
    GARNER’S APPEAL.
    A bill in equity to compel a sheriff to execute a deed to a different person than the one named in his return, will not lie.
    The purchaser of an equitable title is presumed to have had notice,and takes subject to all previous equities.
    One who buys property as attorney is not estopped from showing that he bought partly for himself.
    Where the Master’s finding is different from the facts stated in the bill, it should be amended in the court below.
    No damages were ¡demanded in the court below. Held ; the court will not reverse because none were given.
    Where one party holds the legal title and another the equitable one, the latter is entitled to a decree showing that the former is a trustee.
    Appeal from the Court of Common Pleas of Schuylkill County, No. 281, January Term, 1878.
    J. Prank Werner, Esq., Sheriff of Schuylkill County, levied on a certain foundry and machine shop belonging to Lewis P. Garner and William A. Christian, and sold the same ón Sept. 8th, 1875, to A. P. Spinney, who signed the conditions of sale as “A. P. Spinney, Attorney.” Spinney purchased the property for himself, James R. Cleaver and William Cleaver, in equal shares. Jos. W. and Michael Garner owned another machine shop and foundry which was destroyed by fire on October 8th, 1875. The same day the two Cleavers agreed to sell the property to Joseph W. and Michael Garner for $16,711. Spinney also agreed to sell the property to William Torrey in Philadelphia on the same day, Oct. 8th, 1875, for $16,000. The Cleavers expected Spinney to ratify their sale to the Garners, and Spinney expected the Cleavers to ratify his sale to Torrey. The Garners went into possession. Torrey supplied Spinney with the purchase money to pay the Sheriff. The Sheriff’s deed had not been acknowledged and Garners filed objections to the acknowledgment of the deed to Spinney. They (Garners) filed a bill in equity to No. 5 December Term, 1875, against Spinney, Torrey, the Cleavers and J. P. Werner, the Sheriff, setting forth the foregoing facts with the exception that they alleged Cleavers had purchased the whole of the property, and further the agreement between Torrey and Spinney was fraudulent and collusive. The prayer of the bill asked for an injunction against Spinney and Torrey to prevent them interfering with the property, and against Werner, the Sheriff, to prevent him executing a deed to Spinney, Torrey, or the Cleavers. They also asked an order on the Sheriff to make a deed to them and “such other and further relief as to your Honors may seem meet.”
    
      Wm. B. Wells, Esq., the Master in the case filed an opinion from which the following extract is taken :
    The main question that arises in this case is, could any one of the three parties, viz: James R. Cleaver, William Cleaver or Albion P. Spinney, sell this property without such approval as the law requires in the case of the sale of an interest in real estate ? That is, were any one or two of them authorized to make a sale of real estate so as to bind the interest of his co-owners ?
    If so, then it might become important to know which sale was made first. But on the other hand, if it were necessary for all of them to execute an agreement in writing before a sale was complete and binding upon all of them, then it would follow that the interest of such of them as signed the agreement of sale would pass.
    The Master finds, as a matter of law and fact, from the evidence before him, that James R. Cleaver, William Cleaver and A. P. Spinney each held an equal individual interest, and that no one of them was authorized to bind the other by parol, and that it was necessary for each to sign a deed or written contract of sale to make it binding upon each and all of them.
    And that by the agreement of the sale made at Ashland, in the afternoon of the 8th day of October, 1875, signed by James R. and William Cleaver of the first part, and Joseph W. and Michael Garner of the second part, passed only the interests of the two Cleavers, viz : the undivided two-thirds of the whole property attempted to be conveyed by said written agreement.
    And the Master also finds, under the evidence before him, that by the agreement of the sale of the same property, made at the Girard House, in the City of Philadelphia, on the 8th of October, 1875, by Albion P. Spinney of the one part, and William Torrey of the other part, passed only tne undivided one-third of said property to the said Torrey, being Mr. Spinney’s interest therein, subject, of course, in each sale to the payment of a proper or proportionate part of the purchase money named in the respective agreements, equal to the proportionate part of the property thus acquired by the representative purchasers.
    The Master would under all the circumstances and the evidence in this case, recommend the Court to decline to grant the first and second prayers in the complainants’ bill, for the following reasons :
    1st. That so far, at least, as William Torrey is concerned, he has an undivided one-third interest in the property, and should not be restrained from exercising his legal rights respecting the same.
    2nd. That the Court has no power to direct the Sheriff to make and deliver a deed to any one other than the purchaser, as a Sheriff is bound by his return and conditions of sale, upon the payment of the purchase money, (which has been done in this case) to make, acknowledge and deliver a deed to the purchaser for the premises, in order to relieve himself from liability.
    
      Officers of the law, in discharge of their official duties, will not be required by the Courts to step aside from their plain line of duty to recognize a stranger to the conditions of sale, and oblige the Sheriff to decide whether or not such a stranger is a rightful assignee of the purchaser. Hence the Sheriff must follow his returns, and make his deed to the purchaser.
    Now the Sheriff, by virtue of sundry executions levied upon the real estate described in complainants’ bill, and has made the following return of the sale thereof on Fi Fa, No. 374, September term, 1875, viz : “1875, September 8th, real estate within described (same as in complainants’ bill) sold on this Fi Fa, No. 80, Sept. Term, 1875, and Fi Fa, No. 389, Sept. Term, 1875, to A. P. Spinney, Atty. for the sum of’ $12,050.
    “And proceeds of sale after deducting costs on the writ $ 14 06
    “Costs on Fi Fa, No. 80, September Term, 1875...... 113 84
    “And costs on Fi Fa, No. 389, Sept. Term, 1875 ... 10 98
    ‘■‘To wit the aum of............................ 11911 12
    “I have ready, &e., $12050 00
    “So answers
    “J. Frank Werner, Sheriff.
    “Exemption and inquisition waived by the detendant in this writ.”
    It is laid down by Gibson, C. J. in Boas vs. Hpdegrave, 5-Barr, page 519, “the Sheriff may make any return he thinks proper, and as he acts on his own responsibility the Court cannot compel him to alter or amend it.”
    Sogers, J., in Mentz vs. Hamman, 5 Wharton, page 155, held that the Court cannot alter the effect oí a Sheriff’s return. They may, however, grant leave to amend upon the application of the Sheriff: but not otherwise.
    And again the Sheriff is bound by his return.
    Justice Coulter, in Miller vs. Commonwealth, 5 Barr, 296, says: “And in England it seems to be well settled that he (the Sheriff) cannot contradict his return for the purpose of relieving himself from the liability which the return imposes.” * * * “It may in some cases be hard, but considerations of public policy ought to overweigh and countervail all tenderness of that kind.”
    Justice Strong, in Evans vs. Matson, 1 P. F. Smith, page 372, says: “Undoubtedly a Sheriff is bound by his return, and áreturn or a levy is proof against him that he has taken possession of the goods upon which the levy was made.”
    For the foregoing reasons the Master cannot recommend the Court to restrain the Sheriff or interfere with his discretion in the premises.
    The Garners claim that Mr. Spinney purchased the real estate at the Sheriff’s sale as attorney for James R. and William Cleaver only, and that by the agreement with the Cleavers of 8th of October, 1875, that they are entitled to a conveyance for the whole of the real estate and personal property.
    Let us examine into the facts and the law in reference to this claim.
    In the first place, there was a parol agreement between Spinney, James R. Cleaver and William Cleaver, prior to the Sheriff’s sale, that Spinney should purchase the property at the sale, and each should have one-third interest of the property, and each pay one-third of the purchase money. No money or other consideration was paid by any one of these parties at that time on account.
    Spinney bid off the real estate at $12,050, and signed the Sheriff’s conditions of sale, “A. P. Spinney, Atty.,” without the naming for whom.
    
    The addition of “Atty.” to his name did not change the agreement as to their respective interests.
    There was no want of fidelity upon his part .towards the Cleavers for so doing, neither could the Cleavers’ claim, more than the two-thirds, by reason thereof.
    As far as the record goes, it does not appear up to this time that the Cleavers had any interest in the property.
    Soon after the sale A. P. Spinney, James R. and William Cleaver agreed to have the property insured, and it was insured in the name of William R. Cleaver & Co., for the joint benefit of Spinney and the two Cleavers for the sum of $14,000, James R. Cleaver agreeing to advance, and did advance and pay for this insurance, to wit: the sum of $525.
    Now, was this such a title in the two Cleavers that they could sell the whole property to Joseph W. and Michael Garner free- and clear of Mr. Spinney’s rights ?
    When the Garners purchased oí the Cleavers, by their agreement of the 8th Oct., 1875, what evidence had they that the Cleavers could convey to them a perfect title ?
    The Cleavers had no deed for the real estate from the former owners which they proposed to convey to the Garners, and therefore Garners cannot claim to be purchasers of a legal title, perfect upon its face, for a valuable consideration, in order to take it discharged of any latent equities of which they had no notice, as is ruled in Reed vs. Dickey, 2 Watts, 459 ; Scott vs. "Burton, 2 Ash,. 312, and in no other cases.
    But on the other hand, the Cleavers had no legal title and the only equitable title was in James R. Cleaver, who had paid $525-to have the property insured.
    The title of the Cleavers to this property, to say the least of it, was imperfect.
    The rule of caveat emptor applies with full force to equitable as-well as to defective legal titles.
    It is decided in Kramer vs. Arthur, 7 Barr 105, that a purchaser of an equitable title is a purchaser with notice, and takes subject to prior equities though they were actually unknown to him. Gibson, C. J., in delivering an opinion in that case (see page 170 and 171) says: “No rule is sounder or more imperative than that the purchaser of an inchoate or imperfect title, intimating, as it does, that something is kept back which must stand or fall by it, as it existed in the hands of the vendor.”
    In Sergeant vs. Ingersoll, Ibid, page 345, the same Judge approves of the case decided in 13 Ves. 114, where a mere notice to the purchaser that the title deeds were in possession of another, it was held that to be sufficient notice of an equitable claim by the latter on the estate. The law seems to be clear and well settled upon this point.
    
      Therefore the Garners, the complainants, cannot, under the circumstances of this case, claim any more as against A. P. Spinney •or his- assignee, William Torrey, than the Cleavers could.
    This leads us to consider the relation and relative rights of Spinney as to the Cleavers. They all answer and testify that each were equally interested in the purchase at the Sheriff’s sale, and that each was equally bound for one-third of the purchase money. One of them states that they were interested as equal partners, and the other as tenants in common.
    It will make no difference as to the real estate, whether they were interested as partners or tenants in common.
    It is laid down in Story on Partnerships, Sec. 94, that as a general principle, one partner has full control of the partnership effects where they consist of personalty.
    But in respect to real estate a different rule prevails, founded upon the nature of the property and the provisions of the common law applicable thereto. Each partner is required, both at law and in equity, to join in every conveyance of real estate, in order to pass the entirety thereof to the grantee, and if one partner only executes it whether it be in his own name or that of the firm, the deed will not ordinarily convey any more than his own share or interest therein.
    In Pennsylvania we have two statutes upon the subject of ■conveying real estate. The first was passed 21 March, 1772, 1 Purd. Dig. 723, which requires the conveyance of all leases, estates, interest of freehold or term of years, or any uncertain inter■est of, in, or out of, any messuages, manors, lands, tenement or hereditaments, to be in writing, &c.
    Then comes the Act of the 22nd April, 1856, Sec. 4, P. L., page 533 ; see also Purd. Dig., page 724, pi. 3, which enacts that “all declarations or creations of trust or confidences of any lands, tenements, or hereditaments, and all grants or assignments thereof shall be manifested by writing, signed by the party holding the title thereof,” &c.
    As to the Act of 21 March, 1772, it has been decided that it is Immaterial whether the interest be legal or equitable, as in Pennsylvania an equitable interest is an interest which comes within the words and spirit of the statute. Gaucher vs. Murian, 9 Watts page 107 ; Rogers, .1. Gratz vs. Gratz, 4 Rawle, 434-5, per Kennedy, J.
    As to the Act of the 22nd of April, 1856, it was decided in Barnet vs. Dougherty, 6 Casey, 371, that a trust in lands cannot be established by parol evidence without writing, unless by the operation of the law as provided in the statute. See also Mason vs. Kaine, 17 P. F. Smith, 126, and there are many more cases to the same effect.
    These statutes and authorities are cited to show that Mr. Spinney’s interest, whether it may be regarded as certain or uncertain in the foundry property could not pass to the Garners by their agreement óf purchase from the Cleavers. Neither did the interest of the Cleavers pass to Torrey by his agreement of purchase from Spinney. All that could pass by these sales was the interest of the respective vendors as hereinbefore indicated.
    The Garners had full notice that the Cleavers repudiated their agreement, because Spinney would or could not join them in their sale to the Garners before Garners had paid or offered to pay part of the purchase money.
    The Master is of the opinion that neither Torrey nor the Garners can gain any advantage by paying or offering to pay the purchase m- ney after full notice of the difficulties that existed. Neither have the Garners gained any rights as against Spinney or his assignee, Torrey, by taking possession without their consent.
    This case must be disposed of under the rights of the several parties as they existed in'the afternoon of the 8th of Oct., 1875, immediately after the execution of the two written agreements.
    It may be proper to remark here, that the Garners claim that ■inasmuch as Spinney stated to one James Pajme that he, Spinney, was not going into the machine business, that he wanted to sell the shop for Mr. Cleaver, and that he had no interest in the shop only as attorney for a bank, (see Depositions No. 2, pages 3 and 4), that therefore Mr. Spinney should not be permitted to repudiate the contract made by the Cleavers for the sale of their and his interest in the real estate.
    
      It was not shown that this was communicated to the Garners iprior to their purchase from the Cleavers. The Master in absence of such proof cannot find that it was.
    The Garners therefore could not have been misled by these declarations of Spinney to Payne.
    And again, Mr. Spinney contradicts Mr. Payne, and gives quite different version of his interview with Payne on the occasion referred to.
    The Master has already found that under the statutes of fraud, Mr. Spinney’s interest, which has been clearly proven to be one-third, could only be conveyed by writing signed by him,, which is the only contract of sale which can be enforced in Equity, for the conveyance of “any certain or uncertain interest, trust or conji•deuces” in real estate.
    On February 4, 1878, the Court allowed the Sheriff’s deed to be delivered to Spinney and ordered him to execute a deed to the 'Garners for two-thirds of the property on payment to him of two-thirds of the amount they had agreed to pay with interest, on their agreeing to accept the deed for two-thirds of the property by acceptance filed of record within ten days. If not accepted ; bill to be dismissed. Decree not to prejudice the rights ■of either parties at law upon the contract of Oct. 8, 1875. The acceptance was not filed and on February 18th, 1875, the Court dismissed the bill. Garners’ appealed and assigned numerous •errors among which were the not requiring the Sheriff to make the deed to them ; the order requiring them to pay two-thirds of the purchase money ; the order dismissing the complainants bill, &c.
    
      Messrs. Hughes & Farquhar, for appellants argued that,
    by the words grant, bargain and sell “in the agreement the Cleavers covenanted that they had the full title. Act May 28, 1715, Sec. 6, 1 Smith Laws 95; P. Dig., 582 pl. 98. If Cleavers did not own the whole property they were guilty of fraud, and were not entitled to two-thirds of the purchase money. Courts will not assist in carrying out an executory contract and its covenants in favor of a party to a fraud. Miller’s Appeal, 9 Casey 492; Fisher vs. Saylor, 28 P. F. Smith, 84. One guilty of fraud cannot derive a benefit from it; Evans vs. Watson, 1 P. F. Smith 372. When Spinney added the word “Atty,” to his name he held out that he did not buy for himself but for someone else. Bank vs. Jones, 6 Wright 536. Garners having contracted with Cleavers, the principals, on the faith of the record, Spinney is estopped as against them; Water’s Appeal, 11 Casey 523; Leedom vs. Lombart, 30 P. F. S., 381; Fessler’s Appeal, 25 P. F. Smith 483. Torrey will be presumed to have examined the title under which he claims; Surmon vs. Barlow, 2 Eden 167; Wormley vs. Barlow, 8 Wheaton 421, Rutter vs. Barr, 4 Ohio 446; Kerr vs. Kitchen, 5 Harris 433. And he was grossly negligent to buy from Spinney who had bought as “attorney”; Wilson vs. Wall, 6 Wall 83; Woodworth vs. Page, 5 Ohio 70; Greenslade vs. Dare, 20 Beavan 84; Doyle vs. Tease, 4 Scammon 402.
    Under the prayer for general relief the Court should have as* certained how much damage Garners sustained by the breach of Cleavers covenants, and should have deducted that from the amount to be paid. Under a prayer for general relief the plaintiff is entitled to such relief as the facts of the case warrant; Slemmer’s Appeal, 8 P. F. Smith, 155. A Court of Equity which has acquired jurisdiction will proceed and do justice though the bill be misconceived; Danzeisen’s Appeal, 23 P. F. Smith, 65; Wilhelm’s Appeal, 29 P. F. Smith 120. When a Court acquires jurisdiction, it will decree compensation for past injury; Allison’s Appeal 27 P. F. Smith 221; Irwin vs. Myers, 10 Wright 96. And will give damages when the special relief prayed for cannot be granted; Masson’s Appeal, 20 P. F. Smith 26. The Court should not have dismissed the bill without there being evidence of a tender of a deed. The hearing appears to have been on the merits and if affirmed would bar any further proceedings; Story’s Equity Pleading, Section 793.
    
      Wm. A. Marr, John W. & Jas. Ryon, Esqs., contra.
    
    The Court cannot compel the Sheriff to make a deed to person not returned as purchaser; Vastine vs. Furey, 2 S. & R. 426; Foster vs. Gray, 10 Harris 9. The Court cannot compel the Sheriff to alter his return; Miller vs. Commonwealth, 5 Barr 296; Mentz vs. Hamman, 5 Wharton 155. But may allow it to be amended on application of the Sheriff; Boas vs. Updegrove, 5 Barr 519. On October 8, 1875, the Sheriff’s deed had not been acknowledged and the title was only equitable, not a full legal title; Bellas vs. McCarty, 10 Watts 25; Thomas vs. Connell, 5 Barr 13; Scheeser vs. Stanley, 2 Rawle 276. A purchaser of an equitable title is a purchaser with notice and takes subject to prior equities though they were actually unknown to him; Kramer vs. Arthur, 7 Barr 105; Chew vs. Barnett, 11 S. & R. 389; Reed vs. Dickey, 2 Watts 459. Appellants allege that a fraud was perpetrated on them and yet come into court to enforce the specific performance of the contract; while they seek to be relieved of the payment of purchase money on the ground of fraud. A purchaser who seeks to rescind a contraer for fraud must tender a reconveyance before he can recover back the price paid; Pearsoll vs. Chapin, 8 Wright 9, and authorities there cited. An analogous decree is found in Rutger vs. Hunter, 6 Johns, C. R. 215. A court of equity has full power to exhaust all remedies for. reaching a final and equitable result; Sherwood vs. Hooker, 1 Barb. Chan. R. 650; Clark vs. Hall, 7 Paige 382. When a court of equity once takes hold of a litigation it will decide all important matters growing out of the same controversy; McGowin vs. Remington, 2 Jones 63; Souder’s Appeal, 7 P. F. Smith 498, 502; Sower vs. Weaver, 28 P. F. S. 445; Goepp’s Appeal, 3 Harris 428; Daniel’s Chancery p. 1196, 1284, 1205, 1207. Garners offered no evidence of any damage sustained by the failure of Cleavers to convey the full title and the breach of the covenant, nor did they allege that they had sustained any in the bill, but averred they were ready to pay the full purchase money on receiving the deed. Gratz vs. Ewalt, 2 Binney 95, defines the extent of the warranty implied by the use of the word “grant.”
   The Supreme Court set aside the decree of the lower Court on May 5, 1879, in the following opinion by

Trunkey, J.

Spinney purchased the property at Sheriff’s sale for himself, James R. Cleaver and William Cleaver, each to have one-third. The Cleavers agreed in writing, October 8, 1875, to sell the whole to the plaintiffs, and Spinney made a like sale to Torrey; neither party having knowledge of the sale made by the other, and neither having authority to sell the other’s interest; only a «mall portion of purchase money was paid on either contract before all parties had knowledge of the respective sales and claims ■of and to the property. The plaintiffs obtained- possession of the whole before the Sheriff had received the ■ bid or executed his ■deed, and on October 12th, tendered the amount due on their contract to Cleavers and demanded ■ title. On October 18th, they tendered to the Sheriff the sum bid, $12,050, which was refused, it had been previously paid by Spinney with money he had received from Torrey. Fraud in fact was not committed by any of the parties. The facts found by the Master, as well as those admitted in the pleadings, were not in dispute when the Court below made the decree, nor are they here; for the exceptions were not to findings of fact, nor omissions to find ; but merely to his recommendations for a decree.

The plaintiffs prayed specific performance of their contract with Cleavers. From the Master they went before the Court with facts which forbade a decree affecting Torrey’s title to one-third, and which showed Cleavers inability to make title for more than two-thirds. The Court could not grant the relief specifically asked in the first two paragraphs of the prayer. Having possession of the property, and nearly all the purchase money in their hands, possibly not bound to retain possession and accept title for two-thirds, with right to accept so much as Cleavers could convey and defalk damages, if any; no offer was made to amend their bill, nor anything put on record to show what they claimed upon a state of facts, in some respects materially different from those stated in their bill. There being neither evidence nor finding of actual damages, the Court among other things decreed a conveyance of two-thirds of the property on payment of two-thirds of the balance of purchase money; conditioned that the plaintiffs should not file their acceptance and assent within ten days, the bill should be dismissed without prejudice. No motion or suggestion appears to have been made for correction in form or for modification of the decree. We see nothing in the circumstances calling for sending the cause back for further proceedings as a matter of grace. We doubt not the Court would have made all proper orders for amendments, for ascertainment of damages, and for modification of the decree for the asking.

The offer of defendants made and filed in this Court on the day of argument, cannot affect the result. In the almost universal depression of values may exist a reason why, to-day they would gladly convey the whole and receive the money. Although they stoutly resisted when they filed their answers showing cause for refusal of plaintiffs demand. While agreeing with nearly all the conclusions of the Master and Court below, we are not of opinion that the bill should have been dismissed.

The legal title vested by the Sheriff’s deed is .in Spinney. He bought and holds two-thirds for Cleavers, and -is their trustee, bound to convey to them on payment of the proportionate part of purchase money. This trust is claimed and admitted by the parties ; the plaintiffs, however, claimed it was for the whole. Spinney has executed no deed or declaration of trust to Cleavers, and the plaintiffs under their contract are interested in having record evidence of the trust. To dismiss the bill is to leave their rights in peril. This action does not appear to have been wantonly commenced, Cleavers contracted to sell the whole, when they knew they had title to only part; concede that they expected Spinney to join them in making title, yet their negligence was the cause of plaintiffs complaint. They and Spinney created an appearance of injury sufficient to justify the bill, and, if satisfied, that the plaintiffs were moved by the same spirit after the Master’s report, as when they began the suit, their costs would be allowed.

Decree reversed. And is now considered and decreed,

1. That defendant, A. P. Spinney, purchased the property described in the bill at Sheriff’s sale, in trust for himself, James It. Cleaver and William Cleaver to hold as tenants in common and that the legal title vested in him by the Sheriff’s deed is in trust for the use of James. It. Cleaver and William Cleaver, their heirs and assigns, for the undivided two-thirds of said property, they to pay two-thirds of the sum bid at Sheriff’s sale.

2. That the complainants bill, so far as relates to the defendants, J. Prank Werner and Wiliam Torrey, be dismissed and that, they recover their costs.

3. That action and decree save as to the matter of the first paragraph of this decree, be without prejudice to any party or person in any other or future action or proceeding, at law or in equity.

4. That the costs, including costs of appeal, except as ordered in second paragraph, be paid one-half by the plaintiffs and the other half by defendants, James B,. and William Cleaver.  