
    John Goodwin v. Henry Anderson et al.
    The interest in real estate of the vendee thereof, who ba|^ciiH£ a bond for title when the purchase-money is paid, and who has paid eSJpa part of the purchase-money, is not subject to seizure and sale under execution at law. .
    A. sold a lot of land to M. and gave M. a bond to make title when the purchase-money was paid : for which M. gave two notes payable in one and two years ; on the maturity of the first note M. was sued thereon by A. at law, and judgment was obtained. The lot bought by M. of A. was levied on under execution on this judgment, sold and bought by G., who filed a bill against A. & M. demanding a title to the lot; held, that G. was not entitled to the relief asked, and that his bill must be dismissed.
    Whether a purchaser of real estate under execution against the vendee thereof, founded on a judgment in favor of the vendor for the purchase-money, the vendee having only a bond for title, when the purchase-money is paid, is entitled to be substituted to the rights of the vendor, to the extent of his bid at the sale under the execution. Query ?
    
    On appeal from the vice-chancery court at Fulton, Hon. Henry Dickinson, vice-chancellor.
    John Goodwin filed his bill, stating that Henry Anderson, George Wightman, and one Osborne D. Herndon, since deceased, as trustees of the town of Aberdeen, in the county of Monroe, did, on the 16th day of October, 1836, proceed to sell to the highest bidder, on a credit of one and two years, certain lots in that town, taking from the purchasers thereof, two writings obligatory of equal sums with sureties to each, and executing and delivering bonds for titles, obligating themselves, as trustees of said town of Aberdeen, to make titles in fee-simple to the purchasers of lots, upon the payment of the purchase-money thus secured.
    That at this sale of lots, George D. May became the purchaser of block number forty-three, as designated in the plan of the town, he being the highest and best bidder therefor, at the sum of six hundred dollars, to secure the payment of which, he executed two writings obligatory, each for the sum of three hundred dollars, with JaredT. Hagy, and William J. Coleas his securities; one due in twelve, and the other in twenty-four mouths, payable to the said Anderson, Wightman and Herndon, as trustees; that the trustees at the same time executed and delivered to May a title bond, by which they bound themselves to convey to him a title in fee-simple to block forty-three, on the payment of the purchase-money.
    That the trustees were, by the stockholders in the town, vested with full power to sell, take notes and execute title bonds; that the title to the site on which the town was laid out and sold, was vested in the trustees by deeds duly recorded in the office of the clerk of the probate court of the county of Monroe; the trustees being fully authorized to make titles to the purchasers of lots, on the payment of the consideration-money.
    That on a division of the notes taken from the purchasers of lots in the town, the note executed by May and his securities, for three hundred dollars, payable twelve months after the date, became the property of one of the stockholders in the town ; that this note was put in suit in the name of the trustees, for the use of Anderson, in the circuit court of the county of Monroe, on the 2d day of April, 1838, against the makers of the note; that process was served on May and Cole, but not on Hagy; that at the April term, 1838, of that court, said suit was dismissed as to Hagy, and judgment rendered against May and Cole for the sum of three hundred and twelve dollars and twenty-five cents, debt and damages, besides costs. That an execution was issued, founded on this judgment, returnable to the April term, 1839, of said court, which came to the hands of the sheriff of Monroe county on the 29th day of February, 1839, and was by him levied on the same block, forty-three, in the town, as the property of the said May, on the 2d day of March, 1839, and exposed the same to public sale before the court-house door of said county, on the 1st Monday of April, 1839, having advertised the same as required by law, when the complainant became the purchaser, at the sum of two hundred eighty dollars and fifty cents.
    That the writing obligatory, due twenty-four months after date, was still unpaid.
    
      That complainant paid to the sheriff two hundred eighty dollars and fifty cents, the sum bid for said block, who thereupon executed and delivered to him a deed thereto, which has been proved and recorded.
    That said block forty-three, purchased by complainant at said sheriff’s sale, is the same for which the said writing obligatory was executed by May, Hagy and Cole; that at the time of the purchase of said block by complainant, and at the time of filing the bill, May was the owner and holder of said title bond; that May, Hagy and Cole were insolvent, and that the sale of said block forty-three was made by the sheriff, at the instance of the trustees, and of the usee.
    That O. D. Herndon, one of said trustees, had died, and complainant had applied to Anderson and Wightman, the surviving trustees, for a title to said block forty-three, but they refused to convey the same to him; that they alone were authorized to make titles to lots in said town.
    The prayer of the bill was that Anderson and Wightman, the surviving trustees, be compelled to convey said block forty-three to complainant; that the defendant May be compelled to deliver the title bond to be cancelled, and for general relief.
    The defendants, Anderson and Wightman, answered, admitting all the material allegations of the bill, as to the purchase by May, and the judgment, execution and sale to the complainant ; they admitted that the levy on the block in controversy was made at their instance and that of the usee, to whom the note had been allotted; and they submitted to the court whether, under the facts, they were bound to make a title to the complainant.
    The cause was submitted for final hearing before the vice-chancellor, at the November term, 1844, who dismissed the bill at complainant’s costs, from which decree the complainant prosecuted an appeal, by the consent of the defendants, to this court. The cause was tried upon the facts stated in the bill and answers, the parties having agreed to waive all want of exhibits, title papers, proof, form and irregularities at the rules or otherwise.
    
      -, for appellant.
    The complainant insists;
    1. That an equitable interest in land is the subject of seizure and sale, by virtue of an execution at law. It is conceded, that at common law, a mere equity is not the subject of seizure and sale by virtue of an execution at law, because it is a thing not tangible; it is not goods, it is not lands, it is not tenements. Therefore, being a right not susceptible of seizure by the rules of the common law, the sheriff could impart no title to the purchaser, under a sale by him. But this rule of the common law has been changed in this state, by statute. By the 48th section of the act oflS22, (How. & Hutch. 644,) it is provided, “ when lands and tenements shall be sold according to the provisions of this act, by virtue of an execution or other legal process, it shall be the duty of the sheriff or other officer, by whom such sale shall be made, on the payment of the purchase-money, to execute to the purchaser or purchasers, such deeds of conveyance as may be' necessary and proper to vest in the purchaser or purchasers, all the right, title, interest, claim and demand of the debtor or defendant, which he had in and to such lands and tenements so sold, either in law or equity.” From this it seems manifest that the legislature intended to change the rule of the common law, and make any interest which a party might have in lands, whether legal or equitable, the subject of seizure and sale by virtue of an execution at law. It expressly provides for the sale of an equity in lands and tenements. It requires that the sheriff shall sell, and upon the payment of the purchase-money by the purchaser, that he shall convey all the right, title, interest, claim and demand, either in law or equity, which the defendant had in the lands and tenements so sold. The language of the statute is broad and comprehensive ; it embraces every description of interest which a party has in lands, and makes that interest vendible under an execution at law.
    2. That by means of the purchase at sheriff’s sale, of May’s equity in said block of land, the complainant acquired the right as against the defendants Anderson and Wightman, the trustees and surviving vendors of said land, to demand the legal title from them.
    The vendors in this case, in addition to the personal security which they required the vendees to give, also retained the legal title to the land, as a further security for the ultimate payment of the whole purchase-money. From the facts of this case, it seems that they have resorted to and exhausted that security by means of process emanating from a court of law. The vendors and vendee elected, by their conduct, to consider the equitable title of the vendee vendible under an execution at law. They were the only persons directly interested, and could alone object to the sale. It is alleged in the bill and admitted by the answers, that the sale took place at the instance of the trustees and usee, the vendee making no objection; and to say that innocent and confiding bidders and purchasers acquire no title whatever, would be prostituting the process of the courts, to subserve purposes the most fraudulent. What title passed to complainant, by virtue of his purchase at the sheriff’s sale, and what was the effect of it upon the lien of the vendors for the remainder of the purchase-money? The block was levied on, and sold, at the instance of the vendors and their usee, by their execution, obtained upon a note given for part of the purchase-money, and that too, before the second note could be prosecuted to judgment after maturity. The sale by the sheriff was in effect a proceeding to enforce the lien retained by the vendors, to secure the payment of the purchase-money. It is clear, from the statute above referred to, that complainant acquired whatever title the defendant May had to said block, and is it not equally clear that the vendors are estopped from saying that complainant acquired no right to have the legal title from them by virtue of his purchase ; when it is admitted, by their answer, that the judgment was obtained, execution issued, levy made, and sale had by the sheriff', by their procurement, and at their instance? They cannot now be heard to say that the sale by the sheriff was illegal and communicated no title to the purchaser; to do so would authorize them to resort to a court of equity, and have the land sold the second time to pay the purchase-money still due. If the sale by the sheriff is void, this would follow as a necessary consequence, notwithstanding they have received $280, the amount bid by him at the sale by the sheriff. It would be to allow the defendant to pocket the amount bid by complainant, without consideration, and take a fraudulent advantage of their own conduct. The vendors, by retaining the legal title to the land sold, reserved to themselves the right to resort to it as an ultimate security for the payment of the purchase-money; and having exerted this right, by means of a sale by the sheriff, standing by and suffering the property to go off at less than the original cost, will they be allowed to repeat the process a second time, to the prejudice of a bona fide purchaser, who became such at their instance 1
    
    What is the just construction to be placed upon the conduct of these parties ? It is, that when the vendors of land have elected to subject the land at law to the payment of the purchase-money, they consented to waive the legal title or lien thereon, for the remainder of the unpaid purchase-money, and to surrender up the legal title to whomsoever should become the purchaser at sheriff’s sale; the vendee, by not objecting to the sale, thereby waiving his equity. Freeman’s Ch. R. 401. It is therefore confidently insisted, that the vice-chancellor erred in dismissing complainant’s bill, and this court should reverse the same, and vest a title to the block of land in the pleadings mentioned, in complainant.
    
      Davis, on same side.
    Are estates in trust the subject of seizure and sale by executions against usee at law 1
    
    The 29th section of H. & H. 349, is in these words: “ Estates of every kind, holden or possessed in trust, shall be subject to like debts and charges of the persons to whose use, or to whose benefit they were or shall be respectively holden or possessed, as they would have been subject to, if those persons had owned the like interest in the things holden or possessed, as they own or shall own in the uses or trust thereof.”
    The statute most clearly subjects estates thus circumstanced to be sold by executions against the usee. If there could be any doubt about this construction of statute referred to, arising from, the language used, the following statutes so clearly strengthen this construction that the most doubting must be satisfied. Section 5, H. & H. 350: All conveyances, by commissioners and sheriffs,'hereafter to be made, for lands, &c.,sold in virtue of any decree or judgment of any court in this state, shall be, and they are hereby declared to be, good and effectual for passing the absolute title to such land, &c. Again, section 48, H. & H. 644, declares that the sheriff shall convey both the legal and equitable interest to all lands sold by him, by virtue of a common law execution, &c. The inquiry is then submitted, to know how a sheriff is to convey an equity, unless he can sell 1 And further is it inquired, how he is to sell the equitable interest if it is not the subject of seizure and sale at common law 1
    
    If the above settles the question in favor of the sale of a trust estate, then the decision of the chancellor must be reversed, and a decree rendered for complainant.
    But, upon another ground, about which there can be no possible doubt, we are entitled to have the decree reversed. The interest of the vendee, in this class of cases, is not merely equitable, but is legal also, and is, according to the authority of adjudicated cases, the subject of seizure and sale, and the purchaser is substituted to all the rights of the vendee, and must have called on the vendor for title, upon the payment of the residue of the purchase-money, which he would have been bound to have given. But in this case the vendor, having made the sale for the purpose of satisfying his lien, the complainant became entitled to the lien of the vendor, as well as the right of the vendee. The trust thereby becomes the trustee of the purchaser, and loses his relation to the vendor. The entire right in this case, by the sale, is vested in the purchaser, and the trustee became his trustee, and subject to his contract, and is to him alone responsible.
    In the case of Jackson v. Scott, 18 Johns. R. 95, the chief justice says, “The only question then is, whether, as Elijah Scott had only the possession of the premises, with a contract from the surveyor-general, entitling him to a conveyance on the payment of the purchase-money which yet remains due, he had such an interest as might be levied on, and sold on execution.” This question was decided in favor of the liability of the property to be sold, for reason given in the further progress of the opinion. The court, in another part of the opinion, says that Scott had a chattel interest in the property, which was the subject of execution. And that, although a mere equitable interest is not the subject of execution, but, if connected with the possession of the land, the legal interest of which possession is evidence, may be sold. See, also, 7 Johns. R. 206; 3 Caines, 188; 4 Wend. 464.
    The interest of a party in possession, is not a mere equity, like the interest of a mortgagor, out of possession, and may therefore be sold. 9 Cow. 86. See, also, 1 Buck. Ch. R. 86.
    I have endeavored, then, to show that the complainant in this case, by the sheriff sale, acquired the right that May had to the lot. I have also shown, that the sale having been made by the order and direction of the vendor, he being present and consenting, as charged and admitted, has passed, by that act, his lien to the purchaser; and conclude, the two propositions being admitted, that the trustees have had their relations changed, and are compelled to make title to the complainant.
    I have insisted that as the vendor and vendee do not complain, the mere trustee, having no direct interest, cannot complain.
    As almost every lot in the town of Aberdeen is in the same situation with the above, and the titles depending on this decision, it is respectfully and earnestly desired, that this case may receive the earliest attention of the court, that the improvement of the town may not be checked.
    
      Henry R. Garter, for appellee.
    The questions submitted to the consideration of the court, in this case, are these:
    
      1st. Is an equitable interest in real estate the subject of levy and sale, under an execution emanating from a court of law ?■
    2dly. Is such interest the subject of levy and sale for the purchase-money, under such execution %
    
    3dly. If so subject, can the purchaser be vested with a greater interest than that which the defendant himself had, or does the vendor thereby lose his lien for the purchase-money, if the amount realized from the sale by the sheriff is less than the original purchase-money, and thus give to the purchaser the right to demand a title from the vendors 1 And can the case be affected by the fact, that the sale was had at the instance of the vendors ?
    1st. Nothing can be clearer, upon either principle or authority, than that a vendee of real estate, holding only a title-bond, and not having paid the purchase-money, has not such an interest as is the subject of a judgment lien, or seizure and sale under an execution at law. This is admitted to be correct at common law ; but it is contended that, by a statute of this state, (Rev. Code, 212, sect. 55,) this rule has been changed. By the section referred to, it is enacted that “ when lands and tenements shall be sold, according to the provisions of this act, by virtue of any writ of fieri facias, capias ad satisfaciendum, or venditioni exponas, or other legal process, it shall be the duty of the sheriff, or other officer, by whom such sale shall be made, on the payment of the purchase-money, to execute to the purchaser such deed of conveyance as may be necessary and proper to vest in the purchaser all right, title, interest, claim or demand of the debtor or defendant, which he had in and to such lands and tenements, so sold, either in law or equity.” By reference to the preceding sections of the same act, it will be seen that the legislature did not intend to make any other than a legal estate liable to levy and sale, and that no change, was contemplated as to the kind of interest to be seized and sold. In the section quoted, it is stated that “ where lands shall be sold according to the provisions of this act,” &c., “ he shall convey,” &c. Now, no authority is given by this section to the officer to levy on any other interest than what had been given by the preceding sections of the same act. It only requires him to convey the interest which the defendant has in the lands, which the other provisions of the same act authorized and required the officer to sell. In cases in which the defendant in the execution has both a legal and equitable interest in lands, the lands may be the subject of seizure and sale, and then, by the deed of the officer, the purchaser can be vested with both the legal and equitable interest of the defendant. If the construction be given to this section, which is contended for by the counsel for the plaintiff in error, it would avail nothing in this case; because, if the land could be levied on and sold, for which the vendee held a mere title-bond, the purchaser at the sheriff’s sale would acquire only such interest as the defendant had. He would become, by his purchase, substituted to all the rights of the defendant, and by discharging the whole amount of the purchase-money, he might then have a right to demand a title from the vendor. But, in this case, it appears that there is still outstanding a large portion of the purchase-money, and the complainant makes no tender, or offer, and expresses no willingness to pay the residue.
    2dly. Nor do we consider that a sale for the purchase-money can make any difference. Why should it 1 The vendor has a lien on the land for the payment of the purchase-money, and stands in the attitude of a mortgagee. This lien can be enforced in a court of equity, by bill, for a specific performance. See Dollahite et al. v. Orne, 2 S. & M. 592. In the case just cited, this court say, that “it would be a great hardship on the vendor to drive him first to a legal remedy, which could not operate on his security,” and that “it would be a departure from the true intent and meaning of the contract,” and “might be unproductive ;” that “ the intention of the parties, in such a contract as this, can only be carried out in a court of equity; there full justice can be done in the first instance; whereas, if the vendor is driven to his remedy at law, he is compelled to change his security.” Now, if the land, for which the defendant held a mere title-bond, were the subject of seizure and sale, under an execution at law, for the purchase-money, why would the vendor be “compelled to change his security'?” Or why would such a course be totally “unproductive1?” If the lien could be thus enforced, the vendor would not be “ compelled to change his security,” nor would such a course be “ unproductive;” but just as effectual and productive as if he had proceeded by bill for a specific performance. The interest which the vendee has in land is the same, whether it is sold under an execution for the purchase-money, or under an execution for a different debt. There is no instance in which an equitable lien was ever enforced by sale under a process at law. The jurisdiction of the two courts is not concurrent in this particular; nor can the conseut of parties give any court jurisdiction.
    3dly. But it is insisted, that as the sale was had at the instance of the vendors and their usee, that they are estopped from saying that the complainant acquired no right to have a decree against them for a deed, by his purchase. If it be true, that because the land was sold at their instance, they thereby parted with their lien for the purchase-money, then the purchaser at the sheriff’s sale is subrogated to all their rights, and stands towards the vendee in the attitude of the vendor. In this view of the case, nothing was acquired by the purchaser but the lien for the purchase-money. The interest of the vendee, being an equitable interest, not having be’en the subject of levy, was not affected by the sale. This would avail the plaintiff in error nothing, because he seeks to acquire both the legal title of the vendor, and the equitable interest of the vendee. But we hold this to be misconceived. The officer sold, not the title or interest of the plaintiff at law, but, if anything, that of the defendant. The lien of the vendor is not the subject of seizure and sale, under a process at law, in any case against himself; much less, then, can it be sold under an execution in his favor, and against the vendee. If the lien of the vendors, and their legal title, did pass, by virtue of the sheriff’s sale, the purchaser would still have no right to demand a title from them, without purchasing the equity of the defendant or vendee. It is said, however, that the vendee impliedly assented to the sale, as he did not arrest it by injunction. We think it clear that it was not necessary that he should have so objected, because a purchaser at a sheriff’s sale, buys subject to the rule of caveat emptor. The vendee had no title which could be sold; the legal title was in the vendors, and could not be divested by any mode, until the purchase-money was paid. See 2 Johns. Ch. R. 312; 1 Bibb, 306; 1 A. K. Marshall, 174; 1 Ham. 314; 1 Yerger, 79; 17 Johns. R. 350; 1 Johns. Ch. R. 52: Harper’s Eq. 164; 1 Am. Eq. Dig. 480, sec. 26.
    Suppose such assent of the vendee be implied, we still think the plaintiff in error acquired no right to demand a title from the vendors. The sheriff, as such, can exercise no other powers than those with which the law clothes him. His powers are defined by law. The execution was his warrant. It is conceded that without the assent of all the parties interested, he could not have levied on and sold the land. In such sale then, he acted, not in his official character, but as the special agent of the parties. It cannot be said that an implied authority can divest one of lands, when the title has to be passed by deed. The authority for this purpose must be express, and of equal dignity with the deed itself. If the sheriff, in this instance, is to be regarded as the special agent of the parties, the plaintiff in error acquires no title by the deed, because the sheriff had no authority, under seal, from the vendors, or vendee. If the assent of all the parties be implied, the right to demand a title from the vendors, may have been acquired by the plaintiff in error, but this right cannot be enforced by bill filed on the deed from the sheriff, which, as such, would be void. With personal property it is different.
    Besides, if the purchaser at the sheriff’s sale, under such circumstances, acquired a right to demand a title from the vendors, great injustice would be done. If several joint-owners of land were to sell it on a credit of one, two and three years, and distribute the notes taken for the purchase-money, among each other, he, who held the note falling due first, might subject the security for the payment of all three of the notes, to sale, before the other notes would become due, and thus, the joint security for all the notes, if it did not sell for more than enough to pay the first one, would be entirely lost to the holders of the other two.
   Mr. Justice Clayton

delivered the opinion of the court.

This is an appeal from the vice-chancery court at Fulton.

The complainant filed his bill, stating that the defendants, as trustees of the town of Aberdeen, had sold the lots in said town, and, amongst others, the lot in question, to George D. May. He executed his two writings obligatory, with sureties, for the purchase-money, and took a title-bond from the vendors, in which they stipulated to make title, when the purchase-money should be paid.

The first bond not being paid at maturity, suit was brought upon it, and the lot in question sold under execution at law to satisfy the judgment. At this sale the complainant became the purchaser, for an amount less than the judgment, and leaving the second note still unpaid. He. demanded a title in fee from the vendors, the trustees, and upon their refusal to make it, he filed this bill to compel them to do so. The answers admit, in substance, the allegations of the bill, but deny the right of the complainant to the relief sought. The bill was dismissed by the court below.

The first inquiry which arises upon the argument is, whether the defendant May had any interest which could be sold under execution at law. His interest was an equitable estate, with right to call for the legal title, upon payment of the whole purchase-money. Beyond all doubt, an equitable title could not be sold at common law, under an execution from a court of law. 8 East, 481; 5 Bos. & Pull. 461. In the case in East, Lord Ellenborough remarks, “ that the sheriff could only sell subject to the trusts ; that the execution creditor, or the vendee, would still be obliged to go into equity, to get an account, or to redeem prior incumbrances, which might be done, in the first instance, with less expense and delay; besides, the destruction of the debtor’s estate, which, under so much doubt and difficulty, would sell greatly under value, so that a large equitable interest might be exhausted, in satisfaction of a small demand, to the detriment of other creditors.”

The statute 29 Charles II. ch. 3, sec. 10, operated some change of the common law in this respect. But in the interpretation of that statute, the courts held it to embrace only those trusts, in which the cestui que use has the whole real, beneficial interest, and the trustee only the naked, formal, legal title. It was holden, that an execution at law would not reach an interest which a court of law could not protect and enforce, and that it would only operate upon an interest known and recognized at law, or an equitable title, in which the cestui que use had the entire beneficial right. 1 Johns. Ch. 56; 9 Cowen, 81; 1 Freeman’s Ch. R. 105. This was the settled English doctrine. 2 Wms. Saun. 11, n. 17.

In this country a great diversity of views has prevailed in the courts, and in some of the states the courts of law “have, by a gradual and almost insensible progress, adopted the equitable views of the subject.” But many of the state tribunals have adhered to the English decisions and distinctions; indeed, this has been the general, and prevailing course of decision. New Hampshire, New York, Ohio, North and South Carolina, and Tennessee, have all decided, that equitable interests cannot be sold at law, unless some statute, more comprehensive in its provisions than the section of the statute of frauds, already referred to, authorize it. 2 New Hamp. 16; 9 Ibid. 20; 3 Cowen, 81; Baird v. Kirtland, 8 Ohio, 21; Guthrie v. Gardner, 19 Wend. 414; Camp v. Coxe, 1 Dev. & Bat. 52; 4 Dev. 174; 4 M’Cord, 340; Shute v. Harder, 1 Yerger. The same view, in regard to the law of Maryland, is taken in a well-considered case in the supreme court of the United States. Van Ness v. Hyatt, 13 Peters, 298. These decisions have been made in reference to statutes containing provisions strongly resembling ours.

Shall a different construction be placed upon the statutes of this state 1 The. provisions for which such effect is claimed, are to be found in H. & H. 349, 644. The first enacts, “ that estates of every kind, holden, or possessed in trust, shall be subject to like debts and charges of the persons to whose use, or to whose benefit they were or shall be respectively holden or possessed, as they would have been subject to, if those persons had owned the like interest in the things holden or possessed, as they own, or shall own, in the uses or trusts thereof.” The last enacts, that “when the sheriff shall sell lands and tenements, it shall be his duty to make such deeds as may be necessary to vest in the purchaser all the right, title, interest, claim, and demand of the debtor, or defendant, either in law or equity.”

These provisions are in substance the same with the 10th section of the 3d chapter of the statute of the 29th Charles II. The first is a literal copy of a Yirginia statute, and the last has an almost exact original in the same state. The point now before us arose in the case of Coutts v. Walker, 2 Leigh, 280. The court there says: “ This was not such a trust as could be taken under our statute, subjecting trusts to legal executions. That was taken from a similar provision in the statute of frauds of 29 Charles II., but is more extensive in its operation, including trusts of personal as well as real property, whilst the English statute only embraces trusts of real property; and our statute, binding the trusts to all intents and purposes, as if they were legal estates, from the date of the judgment, whilst the English statute bound them only from the date of the execution. Hunt v. Coles, 1 Conn. R. 226. But in respect to the quality of the estate there is no difference between the effect of the statutes ; and in England their statute has been held not to extend to an equity of redemption. Plunkett v. Kirk, 1 Vern. 411; Sug. on Ven. 337; nor to a trust to sell and pay debts; Sug. on Yen. 339. But although this equity could not be taken in execution at law, it was, upon the general principles of a court of equity, bound in equity, as it would have been bound at law, if it had been a legal title; and the judgment creditor has a right to insist upon the execution of the trust, or the satisfaction of his judgment, precisely as the debtor would have had a right to have it executed for his own benefit, if there had been no judgment.”' “A court of equity will consider a judgment as operating a lien in equity upon the equitable rights of the debtor; as it would operate upon them at law, if they were legal.” Ibid. 281.

After much reflection and examination, we have been induced to adopt this as the true construction of our own statute. The great sacrifices which would result from the sale of interests, the extent of which was not ascertained, and which would have to be adjusted in equity, recommend the rule to our favorable notice. It has already been adopted by this court, in reference to personal property ; and as our statute embraces real as well as personal estate, we see no reason to draw a distinction between them. Thornhill v. Gilmer, 4 S. & M. 163. On the whole, our conclusion is, that, in a case thus situated, in which the whole purchase-money has not been paid, the vendee has no interest which can be sold under execution at law.

The consequence is, the decree of the court below must be affirmed. Whether the purchaser at the execution sale has the right to be substituted to the place of the judgment creditor, to the extent of his bid at the sale, we shall not now determine. The pleadings are not framed with a view to that point, and we shall not attempt to anticipate it.

The bill is dismissed without prejudice.

Decree affirmed.  