
    B. F. Landrum vs. Bartlett W. Hatcher.
    
      Trespass to try Title — Lands contracted for after will made, to whom they go — Sheriff's deed void, no estoppel.
    
    Bands bid off at sheriff’s sale after tbe purchaser has made his will, go, not to the legatee or devisee, but to the heir-at-law, to whom the sheriff’s deed should be made. This is the rule, although the executor may be compelled to p.ay the purchase money out of the bequeathed personal estate.
    A defendant in execution whose land has been sold at sheriff’s sale, may show that the sheriff’s deed is void, because made not to the purchaser or his representative, but to one who had no right to it.
    BEFORE WARDLAW, J., AT EDGEFIELD, FALL TERM, 1857.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Trespass to try titles.
    
      “ Tbe plaintiff showed judgments and writs offi.fa. against tbe defendant, bad in 1834, a sale of tbe land in question by sheriff, 0. Towles, in June, 1835, to Christian Breithaupt for-one hundred and seventy-five dollars, and possession of tbe land by tbe defendant in 1834, and ever since.
    “Further tbe plaintiff showed, tbe will of .Christian Breithaupt, dated December 5th, 1831. By this, tbe residue of bis estate is directed to be sold, and the proceeds to be remitted to Germany, there to be distributed amongst certain alien kinsman:—
    “ Tbe death of Obristain Breithaupt in 1836, and probate of bis will granted to John Bauskett, tbe only executor, of several appointed, that became qualified: — •
    
      “ A paper, signed, by John Banskett, dated December 11, 1850, directed to S. Christie, sheriff, reciting the sale of this land to Christian Breithaupt, the payment of the purchase money to 0. Towles, sheriff, by Banskett, and Bauskett’s omission to take titles; and instructing Christie to make the titles to Trumond Breithaupt, or to his order, “he (as there said) being entitled to said land as attorney in fact of the residuary legatees of the said Christian Breithaupt deceased —
    “ Proof that Trumond Breithaupt was agent for the German legatees of Christian Breithaupt, and a sheriff’s deed, made December 18, 1850, by S. Christie, sheriff and successor of 0. Towles, to the plaintiff — according to Bauskett’s order, and by the direction and with the assistance of Tru-mond Breithaupt.
    
      “ After argument,*! ordered a non-suit. Christian Breith-aupt’s equitable interest in this land, acquired after the making of his will, did not I thought pass under the will, — ■ neither Trumond Breithaupt, nor any of the persons whom he represented was an heir of Christian Breithaupt: — John Bauskett as executor had no power over this land and the conveyance made by sheriff Christie to the plaintiff was like every deed made by a sheriff to one who is neither purchaser nor assignee of a purchaser, beyond the power, which afi. fa. confers on a sheriff.”
    The plaintiff appealed and now moved this Court to set aside the non-suit and for a new trial, on the grounds:
    1. Because his Honor erred in ruling that this was not such an interest in land as could pass under the will of Christian Breithaupt, deceased.
    2. Because his Honor erred in ruling that the defendant was entitled to a non-suit, when it was shown that the plain-' tiff beld under defendant’s own deed made by tbe sheriff as •bis agent.
    3. Because bis Honor should have ruled that defendant had no right to dispute the title of the sheriff which was the deed of defendant.
    Bauskett, for appellant,
    cited. Act 1803, 5 Stat. 457 ; McEl-murray vs. Ardis, 3 Strob. 212. Though after purchased lands do not pass under the will, yet where there is no actual purchase but only a contract to purchase, which the testator. leaves incomplete — still in fieri — it would seem nothing but' right, that the legatee out of whose funds the purchase money is paid, should have the land — especially where the executor upon paying the purchase money, or a balance due, directs the title to be made to him, and it is made accordingly. That is substantially the case here. At any rate is not the defendant in execution estopped ? Can he show that the deed was made to a wrong party — to one not entitled to it ? and that it is therefore void.
    
      Carroll, contra.
    After acquired lands do not go to the devisee; and it is well settled that lands contracted to be purchased are considered as purchased. The money is to be paid out of the personal estate by the executor, and the heir — not the legatee or devisee — is the one who alone can demand the titles. 5 Stat. 163; 1 Jarm. on Wills, 42 ; 2 Wms. Ex’ors, 1251; 2 Story Eq. § 1212 ; Chit, on Con. 308; 10 Bing. 533. It is the duty of the executor to pay the debt out of. the fund provided by law, or the will of the testator, for that purpose, and when he has discharged that duty his office is at an end. He cannot control the law and direct the deed to be made to the legatees or devisees or their agent. Nor has the sheriff any such right. He is the agent of the defendant in execution to make the deed to the purchaser or to one rightfully claiming under him; but he is not his agent to make it to any one to whom he may please to make it. If he makes it to a wrong person it is simply void, and the defendant is not bound.
   The opinion of the Court was delivered by

WhitNÉe, J.

This Court is of opinion the non-suit was properly ordered by the circuit Judge. The views suggested in the report are such as meet with approval., and in delivering the judgment of this Court, I shall only attempt, briefly to enforce and sustain them by authority. By our Act of 1791, lands acquired after making a will, do not pass thereby, unless there has been a subsequent republication.'7 Stat. 163. It is conceded, therefore, that if a deed had been executed by the sheriff to Christian Breithaupt, neither his executor nor devisee could have maintained this action. The Act of Assembly, 1791, embraced both lands and personal estate, though by the Act of Assembly, 1808, this restriction as to personalty was removed, and upon this branch of the case the inquiry is as to which class the interest of Breithaupt in these lands belonged. It is correctly denominated by the circuit Judge an equitable interest. Mr. Story in his Eq. Jur. Section 1212, says, this belongs to a class of cases embracing what is commonly called the equitable conversion of property. By this is meant an implied or equitable change of property from real to personal or from personal to real, so that each is considered transferable, transmissible and descendible, according to its new character. Thus, says the author in continuation, where a contract is made for the sale of land, the vendor is -in equity immediately deemed a trustee for the vendee of the real estate, and the vendee is deemed a trustee for the vendor of the purchase money. Under such circumstances, the vendee is treated as the owner of tbe land and it is devisable and descendible as bis real estate.

Tbe equitable interest therefore in question if it bad been acquired before tbe will was made would have passed by tbe devise, but being acquired after,'and there being no republication, descended to tbe heir. Tbe general rule as stated in Chit, on Con. 308, is that tbe beir or devisee, and not tbe personal representative, must sue on a contract relating to freehold property. In such a contract as this a specific performance must have been asked by tbe beir-at-law.

It is supposed that tbe payment of a portion of tbe purchase money by tbe executor may make a difference, but it is not perceived. If tbe purchaser of real estate dies without having paid tbe purchase money, bis beir-at-law or devisee of tbe land purchased, as tbe case may be, will be entitled to have tbe land paid for by the administrator or executor— 2 Will. onEx’ors. 1499 ; 10 Yes. 597. In this case, therefore, Christian Breithaupt, having died intestate as to tbe land, the heir-at-law to whom it descended, was entitled to have it discharged of tbe debt, and to have a title deed from tbe sheriff. But it is insisted that tbe sheriff has actually made a deed to the land in question, and the defendant cannot gainsay or dispute this title. But whose title may be not dispute, and why not? Tbe purchaser or any one claiming under him, and because sqch person is regarded as having tbe title of tbe defendant himself, and that be may not dispute however imperfect.

It has never been held that he may not resist a stranger. This plaintiff is neither tbe purchaser from, nor assignee, devisee or heir-at-law of Breithaupt. He has a sheriff’s deed; but by what authority ? It is said tbe sheriff was tbe agent of tbe defendant, but is this correct for any such purpose? • Tbe sheriff may be by.law and for certain purposes tbe agent of both plaintiff and defendant. That is an agency Avell defined, and as to this transaction the Act of tbe Legislature must be pursued. The sheriff is authorized to convey to the .purchaser, and, looking to the object of the law, our Courts have recognized conveyances to his assignee, devisee or heir.

The alleged authority from the executor cannot mend the matter, as this has .been to be shown a case of partial intestacy. It is not analogous to the case of McElmurray vs. Ardis, 3 Strob. 212. In that case there was a will before the interest accrued, and whilst the judge delivering the opinion held that generally the titles should be executed to the party having the legal estate, adds but if made toíthe devisee the land was subject to a trust confided to the executor for the payment of debts. The motion to set aside the non-suit and to grant a new trial is refused.

O’Neall, Wardlaw, Withers, G-lover and Munro, JJ., concurred.

Motion dismissed.  