
    Wylie Huffaker v. Cornelius Bowman.
    1. Redemption. Lien of judgment. Seisin. Where land was sold under a deed of trust, and a judgment creditor, wishing to redeem, agrees with the debtor for a valuable consideration, in order to extinguish his right of redemption, that the title shall be first conveyed by the purchaser to the debtor, and by the latter to the creditor by whom the whole amount of redemption-money is paid — -which is accordingly done as one continuous transaction — -the temporary title thus vested in the debtor is not such a seisin as will create a lien in favor of the judgment of a third party against such debtor. Nor can such transaction, in the absence of actual fraud, afford any just ground of complaint on the part of other creditors.
    2. Same. Assignment by debtor of equity of redemption. The right of a judgment debtor to assign his equity of redemption is a settled question in this State; and if this right be once fairly extinguished in the judgment debtor, it follows, of course, that it can no longer exist in favor of creditors.
    3. Cases oited. Hepburn vs. Kerr and Davidson, 9 Humph., 726-730, approved.
    FROM CLAIBORNE.
    This hill was filed on the 3d of August, 1852, in the Chancery Court at Tazewell. At the December Term, 1855, Chancellor Lücicey gave a decree in favor of the complainant, from which the respondent appealed.
    J. R. Cocke, for the complainant,
    cited Pillow vs. Langtree, 5 Humph., 889; Kennedy vs. Howard, 6 Humph., 64; Hepburn vs. Kerr et al., 10 Humph., 720; Thomas vs. Walker, 6 Humph., 93; 2 Story’s Eq. Jur., § 882.
    Joseph B. Hbisicell, for the defendant:
    The bill states that the defendant is about procuring an execution sale, for the debt of James E. Bowman, of certain land to which complainant claims title on the following state of facts:
    William Kincaid had bought the land at trustees’ sale. The redemption was about to expire. Complainant made an arrangement with Kincaid and J. E. Bowman by which he was to pay the debt, and a deed was made by Kincaid to J. E. Bowman, and by him to the complainant. Bill states that it was done as a redemption of the land, complainant being a judgment creditor.
    To this bill a demurrer was filed below, which was sustained, and an appeal taken to this Court. There was a reversal here, the Court looking to the substance of the case as stated, and to the express allegation that it was so intended, which was admitted by the demurrer.
    On the case being remanded, the defendant answers, and denies that complainant is a creditor or entitled to redeem; denies that complainant acted as a redeeming creditor, or that he negotiated the arrangement with Kincaid; alleges that he negotiated with Bowman as a purchaser from him; that, at the time, respondent had made an arrangement with Kincaid to pay him his debt, and redeem upon his decree; and that this fact was known to complainant, and that this was the reason why the complainant adopted the course pursued, of having a deed instead of a redemption — to avoid the right of redemption in respondent, consequent upon a redemption by complainant, which he alleges he would have made.
    William Kincaid, James M. Kincaid, and Evans, prove that the transaction was not- intended as a redemption by Huffaker in his character of a judgment creditor; but, on the contrary, that it was a redemption by Bowman; and there is no proof to the contrary. The judgment for ten dollars, upon which Huffaker now pretends that he redeemed, is a partnership judgment of Huffaker & White. The law requires that judgments shall be receipted on redemption. That is not done with this one, and it is conclusive against a redemption. But Kincaid proves that no such judgment was mentioned at the time of the transaction. Ho redemption on that could have been made but in the firm name. The bill does not allege a firm judgment, but the fact that complainant is a judgment creditor, and no such judgment is shown.
    In the argument, the first question is, was this a redemption by Huffaker ? Upon the proof already cited, it was not. But supposing it to have been so, what is the consequence ? It is done in such form that, by reference to the deeds, the ostensible public act of the parties, from which creditors are to judge, the inevitable conclusion is, without reference to the private intention of the parties, that the title reverts in Bowman, and becomes subject to the creditor’s execution, which instantly attaches. He therefore levies. But he is met now with the objection that this transaction, though in form a sale, was, as we intended it, a mere redemption by Huffaker, and so he has taken the w'rong course.
    If the complainants are to be enjoined upon this construction, it would only be done by the Court on the condition that the party so misled shall now be put in the attitude that he would have been in if the act had been unequivocal — that is, that he be allowed to redeem. See 1 Story Eq., 642. He that asks equity must do equity. If the creditor has been misled, the parties misleading him, and preventing him from availing himself of his right to redeem, must have their relief only on condition that they release their unconscionable advantage. The fact is, they attempt to evade the consequence both of a redemption and of a sale. If the land, was redeemed by Bowman, it was subject to be sold at execution sale. If it was redeemed by Huffaker from Kincaid as an execution creditor, it was then subject to redemption by other creditors. If it was purchased from Kincaid as he held, subject to the right of redemption, he could only pass it subject to the same encumbrance. They therefore make it, as they allege, in form a sale from Bowman on a redemption by him, but in fact a redemption by Huffaker. They assert now that a mere momentary interest vested in J. E. Bowman, on which the execution cannot attach. This is not like the case of Thomas vs. Langtry and Wallcer, 6 II., 98. It differs in the fact that there the right had passed from Langtry to Thomas by a regular conveyance before the purchase by Thomas under the trust sale, and before judgment against Lang-try, and the subsequent purchase by Langtry at the trust sale operated, by the act of the law alone, to transfer the title by warranty and estoppel. Judge Green says in his first proposition, p. 94, “If Thomas had acquired no right to these lands by the previous transactions, the deed of the 14th of December, 1842, executed after judgment, could have conferred none upon him.”
    What would be the effect of vesting the title in Bowman by the deed before registration ? It would he subject to execution until registered, for the lien of an execution, by decision of this Court, attaches upon land held by an unregistered deed. The land then would remain subject to this lien until the deed from Bowman to Huffaker was registered, for the deed as against creditors is void until that time; and surely here is a point of time which will enable the Court to find priority. The title, which is not shown to have passed by registered deed, still remains as to creditors. See Ohapperon vs. JYidelete, 3 H., 661. See also 3 Yer., 171. There is no allegation that the deed has been registered, and in fact it was not registered when this hill was filed.
    As to instantaneous seisin, it seems to me that the dissenting opinion of Thompson, Chief Justice, in the case of Slow vs. Tefft, 15 Johns., 464, is the better opinion in that case; and I take the rule stated by him, that the instantaneous seisin spoken of by Coke only applies where the party is a mere instrument of passing the estate. In Langtry and Thomas’s case, this was the effect of the deed to Thomas. It was made to him, and the vesting in him operated, by the act of law and previous conveyances, to place the title in his prior vendee.
    In this case there is a beneficial interest in Bowman. He gets one hundred and fifty dollars, or about that, over the amount paid Kincaid — in consideration of what ? Of his interest in the land. See opinion of Thompson, above cited.
    But the case of Daley vs. Perry and Shelton seems clear upon this point. There the release of the levy and the execution of the deed of trust were one act, and might, in fact, be at the same instant; but the Court say that eo instanti the release was made, the lien attached.
    This is a fraudulent transaction. J. E. Bowman was insolvent. The land is shown to have been given in for taxes at $2200. It is sold for $1550.
   McKiNNEY, J.,

delivered the opinion of the Court.

The complainant by his bill seeks to restrain the defendant from proceeding to sell, at execution sale, a tract of land, of which the former claims to be rightfully seised. The facts of the case are as follows:

The land had been sold under a deed of trust executed by James E. Bowman, in satisfaction of a debt due from him to William Kincaid. At the sale, Kincaid became the purchaser, and received a conveyance for the same, from the trustee. Afterwards, and within two years from the trust sale — perhaps in July or August, 1851 — an arrangement was entered into between the complainant Huffaker (who claimed to be a judgment creditor of Bowman for some small amount) and Kincaid and James E. Bowman; in pursuance of which, Huffaker advanced to Kincaid upwards of $1400, being the amount of his debt for which the land was sold, and likewise paid to James E. Bowman the further sum of $150, and thereupon Kincaid reconyeyed said land back to Bowman, and Bowman, at the same time, executed a deed to Huffaker, vesting the latter with the absolute title in fee to said land. This was one entire transaction, in consummation of a previous agreement between the parties.

Prior to this transaction, in December, 1848, one Cornelius Bowman obtained a decree, in the Chancery Court of Claiborne, against the said James E. Bowman, for the sum of $348 52. And in less than twelve months from the date of the conveyance from Kincaid to James E. Bowman, above mentioned, he caused an execution to be issued upon said decree, and to be levied upon said land, as the property of James E. Bowman, his debtor. Anri to enjoin the levy and sale under this execution is the object of the present bill.

The complainant insists that the transaction was a redemption by him of the land from Kincaid, and an extinguishment of Bowman’s equity of redemption under the statute.

Eor the defendant it is assumed that the transaction, in fact and in legal effect, was a repurchase of the land by James E. Bowman from Kincaid; and that, by the conveyance of the latter to said Bowman, he became vested with the legal title to the land, and had such a seisin thereof, as that the lien of the defendant’s decree attached upon said land instantly upon the execution of the deed from Kincaid to him, notwithstanding the conveyance to the complainant.

It is true that, by the act of 1833, ch. 92, § 6, a decree in Chancery for the payment of money forms a lien upon the lands of the defendant, in like manner as a judgment at law. And we hare recently beld that such lien will attach upon lands subsequently acquired by the debtor, and continue to be operative for the period of twelve months from the time he may have acquired the same. If, therefore, the position were correct, that, by force of the conveyance from Kincaid to James E. Bowman, he became instantly seised of the land, the conclusion insisted upon by the defendant’s counsel would inevitably follow; inasmuch as the decree was rendered in the county where James E. Bowman resided at the time, and where the land is situated.

But the position assumed for the defendant is not maintainable upon the facts of this case. It is true, the proof shows that, in form merely, the redemption of the land took place in the name of Bowman; but it is admitted that the redemption-money was Huffaker’s, and that he paid it over to Kincaid in redemption of the land. It is clear that the redemption was intended to be, and in legal effect was, a redemption by Huffaker; that no title or beneficial interest was intended to be vested in Bowman ; and that the use of his name in the redemption of the land, and the conveyance to him, were only resorted to as the most effectual method known to the parties of accomplishing the end in view, which was, to cut off and extinguish his equity of redemption, and estop him, in the future, from asserting any claim to the land, he being a man of litigious disposition, and insolvent.

Upon these facts, did the complainant acquire a valid and indefeasible title to the land ? We think he did.

The fallacy of the elaborate argument on the other side lies in the assumption that, upon the conveyance from Kincaid to Bowman, the title rested in the latter; and though hut for an instant, that was sufficient for the lien of the defendant’s decree to attach upon the land as the property of the debtor. This reasoning is unsound. The transaction was one continuous, entire act. By the agreement and understanding of all the parties, preceding the execution of the deeds, no interest was to he vested in Bowman; he was used merely as the medium for passing the title to the complainant; and the two deeds, being executed at the same time, and taking effect at the same instant, constitute hut one act, the legal effect of which was to pass the title immediately and without intermission from Kincaid, through Bowman, to the complainant. This is a familiar principle in cases of dower. In treating of the question, "What will he a sufficient seisin of the husband to render the wife dowable ? Blackstone says, Book ii., 130-132, “The seisin of the husband for a transitory instant only, where the same act which gives him the estate conveys it also out of him again — as where, by a' fine, land is granted to a man, and he immediately renders it back by the same fine — such a seisin will not entitle the wife to dower; for the land was merely in transitu, and never rested in the husband, the grant and render being one continued act. But if the land abides in him for the interval of but a single moment, it seems that the wife shall be endowed thereof.” See also 1 Johns. Oases, 95; 15 John. Rep., 458; 4 Mass. Rep., 569, and authorities referred to, where this subject is considered. It is clear, therefore, upon the principle above stated, that the lien of the defendant’s decree did not attach upon the land, Bowman having no seisin thereof; »

But upon another and less refined principle, no lien can be beld to exist in favor of the defendant, upon the facts in this record. The lien of a judgment will not, in equity, attach upon the mere legal title to land existing in the defendant, when the equitable title is in another person. Here, Bowman had no beneficial interest in the land: the complainant advanced the entire redemption-money, with the view of acquiring the absolute title. With knowledge of these facts, the defendant cannot be allowed to claim that the lien of his decree attached upon the mere naked legal title in Bowman, the preceding principle out of view.

Nor do we think the argument well founded, that the transaction, in the method adopted by the parties, was a fraud, in law, upon the creditors of Bowman. It is certainly true, that if Huffaker had simply redeemed the land, as a creditor, in the ordinary form, it would still have retained its redeemable character, in his hands, in favor of other creditors of Bowman. But it was divested of that character by the extinguishment of the right of redemption. If Bowman had the legal right to assign the equity of redemption given by statute, it is difficult to perceive how the exercise of that right, for an adequate consideration, and in the absence of actual fraud, can be regarded as a just ground of complaint on behalf of other creditors of Bowman, who, by their own laches, have lost the right of redemption secured to them by the statute.

The right of the judgment debtor to assign his equity of redemption seems to be a settled question. See Hepburn vs. Kerr and Davidson, 9 Humph., 726-730, and cases there referred to. And if this right be once fairly extinguished in the judgment debtor, can it be held to exist in favor of Ms creditors? To affirm that it might continue to exist in favor of creditors, though extinct as to the debtor — through whose right the equity of the creditors is to be wrought out — would seem to be absurd. But as the case does not, in the pleadings, assume this aspect, it were needless to pursue the discussion upon this point.

The decree will be affirmed.  