Calhoun claims are without any legal foundation; and that as to complainant, Eckford, the deed of trust under which he claims is much junior to the judgment under which A. J. Calhoun purchased; and prays that the titles adverse to his may be set aside and cancelled, &c.
    Mrs. Calhoun and P. B. Calhoun answered the cross-bill of Taylor, and denied all the charges, and contend for the validity of Mrs. Calhoun’s title from all the different sources.
    A. S. Humphries answers, that the statements in complainant’s bill as to the sale and purchase by him are substantially correct; that he claimed nothing himself on account of his purchase, and was willing to quitclaim to whoever was entitled; that A. J. Calhoun instructed him to quitclaim to Mrs. Lydia Calhoun, which he did.
    H. S. Taylor answered the cross-bill of Mrs. Calhoun, and refers to his former answer to bill of complainant.
    Ewing F. Calhoun died during"the progress of the suit; and P. B. Calhoun, his administrator, in answer to the original bill, filed the answer of E. F. Calhoun, prepared and sworn to in the latter’s lifetime, in which he states that when the sale took place under the deed of trust, his wife was in adverse possession ; he admits his possession when he made the deed of trust; and also the understanding with Eckford when the sale took place, that he might redeem the lot, or make a re-sale of it to better advantage. He refers to the court the question of his title, which he thought good when he executed the deed of trust. He states that, under his agreement with Eckford to re-sell, he did sell the property for six thousand dollars; and called on Eckford to comply with his agreement, which he refused to do; and took the deed from the trustee.
    It is not deemed necessary, after this full statement of the pleadings, to detail the testimony at length. It is sufficient to state, that it was in proof that when Ewing F. Calhoun made the deed of trust to Eckford, he was in possession of the lot; claiming it under a deed executed in 1837 by James Cameron to him, and also, under a deed from William Dousing dated in 1839. John J. Humphries, Jr. testified, that in 1825 he had sold his lease in the lot to one Morgan,'-and placed his vendee in possession, who was received as a tenant in his stead.
    With reference to the execution in favor of the Commercial Bank of Columbus against. Ewing F. Calhoun, it was proved by Thomas Christian that in September, 1842, he contracted with Ewing F, Calhoun for its transfer for a special purpose; Calhoun told him S. F. Butterworth would make the transfer; he applied to Butterworth, who stated that he would if Ewing F. Calhoun would give him an order in writing for it; this was done. Butterworth made the assignment, and when the purpose was accomplished, he re-transferred it to Butterworth; the consideration was paid to Ewing F. Calhoun and not to Butter-worth. He further proved that he was present when P. B. Calhoun bought the lot under this execution, and heard Henry S. Taylor proclaim that the execution was paid under which the sale was about to take place. There was other testimony also to prove this execution paid.
    John M. Symons proved that he was the owner of the judgment in favor of Trotter & Symons against Ewing F. Calhoun, and others, rendered on forfeited bond on the 5th of March, 1839; and that he did not order the issuance of the execution under which the property in controversy sold, nor did he know who did ; nor did he direct the levy on that property. This was the execution under which A. J. Calhoun bid off the lot in controversy for two dollars.
    The testimony was voluminous, but it is not deemed requisite for the proper understanding of the case to state more of it.
    The vice chancellor decreed the various titles under which Mrs. Calhoun claimed, to be inoperative and void, as well as the title of Taylor, and directed the various conveyances under which they respectively claimed to be annulled and set aside; and dismissed the cross-bills of the defendants, directing them to pay respectively the costs.
    From this decree Henry S. -Taylor appealed.
    
      A. G. Smith, for appellant, Henry S. Taylor, contended,
    1. That Taylor’s title was good, as against Eckford, because the execution under which A. J. Calhoun purchased, was older than the deed of trust under which Eckford claimed.
    2. That it must prevail against the claims of Mrs. Calhoun, because, 1, the deed from McClaran, under which she claimed, ,was procured by fraudulent representations, and was, therefore, void; 2, the purchase under the execution against John J. Humphries, Jr., passed no title, because the title had passed years before out of him into his vendee, and was accompanied with the possession; 3, the execution under which P. B. Calhoun bought, was paid, and he had notice of that fact; he could therefore acquire no title by that purchase, and none could pass to Mrs. Calhoun.
    3. The title of Taylor was unassailable on the ground of fraud; the charge of fraud on his part was disproved by the evidence.
    4. There was no fraud in the purchase of the judgment by A. J. Calhoun. [On this point Mr. Smith reviewed the testimony adduced in the record to establish that A. J. Calhoun purchased for E. F. Calhoun; and contended that no such conclusion could be fairly drawn. As the court did not enter into a consideration of the testimony on that point, but considered the sale to A. J. Calhoun fraudulent, independent of it, it has not been inserted in the statement of the case.]
    5. Even if there was fraud in the pitrchase by A. J. Calhoun, it is not pretended that notice of that fraud has been brought home to Taylor; he will hold the property, therefore, regardless of the frauds of the others.
    
      Boykin and Crusoe, for Lydia E. Calhoun.
    1. Eckford does not show such title in him as entitles him to a decree. He alleges, that E. F. Calhoun had title; but this is denied in the answers, and no proof is offered of it. This is not sufficient. Story, Eq. PI. 248, 261 f 266.
    2. Taylor does not show himself entitled to a decree; because, 1, he claims through E. F. Calhoun, and it does not appear that he had title ; and 2, he has not paid the purchase money of his bid, and'so title did not vest in him. [On this point counsel reviewed the proof and cited authority; but they are omitted, as the court did not decide the point.]
    3. Mrs. Calhoun’s first source of title is under the execution against Humphries; here she claims independent of her husband ; the chain from the original proprietor to her is complete. To this two objections are made. 1. That Humphries had no interest that could be sold under execution. 2. The declarations of A. S. Humphries that he bought for the real owner. To the first it is replied, that the legal title was undoubtedly in John J. Humphries, which was subject to sale under execution, and it no where appears in the case that E. F. Calhoun, or those claiming under him, possessed or had claim to the equitable title, and if not, what right have they to set that up against the legal title accompanied with the possession? To the second objection we answer, that neither the declarations of E. F. Calhoun nor of A. S. Humphries are evidence against Mrs. Calhoun. They cited 4 Yeates, 2S4; 2 U. S. Dig. 44.
    4. Mrs. Calhoun claims in the second place under the deed from McClaran, that the forfeiture conferred a right to re-sell, (see Acts of Leg. 1827, p. 137;) and if there was any fraud on McClaran’s part in procuring the re-sale, there was none on Mrs. Calhoun’s in obtaining her deed from him; and she will therefore hold.
    5. Mrs. Calhoun claims also under the judgment in favor of the Commercial Bank of Columbus against E. F. Calhoun.
    6. The testimony upon which Eekford and Taylor rely is inadmissible to prove title to land, being parol. Jackson v. Miller, 6 Cow. 75Í; 7 John. R. 186 ; 10 John. R. 336, 338, 358; 16 John. R. 302; 5 Cow. 133; lb. 124.
    
      Evans and Topp, for Eekford.
   Mr. Justice Clayton

delivered the opinion of the court.

This bill was filed by Eekford to remove clouds and doubts from his title to a lot of ground in the town of Columbus. He claims by purchase at a sale under a deed of trust, executed by Ewing F. Calhoun on the 26th of August, 1839. The sale took place on the 25th of July, 1840.

. The titles which are opposed to his emanate, likewise, from E. F. Calhoun, or from other sources, which seem to have been explored after the purchase of Eekford, in order to defeat his title. A more complicated state of facts is rarely exhibited.

The bill charges that Ewing F. Calhoun had title and possession when the deed of trust was made; and that he, by himself or his agents, continued in possession thereafter, up to the time of filing the bill.

It states that the titles interposed to embarrass that of the complainant, are three. First, a deed -from the sheriff of Lowndes comity, dated 16th March, 1840, which recites that the lots were sold as the property of John J. Humphries, and purchased by Abram S. Humphries. It alleges, that said John J. Hum-phries had no title to the lot, either at the time of the judgment or of the sale, and that Abram S. Humphries bought for the owners and holders of the several lots embraced in the sale. Second, a deed to A. J. Calhoun, made by the sheriff under a sale on the 4th of October, 1841, by virtue of an execution against E. F. Calhoun. Third, a deed from the president and trustees of the Franklin Academy to Charles McClaran, on account of a sale of the lots for non-payment of rent, reserved upon a lease of the lots for a long term of years, and a conveyance by McClaran to Lydia E. Calhoun, the wife of E. F. Calhoun. This mode of forfeiture and sale of the lots was adopted to get rid of the old judgment against John J. Humphries, who once owned the lots, and McClaran’s quitclaim deed to Mrs. Calhoun was intended for the benefit of the true owner. Abram S. Humphries, who purchased at the execution' sale against John J. Humphries, likewise conveyed to Mrs. Calhoun. The bill prays that these titles be set aside.

To this, the original bill, Taylor was not a party; but he was afterwards upon his petition admitted as a party, and brought his rights before the court. It will be well to confine our attention at first to the original parties. There was first a demurrer, upon the overruling of which an answer was filed.

The answer of Mrs. Calhoun admits the deed of trust of E. F. Calhoun, and the sale, under it to Eckford, but denies that E. F. Calhoun had either possession of the lot or title to it, when the deed of trust was executed. It alleges, that she was in possession, claiming title in her own right by virtue of the deed of Humphries, bearing date the 1st day of March, 1843; denies that complainant obtained any title by his purchase, or has any at this day, and asserts that the title she derived from Humphries is valid. It also denies, that A. J. Calhoun purchased for the benefit of E. F. Calhoun, but asserts, that A. J. Calhoun has no title. It farther states, that the lots were forfeited to the Franklin Academy for non-payment of rent, and that a new lease was executed by the trustees to McGlaran, who made a quitclaim deed to her for her part of the lots, and for which she paid her proportion of the rent. This answer is made a cross-bill, sets out these several deeds, and says that another sale, under a judgment of the Commercial Bank of Columbus against E. F. Calhoun, was made, at 'which P. B. Calhoun, became the purchaser and conveyed to her. Neither the date of this sale by the sheriff, nor that of the deed is given. The deed of P. B. Calhoun to Mrs. Calhoun bears date the 25th of March, 1845, and was filed at the same time that he filed his answer as administrator of E. F. Calhoun, deceased.

The answer of E. F. Calhoun, filed in his lifetime, states that at the time of the sale of the premises to the complainant, under the deed of trust, the lot in question was in the adverse possession of his wife, L..E. Calhoun. He admits that after the purchase he was left in possession, with the understanding that he might redeem the lot, or sell it to a third person, if he could do so on better terms. He states that he believed he had a good title when he executed the deed of trust, but now doubts it, and as it is a question of law, refers its decision to the court.

The lot was conveyed in 1837 by James Cameron to E. F. Calhoun, and was also conveyed to him in 1839 by Wm. Dousing. It is also in proof that he was in possession previous to, and at the time, when the deed of trust was executed.

The answer of Mrs. Calhoun was made a cross-bill, and in his answer to this, Eckford alleges that John J. Humphries had sold and assigned his interest in the lot more than twenty years previously; that the assignment had not been recorded, and might be lost, but that the possession .of E. F. Calhoun was notice of his title. Humphries himself proves that as early as 1825 he sold and assigned his interest in the premises, and delivered possession to his vendee.

The bill states that, at the request of E. F. Calhoun, the complainant gave, him the privilege of redeeming the lot, or of selling it for a better price, and left him in possession. The answers of both Calhoun and wife admit this agreement, but allege that the complainant, when requested,' refused to comply with it. E. P. Calhoun states that he sold the lot for $6000, nearly four thousand more than Eckford gave, and that when he applied to the complainant to comply with the agreement, he refused to do so, and then for the first time took a deed from the trustee, bearing date 2d March, 1841. E. F. Calhoun took offence at this refusal, and when his plan of re-sale was defeated difficulties immediately began to spring up in regard to the title of Eckford.

This brings us to the consideration of the claims set up in opposition to his.

The sale of the lot as the property of J. J. Humphries, passed no title. He had sold and conveyed his interest many years before the judgment was rendered. The lien of the judgment could not extend beyond the actual interest of the debtor. Dunlap v. Burnett, 5 S. & M. 710. The possession of his vendees was notice of their right, in the absence of the registration of his conveyance. Dixon v. Lacoste, 1 S. & M. 70. The failure to record the lease or the assignment could have no effect upon the title of Eckford, in favor of a purchaser with notice.

This was leasehold property, and Humphries states that Morgan, his vendee, was substituted as tenant in his place. The purchaser under a judgment, rendered after this transfer and substitution, with notice of the title of the tenant in possession, could obtain no title.

Moreover the purchaser at the sheriff’s sale of this title, states, that he bought not for himself, but for the benefit of the true owner, and with no intention to set up title in himself. He offered to convey to E. F. Calhoun, believing him to be the owner, and conveyed to Mrs. Calhoun by the request of A. J. Calhoun. This title cannot now be successfully opposed to the prior vendee of E. F. Calhoun. Neither would it be just to compel Eckford to refund what was paid on account of this sale and purchase, because the judgment constituted no lien as against him.

The next cloud is the deed of the sheriff to A. J. Calhoun, founded upon an execution sale made in October, 1841, under a judgment against E. F. Calhoun, older 'in date than the deed of trust. At this sale, a lot worth, according to some of the, testimony, six thousand dollars, was sold for the trivial sum of two dollars. A consideration so inadequate “shocks the conscience,” and impresses the mind at once with the feeling of injustice. The purchase was made by A. J. Calhoun, as the agent of Mrs. Calhoun, according to her own assertion, and for her benefit. The execution was not issued by the plaintiff, nor by his direction, nor was the levy upon the lot made by his order. The gross inadequacy of the price, the relation of the parties, and the numerous and various efforts made to defeat the title of Eckford, furnish the most convincing evidence of fraudulent and improper practices. Whether great inadequacy of price is of itself proof of fraud, we need not now decide; in connection with other suspicious circumstances, it is of much weight in determining the character of the transaction. 2 Rob. Prac. 14; 1 Story, Eq. Jur. 250.

But in this case, E. F. Calhoun stood in the attitude of a tenant to Eckford, at the time of this purchase of A. J. Calhoun. Moreover he had conveyed the lot to the trustee by words which, under our statute, operate an implied warranty of title; and any title which he might subsequently obtain, would enure to the benefit of his vendee. Jackson v. Murray, 12 Johns. 201; Jackson v. Stevens, 13 Johns. 316; Peck’s R. 24.

A. J. Calhoun was nominally the purchaser, but Mrs. Calhoun alleges that he bought for her benefit. As her husband would not, under the circumstances, be permitted to buy another title to defeat the effect of his own conveyance, whilst sustaining the relation of tenant to the complainant, so neither would the wife. See Hardeman v. Cowan, 10 S. & M. 486. This sale and this conveyance should not, therefore, be permitted to stand in the way of the complainant.

We come next to the deed of McClaran. The lot in dispute was one of a block, which was divided into several lots. McClaran owned some of these, and supposed that E. F. Calhoun was the owner of the one in question. In order to get rid of some apprehended difficulty as to the title, he proposed to E. P. Calhoun, that they should fail to pay the ground rent on the stipulated day, suffer the lease thereby to become forfeited, and afterwards procure a new lease discharged of all former incum-brances and difficulties. This proposition was agreed to and carried out, and afterwards McClaran, at the request of E. F. Calhoun, conveyed to his wife. This deed is now opposed to the complainant. It is liable to the same observations made in regard to the deed of Humphries. It was a part of the scheme of E. F. Calhoun to defeat his own conveyance, and cannot be permitted to stand in a court of'equity.

The answer of Mrs. Calhoun, which is also made a cross-bill, sets up another claim, which was not obtained till after filing the original bill. That was a sheriff’s deed, founded on an execution sale under a judgment in favor of the Commercial Bank of Columbus against E. F. Calhoun. The property was sold under this execution in 1845, was purchased by P. B. Calhoun, and by him conveyed to Mrs. Calhoun for the consideration of seventy dollars.

It is in proof by two witnesses, that E. F. Calhoun had the control of this judgment during his life. At one time execution was issued and delivered to him. Afterwards he caused it to be assigned to Butterworth as security for money borrowed of him. After its repayment, he caused the judgment to be transferred to Christian, who used it to sell some property, and to secure the titles to himself, and then considered that he had no farther interest in the judgment. All this was accomplished by arrangement with E. F. Calhoun. P. B. Calhoun was the administrator of E. F. Calhoun, and was notified at the time of his purchase, by H. S. Taylor, that the execution was satisfied.

These facts warrant the conclusion, that the judgment had been discharged, and was kept open by E. F. Calhoun to serve his own purposes. A title acquired under it by his administrator, and then by his widow, with at least constructive notice, and during the pendency of this suit,, cannot prevail against the complainant. This disposes of the claims of Mrs. Calhoun. Banks v. Evans, 10 S. & M. 35.

The title of Taylor rests upon the validity of the purchase made by A. J. Calhoun under the execution of Symons and Trotter, at which the lot was sold for two dollars, as already stated. Taylor afterwards bought the lot at execution sale against A. J. Calhoun. Mrs. Calhoun also claims title under the same sale, and her interest has already been the subject of remark.

It will be borne in mind that Taylor was the purchaser of the interest of A. J. Calhoun, at execution sale; if Calhoun had no title, Taylor acquired none. The evidence of practice and design, combined with the total inadequacy of the consideration, make it impossible for his purchase to stand. The derivative purchaser in this instance stands on no better ground.

The difficulties seem all to have grown out of efforts of E. F. Calhoun and his family, to defeat the effects of a deed which he had previously made.

The decree is affirmed.  