
    
      John McKenzie v. Thomas Roper et al.
    
    Notwithstanding an agreement between the purchaser and seller, that the dees should take effect from a date anterior to its delivery, with the understanding: that the rent which accrued after that dale should go to the purchaser, the title-was not in the purchaser until the delivery" of the deed -r and a distress made by him before that time, would have been a trespass. The seller, even if he was, between the date and delivery of tire deed, the trustee of the purchaser, was nevertheless the legal owner, and had the right of distress as an incident of his estate.
    The date is only a formal part of a deed; the deed is made when, it is delivered..
    It is no contradiction of a deed to show whera it became a deed: and it is no violation of any agreement attending the execution of it, to show against one who-was in no wise a party to that execution, the truth which prevents erroneous-inferences being drawn from the form in which the agreement was carried into effect.
    There must be mutuality in every good estoppel.
    
      Before Mr. Justice Fb.ost, at Charleston, October Term, 1847',
    This was an action of replevin. The defendants avowed for rent in arrear. To the avowry the pleas were, non tenuii and non demisit.
    
    The case was stated to be, that one Mrs. Geiser was tenant for life of the demised premises, with remainder, m fee. to Elizabeth Roper. Mrs. Geiser had made a lease of the premises to the plaintiff for the term of six years, ending the first of June, 1845, at the annual rent of $120, payable monthly. She died April 24th, 1846. After her death, the plaintiff, by express agreement, became the tenant of the avowants, on the terms of the lease. On the 6th of April, under a decree of the Court of Equity, the demised premises were sold, by the Master, and purchased by the South Carolina Railroad Company. The deed of conveyance was not executed until July; and the purchase money was not paid, nor possession delivered to the Railroad Company, until that time. But the deed of conveyance was dated the 6th of April, and was delivered to take effect from that date. The avowry claimed rent from the 24th April, 1846, to the 6th April, 1847, amounting to $114 13, for principal, and $4 for interest. The distress was levied the 3d of May, 1847.
    The only question made in the argument was, whether,, under the plea of non tenuit, the plaintiff was entitled to recover ; and the argument was directed to the point whether, on the 3d May, 1847, the day the distress was levied, the legal estate remained in the avowant. The pleas were not read. It was understood that none were filed. The attor-siey for the plaintiff was asked ii^ under the plea of non tenuit, the title of the avowant, at the time the distress was made, was put in issue; and he said it was. This statement was not contradicted, and the argument progressed. The instruction to the jury to find for the plaintiff was made exclusively 'in reference to this issue; and no other was understood to have been made.
    The third ground of appeal is .taken under .a misapprehension. It was not held that the avowants could not give evidence that the deed was executed and delivered at a time subsequent to its date — for the statement, agreed on, showed that to be the fact; and ‘no question of the admissibility of the evidence was made. But it was ruled that the avowants could not aver against the deed, which, it was admitted, was executed and .delivered to take effect .from its .date; so that the rent which accrued, after thal time, was payable to the Railroad Company. The avowants accordingly apportioned the rent for the ¡last month, which was not due until .the 1st ■of May, and included the apportioned rent in the warrant of distress. Under these circumstances, it was held .that, by operation of law, the deed of conveyance took effect from 4he 6th April, 1847, though delivered afterwards, and divested the estate of the avowant from that time; so that the distress, levied on the third of May, was illegal; and the jury were instructed to find for the plaintiff.
    The avowants appealed, and moved for a new trial, on the grounds. — •
    1. That plaintiff’s defence to the avowry was inadmissible, ¿under the plea of non temuAt.
    
    
      2. That his Honor erred in charging the jury that the right of avowants to distrain for rent ceased on the day of sale, and that the legal estate passed to the purchaser on that day, although the purchase money was not paid, titles not signed, nor possession delivered to the purchaser until Laly after.
    3. That his Honor erred in ruling and charging that avow-ants could not give evidence to contradict their own deed, and show that the deed of the Master in Equity was not .•signed or delivered after its date, especially too when the case was submitted on a case made, and no objection was made to the admissibility of the evidence.
    4. That the verdict of the jury and the charge of the Judge were, in other respects, contrary to law and evidence.
    Yeadon, for the motion.
    The right to distrain must follow the legal estate. Title to real estate cannot pass without a deed, &c. In this case the title had not been made. The Railroad Company were inchoate purchasers, merely on a bid at auction. They had not even tendered the purchase money. If they had distrained, they would have been trespassers, The vender was the trustee for the purchaser, and the purchaser trustee of the money for the vender. — Sugden on Venders, 130 and 199. If one sell property subject to a lease, he is bound to pay over the intermediate rents, &c.- — 3 Sugden on Venders, 116 (Hammond’s edition). But we levied only for the rent up to the day of sale. The legal estate is in the seller until the titles are perfected — he is to go on and collect the intermediate rent, and is liable for any lost, which he might have received, if the purchaser is to pay interest on the purchase money. The doctrine of “relation” cannot apply to connect a right with a wrong, only to give redress for wrongs, — 18 Viner’s Abr. 285, ’6 and ’7. This was not the deed of Roper and wife. The property was set up for sale by the Commissioner, and bid off at auction r we are not, therefore, averring against our own deed.
    Richardson, contra.
    
    The question is, can the averment contradict the agreement that the deed should take effect from a date anterior to its execution? Would not allowing the seller, in this casej to distrain, be taking away from the Railroad Company the means of getting their rent ? Should the purchaser both pay interest and lose his rent? The deed concludes the avowants, bearing date prior to the distress— and are they, contrary to this, to aver against it, and that successfully ?
   Wardlaw, J.

delivered the opinion of the Court.

By agreement between the purchaser at the Master’s sale on one side, and the Master with those whom he represented on the other, the deed made in July was dated in April, with an understanding that the rent, which accrued after the date, should go to the purchaser. Bat notwithstanding this agreement, the title was not in the purchaser until the delivery of the deed. A distress made by him before that time, would have been a trespass; and the seller, even if he was a trustee for the purchaser, was nevertheless the legal owner, and had the right of distress as an incident of his estate. This manifest truth it is supposed the avowants are, by the deed of the Master, (considered to be their deed,) estopped from showing. The estoppel is urged by a stranger to the deed: and it is plain that no subsequent agreement between the parties to the deed could against a stranger give to its execution effect by relation, so as to authorize before the execution acts for w hich the deed was the legal authority; as, for instance, to authorize a distress by the purchaser before the deed was made,

There is, then, no mutuality in the estoppel contended for, as there should be in every good estoppel.

But apart from this, the date is only a formal part of a deed: the deed is made when it is delivered.—See Barmon v. Jay, 2 McC. 371. It is no contradiction of the deed to show when it became a deed: and it is no violation of any agreement attending the execution of it, to show against one who was in no wise a party to that execution, the truth which prevents erroneous inferences being drawn from the form in which the agreement was carried into effect.

The motion is granted.

Richardson, J. O’Neall, J. and Evans, J. concurred.

Withers, J. absent.

Motion granted.  