
    SIMMONS vs. TILLERY AND WILSON.
    
      Equity. The bill, and Wilson's answer stated, that John Carmack, had an entry of 300 acres on Big creek, in Hawkins county, made in the year 1779, which Wilson purchased ; and for a full and valuable consideration, sold 150 acres on the 1st day of September, 1787, to Joseph Bishop, his son-in-law, being the place whereon Bishop then lived. For which Wilson gave his bond to Bishop on the same day, to make a title as soon as a grant could be obtained Bishop continued to hold possession of the land. Wilson obtained a grant for the 300 acres, dated the 29th of July, 1793, On the 10th of November, 1784, Wilson gave a bond to Jonathan Langdon, for 400 acres of land; judgment was obtained upon this bond in Hawkins county, in February, 1799, for about $1200, for the benefit of the defendant Tillery. Garner also obtained a judgment against Wilson in the district of Mero, in May 1801. Execution issued on both judgments, and the defendant, Tillery became the purchaser of the land in dispute, under both judgments. Under the first, a purchase was made at sheriff's sale, in 1803, for the sum of five dollars ; and in August, 1802, under the last, the defendant Tillery, purchased for the sum of one hundred and one dollars. In consequence of the sale under the first judgment, a sheriff's deed was obtained, dated September 11th, 1805.
    
      The court of equity is not bound to refer to a jury every fact which may be charged in the bill and denied by the answer. If a man before obtaining a title,for a valuable consideration on, gives a bond to convey a tract of land which he claims, and afterwards make a conveyance to the obligee, the title is good, nor will the land be subjected to the satisfaction of a judgement obtained against the original obligor, prior to the time of his conveying tothe obligee ; possession of the bond is sufficient evidence of the interest of the possessor who stands in the situation of the original obligee. A purchaser of land under execution takes it subject to all the equitable claims to which it was liable in thehands of the debtor, prior to the judgment.
    The bill further charged, that the plaintiff purchased the bond from Wilson to Bishop, on the first day of January, 1801; that he took the bond with him, and applied to the defendant, Wilson, for a title ; upon this application Wilson complied with the bond, by conveying to him 197 acres, being the place where Bishop lived; but as there had been no survey, it had been, previously agreed by Wilson, to convey all that part of the land Which lay on the north side of the creek, more or less, in discharge of the covenant. It turned out to be 197 acres ; that he gave for the bond $1200, and took possession from Bishop, which he has continued ever since.
    An action of ejectment had been commenced by the defendant, Tillery, against the plaintiff, and judgment therein for the plaintiff-prayer for an injunction and relief.
    The defendant, Tillery, in his answer, admits the judgments, executions, his purchase at sheriff's sale, and recovery on the sheriff's deed in ejectment-denies that he had any knowledge of this covenant. to Bishop, at the time he purchased, as charged in the bill. He does not know when Bishop took possession under the covenant. About the first of January, 1801, he was informed that Bishop was in possession, but as he was son-in-law to Wilson, he expected he was there by courtesy, and not by claim to the land; he does not believe Bishop ever paid any thing for the land-that Wilson once offered the same land, Bishop then living on it, in part of Langdon's judgment, which was his property. Bishop never pretended to hold against the judgment, and the plaintiff had offered to buy it of this defendant, if he should hold it. Insists there is no transfer of the bond from Bishop to the plaintiff, and believes in reality the plaintiff purchased from Wilson, and not Bishop, after the judgement was obtained, but conceals it in order the better to prevent the judgment from overreaching his purchase. He does not believe the covenant covers the same land the deed calls for, and is for 150 acres, the other for 197 acres ; nor does he believe the covenant is for part of the land called for in the grant; the first calls to lie on a branch of Big creek, the latter on both sides of Big creek.
    It was further insisted by the answer, that if there was such a bond, it ought not to affect the defendant, who was a purchaser at sheriff's sale for a valuable consideration, without notice ; and at the time he purchased, believed he was getting a good title; that in the year 1801, Wilson was indebted more than he was worth; be was insolvent, and the plaintiff, or any person, must have known, that under the circumstances of Wilson’s embarrassment, any conveyance from him at that time, would be considered fraudulent; particularly relies on there being no assignment of the bond to the plaintiff; on a deed from the sheriff, under Garner’s judgment, dated September 11th, 1805.
    Absalom Looney, Michael Looney, Jesse M'Williams and William Payne, proved among them, that about the time Wilson gave his bond to Bishop, he paid him two horses, Which was understood to be the consideration. The price of land was then low, no money in the country, and what land was sold was for property ; the price of the land appeared to be small, but at that time, and for a long time afterwards, Wilson was in no way embarrassed in his circumstances, and never was supposed to be declining in his affairs until after Langdon’s judgment was obtained. Payne, one of the witnesses, said, that he was not supposed to be insolvent until the year 1799.
    Joseph Bishop was offered as a witness for the plaintiff-this was objected to on the ground of interest. The court permitted him to be sworn, as this was a question before the court, and not a jury; they reserved to themselves the power of rejecting it if necessary, upon principles of law. He stated the covenant, payment of the two horses, that the land was cheap; he exchanged this land with young Samuel Wilson, his brother-in-law, giving up the bond to him, who, as he understood, immediately sold it to Richard Mitchell, and Mitchell to the plaintiff; the bond, as he understood, went with the sales, He had been living on it since 1787. Samuel Wilson, junior told him to give up the bond to the plaintiff; he did so, but never saw the covenant since he parted with it to Wilson, till now.
    The court rejected this witness upon the ground that he might be liable for the consideration received by him, in case the land were lost.
    
    White and Williams argued for the plaintiff,
    and relied upon 1 Pow. Cont. 313. 2 Pow. Cont. 56, 58, 59, 60, 61. 1 Fonb. 343. 2 Fonb. 306, 1 Pow. 297 to 302, 428.
    Campbell for defendant
    Tillery, said, he should rely upon the following positions:
    1st. The proof is insufficient as to the payment of the consideration by Bishop.
    2d. There is no testimony that the plaintiff claims under this bond except Bishop’s, and that is rejected by the court.
    3d. Admitting Bishop’s testimony to have been received, it will not establish what became of the bond after he parted with it to young Samuel Wilson. What Mitchell said, cannot be noticed.
    There is no proof how the plaintiff got this bond, nor what he gave for it. He must shew, that he was a purchaser for a valuable consideration or he cannot recover. 1 Fonb. 261, et Seq. shews that this transaction would be fraudulent. The consideration given by Bishop was inadequate, and Wilson was at that time indebted more than he was worth ; the bond to Langdon shews that. The consideration was colorable only, and there was an intention in Wilson to defraud, when he gave the bond, consequently it is void as to creditors, either previous of subsequent, 1 Fonb. 267, &c. If a person covenant or article to convey land, it binds the conscience, but not the land. 2 Fonb. 359. Besides, there is a difference between such a bond as this, and the articles spoken of in the books. A covenant to convey, cannot affect a creditor by judgment, without notice.
    There being no assignment on the bond, is conclusive, that the plaintiff does not claim under it.-In fact there is no proof whatever that he does-where proof must be in existence, and is not produced,it must always be presumed that the fact never existed.
    He then proceeded to consider the case : 1st. as it respected the plaintiff. 2d. On the part of the defendant.
    The description of the land in the deed made,does not correspond with the bond ; it ought not therefore to affect third persons, as the two instruments must stand independent of each other. Parol proof cannot be received to correct them ; the bond is for 150 acres of land, and deed for 197. Surely the bond, if alien, cannot extend to 197 acres ; if so, it might extend to 1000 acres, if Wilson had as much, and cover all his property from creditors. The specific boundaries of the 150 acres, never were ascertained ; they were uncertain, and for this uncertainty the whole is void.
    When Wilson sold this land he had no right to it; the bill states an entry in the year 1779, but none is produced or proved, we must therefore consider the subject on the grant alone. This case steers clear of one, where a person gives his bond for a specific piece of land, having a right to it; if this bond to Bishop was an honest transaction, why did not Wilson make a title from 1793, when the grant issued, till 1801. This shews decisively, it was only intended at first to be colourable. Simmons, the plaintiff being in possession, is no proof of a contract, or of it self to be taken as part execution of a contract,unless one were proved. Let us next consider the relative title of the defendant upon which he has recovered at law.
    The bond to Langdon for 400 acres of land, in value appeared equal to all Wilson ever was worth, or nearly so. It was given three years prior to Bishop’s bond.
    The plaintiff being a purchaser, might be affected by notice of Wilson’s circumstances when he purchased. Tillery could not, as he was a creditor, and was obliged to take such property as he could get.
    The origin of our claim, the bond to Langdon, is several years prior to their pretended lien. Our lien, the judgment of 1799, is prior to the plaintiff's deed in 1801. The plaintiff cannot say, that he did not purchase of Wilson, for the deed states the consideration, $1200, to have been received from the plaintiff, and he is estopped to say otherwise.
    It is a new case for a court to interfere against a purchaser and creditor, in favor of a person who purchased of a debtor. The defendant has law and equity both on his side-the court will not interfere upon the ground of equity alone ; this would be contrary to all the books. In a contract between A and B, a court of equity will not look beyond the plain meaning of the instrument, where it is to affect the right of a third person.  Equity will consider that as done, which ought to have been done. 
    
    It is true, that after articles of agreement for a valuable consideration, the vendor is considered as a trustee for the vendee. Such articles, however, would not attach upon lands in the hands of an heir. In England, articles will produce a lien, so will a mortgage, and so will a judgment. In England, the fee simple cannot be affected by judgment; the land could only be extended by elegit, and one half of the yearly profits taken till paid. Here the fee simple is sold under judgment; hence, judgments here, have as great obligatory force as to liens, as articles; hence, the distinction between liens arising from articles and judgments, is destroyed in this country
    The case of Finch vs. the Earl of Winchelsea, does not decide this case. There, the person holding the articles had to pay off the judgments; there is no offer of that kind here. A purchaser for a valuable consideration, is not affected by notice of a prior voluntary conveyance. It is insisted that a mortgage is superior to articles of agreement ; we insist that a judgment here, is on the same footing with a mortgage, and is alike superior to articles. In 1 Fonb 343, it is said, a court of equity will supply defective executions of powers. This is an innovation upon the general doctrine.
    In equity the motive must be much stronger to induce a court to act, than repel. This principle is clearly in our favor. Equity will never assist a defective execution against a purchaser without notice. Applying this principle, there is no superior motive to actuate the court against us. Here Mr. Campbell briefly stated the case on both sides.
    In 1 Fonb. 343-4, it is said, a court of equity will aid a defective conveyance in favor of a mortgagee, though the mortgagor had confessed judgment; but this case refers to page 34 of the same book, where the author observes, it is the only case where a court of equity will interfere against a purchaser for a valuable consideration, who has the law on his side.-The principle equali jure melior est conditio possidentis, 2 Fonb. 206, relied on by the other side, is in our favor.
    The case in 2 Atkins, 53, speaks of notice by lis pendens; here we have a judgment which the plaintiff was bound to take notice of when he purchased ; it is matter of record. This case is referred to in 2 Fonb. 306, and does not warrant the distinction there taken; it puts mortgages, judgments, statutes staple and merchant, all on the same footing. He could not see how the doctrine respecting parol agreements, as referred to in 1 Pow. Cont. 297, could come into view in this case.
    This court never determines a fact which is affirmed on one side, and denied on the other, without an issue to a jury. The act of assembly secures this right to the citizen, of which the court cannot constitutionally deprive him.
    Let this case be considered, as between the plaintiff and Wilson. He could not have compelled Wilson in this court to make a deed, without proof of payment of a valuable consideration ; the same proof is requisite here, and none such has been offered.-Claiming by deed, as the plaintiff does, we overreach in that by our judgment, which is older than his deed. No other mode of conveying land is known to the laws of our country, than that by deed, 1715, c. 38, s. 58. And surely the court will not recognize any thing else, as affecting the claims of third persons. A purchaser under a judgment is in as good a situation as if made of the person himself.
    The consideration expressed in the deed, is stated therein to have been received by Wilson of the plaintiff ; no proof can be received to shew it was otherwise.
    
    If the plaintiff succeed in this case, it will much affect the interest of society ; creditors will never be safe. It is a case where an injunction has been obtained-we have both law and equity on our side ; and the plaintiff is a purchaser with notice of our judgment, therefore it can be no injury to him. In the course of Mr. Campbell’s argument; he also cited 1 Fonb. 260, 267, 359, and 1 Bac. Ab. Cun. Ed. 73.
    
    Kennedy on the same side,
    quoted 1 Hay. 396-7 ; a sale from a parent to a child, is presumptive evidence of fraud, where creditors are concerned, and the onus probandi, lies on the child as to the fairness of the transaction. If a man be indebted to a larger amount than he is worth, and conveys to a child, it is void, unless a full consideration be afraid, or such as a reasonable man would have taken from any other person. The two horses were not near the value of the land, and the covenant was a fraud on Langdon. Tillery stands in his shoes.
    
      
       In the rejection of Bishop’s testimony, I am strongly inclined to think the court erred. If a person sell real property, making a deed without warranty, he can be a witness respecting the land. 1 Str. 444. Doug. 654. 6 T. Rep. 606. It appears from the best authorities, that he is not liable, neither for the value of the land nor consideration received. See Sugden on vendors and purchasers. Bishop, it seems, did not make a deed, he barely parted with his right to the bond, without any contract respecting it whatever. In doing so, without suggestio falsi, or suppressio veri, it cannot be seen how he would be liable in any form of action, or in any event. The assignment of an unnegotiable chose to action, creates no other liability than would arise from an implied warranty, that the demand was a subsisting one. See Addison’s Reports, 56, 269. 1 Dall. 444. Add. Rep. 10. 2 John. Rep. 179. 1 Caine’s 17, 5 Mass. Rep. 559. 4 Mass. Rep. 41.
    
    
      
       1 Pow. Cont. 313.
    
    
      
       2 pow. Cont. 56, 58, 59
    
    
      
      
         1 Bac.Ab 539. 1 Pow. Cont. 369.
      
    
   Per Curiam.

In the course of this argument, which has been lengthy, a preliminary question presents itself towards its conclusion, Whether the court can determine any matter of fact averred by the bill, and denied by the answer, without the intervention of a jury ? It seems to us that we can. The acts to which we must advert for information on this subject are, 1782, c. 11, 1801, c. 6. It never could have been the intention of the first act, that every point of fact contained in the bill and denied by the answer, should at all events be tried by a jury, Such a proceeding would produce so much perplexity and difficulty, that a court of equity, instead of contributing to the public good, would operate in a different direction. Common sense, then, would suggest that issues must relate only to such facts as should be thought by the court material, The act of 1801, c. 6, sec, 36 and 40, were intended to regulate the mode of selecting these material points. Under the act of 1782, things in this respect were left in too vague a state, and it was found that great dispute and delay arose from the mode of determining what should be considered material points in a cause ; these disputes too, generally embarrassed a cause upon the hearing; thus fatiguing the minds of the court and jury, with mere preparatory questions. The 36th section of the act, makes it the duty of the attornies on different sides to agree upon issues themselves, as to these material points ; and if they cannot agree, either may apply to a judge, giving him copies of the bill and answer, whose duty it shall be to examine them, and make issues upon such parts of the pleadings as he may deem material. It all this shall have been omitted, and the court, upon final hearing, shall doubt as to matters of fact, they may, ex officio, order issues to he tried instanter. In this process the trial by jury is carefully preserved, as either party may apply to a judge upon such material points as he may suggest; and no doubt, if such suggestions be of pure matter of fact, they never would deny an issue.

It has been several times determined since the act of 1801, that upon the final hearing, no issues are to be made, except to satisfy the court. It is of great importance in the doing of business, that this should be the case, far it would be useless to have an issue of fact, if the testimony were altogether on one side; or suppose proof on the side of the plaintiff, where a fact is denied in the answer, agreeably to the established law, the plaintiff cannot have a decree.- What benefit could arise from having a jury ? Suppose you have one, and they find for the plaintiff without any proof, contrary to an established principle of law, would the court be bound by it ? they would not. Nay, they would be obliged to grant a new trial. If contrariety of evidence should take place on the hearing, leaving the fact in a state of uncertainty, then the court would be obliged of course, to order issues instanter, but not otherwise.

Note.—In the case of Pember and wife vs. Mathers, 1 Bro. C. C. 52, anno, 1779, lord chancellor Thurlow observes, “ I take the rule to be, that where the defendant in express terms, negatives the allegation of the bill, and the evidence is only one person affirming what has been so negatived, there the court will neither make a decree nor send it to law. Mr. Sugden in his treatise respecting vendors and purchasers, a modern work of merit, page 505, in reviewing the authorities on the subject before us, and particularly the case referred to, which he admits to be the settled law, remarks, that the practice had formerly been, to permit the reading of an answer upon the trial of an issue out of chancery, but since the uniform adherence of the court to the principle referred to in Lord Thurlow’s opinion above, it had been considered improper to read the answer upon such a trial. There can be no doubt, that the practice in England has been uniform since the case of Wakelin vs. Walthal, anno, 1679, 2 Chan. Cas. 8, not to make a decree upon the testimony of one witness alone, when opposed to the answer, whether a trial at law had taken place or not. It is however undestood, that after trial at law, the court would decree, if there appeared circumstances to aid the testimony of the witness. But when those circumstances were strong and convincing, the chancellor decreed without at trial. In ordinary cases, issues are never ordered by the court, unless where doubt exists. This is believed to be law here. It seems important to the happiness of society, that an answer should not be overturned by the testimony of one witness, otherwise a man who had bona fide closed a transaction as he thought, by conforming to the principles of justice, and to settled legal principles and forms ; relying on those principles and forms as furnishing evidence of correctness of his conduct, would be under the necessity of proving, by witnesses, that correctness when called on in a court of equity, if an unprincipled person were procured to swear falsely.-The solemnity of a deed in such a case, would of itself have no effect; a witness to a transaction may have died or removed and if a person's own answer upon oath,respecting the uprightness of his conduct in the acquisition of his acknowledged rights,were not equal to a single witness,the security of honestly acquired property,and quiet of society would be greatly endangered in the existing state of the world. See 2 Atk. 19. 3 Atk. 407. 1 Vez. 95. 3 Vez. jr. 478. 9 Vez, junr. 284 1 Smith’s, Rep. 219. Hen. & Mun. Rep. 372. Com. Dig. tit. chancery X. 4 v. 1 Call.224, 2 Wash. 530, 544.

Our next enquiry is respecting the covenant of S. Wilson, in the year 1787, to Bishop. But it is urged, that at the time Wilson gave this Bond, he had right to the land, not even an entry. It is true no entry has appeared, though stated in the bill; we must therefore assume the position, that he had not a right to the land, when he gave his obligation to Bishop, but we are all of opinion, as it respects the parties before us, the moment he obtained the grant in the year 1793, this covenant fastened on it, and was as obligatory upon Wilson, as if he had an entry or grant when it was given. If the bond was merely colorable, and intended to defraud creditors or others, is is certain void, but there is no kind of evidence of this. It is clear beyond a doubt, that this bond was founded on a bona fide consideration-whether it were adequate to the value of the land, is not for this court to say. It was valuable, and as Wilson was not embarrassed in his circumstances then, nor for many years afterwards, no evidence of fraud appears. Under these circumstances, Wilson bad a right to take more or less for his land, and whether he sold to his son-in-law or to another, made no kind of difference. That the court have nothing to do with the adequacy or inadequacy of a consideration, when the contract was in good faith, maybe ascertained from the authorities.

The effect of Langdon's debt will next be considered. No person will say, that the bond to Langdon for land elsewhere, was any lien on the piece now in dispute. The whole dispute will then lie between Langdon's judgment and Bishop's bond; the judgment was only a general. lien, it did not bind any specific tract. Bishop's bond was a specific lien, a valuable consideration having been paid therefor,and from its date, Wilson, in the eye of a court of equity, was merely the nominal owner ; Bishop in reality was the owner, having paid for it-the vendor was only trustee for the vendee. 1 Eq. Cas. 679, pl. 5, and authorities there quoted. Therefore, Langdon’s judgment did not bind this land,in the hands of Wilson, the 150 acres we mean.

It is further objected there is no evidence shewing that the plaintiff is the purchaser of the bond for valuable consideration; the court, under the circumstances of this case, do not think any further evidence than appears, is necessary on this ground. It appears the plaintiff exhibited the bond to the court, and it is appended to his bill ; this to us is evidence of ownership, 1 Eq. Cas. 229. pl. 10. By our law, act 1801, c. 6, s. 54, it is lawful to transfer these choses in action. Young Wilson purchased the bond of the obligee, and by his directions it was delivered to the plaintiff. At least, since our act of 1801, the evidence is sufficient, and it is not such a contingent interest as would render it necessary to make other proof of consideration paid. What amount of consideration he paid for it is unimportant, or whether Bishop or any other person gave it to him, having the right, the valuable consideration which Bishop gave, is attached to it.

It has been further objected, that the plaintiff purchased with notice of Bangdon’s judgment; that is never presumed, there must be proof of express notice, constructive will not do, 2 Fonb. 155-6-7, in notis. Admitting however, that the plaintiff had notice of this judgment, it would not hinder him from buying the land from Bishop. If Bishop’s claim Were good, there was nothing immoral in buying it.

But it is contended, the court are precluded from enquiring, whether Bishop paid the consideration by the deed from Wilson to the plaintiff. This court will not receive evidence to contradict a deed, but they may receive as to the consideration which will be compatible with it.

Though Wilson might have received the consideration of Bishop for the bond, his bond was still out, and whoever delivered it up to him, paid the consideration, in effect, to him, and nothing is more common in such cases, than to state in the deed made to the assignee or holder of a bond, the receipt of the consideration of him.

It is strongly insisted, that if the plaintiff prevail in this case, the situation of creditors will be injuriously affected-far otherwise it appears to the court. Though articles or a bond, be an inferior lien to a mortgage, it is a higher one than a judgment, which is only a general security, and binds no particular tract as a bona fide bond for a valuable consideration does; and if either a creditor or bona fide purchaser by bond, must lose, it is surely much more reasonable, that a person who has contracted upon the personal credit of another, should lose, than one who had paid for the specific land.

We lay it down as a general principle of law, that the purchaser of land under an execution, takes it subject to the same equity it was subject to in the hands of the debtor, previous to the judgment. Actus legis nemini facit injuiriam.

The plaintiff is entitled to 150 acres called for in the bond, and no more. Let a surveyor therefore be appointed to make a survey of the 197 acres, and make report thereof to the next court by plat; in this way the court will be enabled to lay off the 150 acres, in some regular form to suit the plaintiff, and decree him a right therefor. 
      
       See 1 Hen & Mun. 93, 372. 1 Wash. 337 Caine's C.E. 96. Littel 32. 2 Gould's Ed. Esp. N. P. 362.
     
      
       6 East. 257. 2 Lev. 70. 1 Atk. 188, 190 Cowp. 705. 8 T. R. 529. 1 Fonb. 116, 117, 118, 119. 1 P. W. 277 2 Pow. Cont. 78.
     
      
       1 Wil. Ed. Bac.Ab 113 n. Kame's Pr. Eq. 324. 5.
     
      
      See 4 John. Rep. 461.
     
      
      See 3 T. R. 474. 1 Vez. 366 1 Eq. C. 232. pl. 7, 8. 4 Mass Rep. 135 4. Hen. and Mun. 113.
     