
    William V. Taylor vs. James M. Strong et al.
    Where a bill in chancery was filed by A. & B. & C. to rescind a sale of land made by A. & B. to H. & T., and the bill averred that A. & B. held the land in fee for the use and benefit of C., and one of the defendants to the bill called for proof of its allegations, and H., whose evidence was taken, in answer to the question whether he and T. had not bought the land of A. & B., trustees of C., replied that he had; it was held sufficient proof of C.’s interest.
    A. & B. conveyed a tract of land to T. in fee simple ; A. & B. held the title to the land for the use of C., and the deed was made to T. for the benefit of H., but neither of these trusts appeared in the deeds ; at the time A. & B. sold to T., one K. had a judgment against both H. & T.; there were other judgments against H., but not against T. After A. & B. conveyed to T., the latter with H. executed to them an obligation reciting the sale, and the fact that the land thus sold had been levied on under the execution against H., and promising to pay A. & B. five thousand dollars if they did not return the land free of incumbrance to them ; it was agreed between C. & H. that one Gr. was to sign this obligation, but he did not do so; the land being about to be sold under the execution of K., A., B. & C. filed their bill for an injunction, and a cancelment of the deed of A. & B. to T.; it was averred in the answer of T., and proved by the deputy sheriff, that the object of the sale by A. & B. to T., was to subject the land conveyed to the execution of K., and thus procure time by the valuation law being taken; H. however testified that the title had been made to T., because H. had other judgments against him, under which a levy might be made on the land. Held, that it was not sufficiently proved that the object of the sale by A. & B. to T., was to delay K. in his effort to collect his debt, and that the deed to T. should be annulled ; the title revested in A. & B., and K. perpetually enjoined from levying on the land.
    Nor would the fact when the execution of K. was levied on the land as the property of T., and it was advertised for sale accordingly, that C., on being informed of the proposed sale expressed his willingness thereto, affect C.’s right to relief against the execution of K.; it would be otherwise if a sale with C.’s tacit or express acquiescence had actually taken place, and K. had paid money or involved his credit in the purchase.
    
      Where, after the rendition of a judgment against T. & H. in favor of K., T. obtained a deed in fee simple to a piece of land from A. & B., with the understanding at the time that one G. should join T. & H. in the obligation to A. & B. for the purchase-money, which G. never did ; and the execution of K. was levied on this land ; it was held, that the sale to T. having been made on a condition never fulfilled, should be annulled, and the title revested in A. & B., and that it was not a proper decree to order a sale of the land to enforce the vendor’s lien.
    How far the vendor’s equitable lien will prevail against a judgment creditor of the vendee, whose judgment was older than the sale from the vendor to the vendee, — Qumre.
    
    On appeal from the district chancery court, at Holly Springs; Hon. Henry Dickinson, vice-chancellor.
    On the 6th of September, 1841, James M. Strong, James Mooring and Weldon Jones filed their bill against Thomas Hunt, William V. Taylor and James A. Knox, in which they allege that Mooring and Jones were possessed and clothed with the legal title to section one, township two and range two west, in Marshall county, and which they held in fee to and for the use of Strong; that an agreement was entered into between Strong and Hunt and Taylor, that Mooring and Jones should convey this land to Taylor; and that Hunt and Taylor should execute their obligation to Mooring and Jones, for the payment of the sum of five thousand dollars, in the event that they did not return said section of land or execute such an indemnifying bond, as would enable Mooring and Jones to sell said land and make good title thereto; and that John Glasgow, then of Tennessee, now dead, should join Hunt and Taylor in the obligation. The security of Glasgow’s name, he being a man of wealth, was the principal inducement to the agreement, as both Hunt and Taylor were then, and now, and had been all the intermediate time hopelessly insolvent.
    That at the instance of Hunt and Taylor, Mooring and Jones made a deed to Taylor to the land, and Hunt and Taylor executed the obligation agreed on, except as to the signature of Glasgow ; that the complainants never received or acted under this agreement because Glasgow had not signed it. The deed had been executed on the faith of the positive assurances of Hunt and Taylor that Glasgow would do so, but he died without doing it, leaving the obligation therefore inoperative. Hunt and Taylor paid nothing for the land, which was worth five thousand dollars.
    That James A. Knox obtained judgment in March, 1839, for $3524.10 against FIunt and Taylor ; a forthcoming bond on which, was forfeited, Sept 2, 1839, and a fieri facias on the bond had been levied on the land.
    That Taylor had sufficient negro property to pay this execution, but not enough to pay all his debts.
    That this judgment in favor of Knox was not a lien on the land superior to the equitable lien of complainants for the purchase-money; but that Knox, having only a creditor’s interest, or any purchaser under Knox’s judgment would hold the land, chargeable with all equities that the complainants would have against Hunt and Taylor, or either of them; that a sale of the land would throw a cloud about their right to relief and upon their title; they therefore pray for an injunction, that it may be made perpetual; the deed to Taylor be declared void, or Taylor be compelled to reconvey the same to complainants, or for other relief.
    The deed from Mooring and Jones was dated 6th day of May, 1840, was acknowledged on the same day, and filed for record on the 12th of May, 1840.
    The obligation given by Hunt and Taylor was in these words, viz.:
    
      “ Whereas, James Mooring and Weldon Jones have conveyed to William V. Taylor a tract of land, (here follows the description) for the benefit of Dr. Thomas Hunt, and which land has been levied on by the sheriff of Marshall county, to satisfy a debt due by said Hunt; now we, the undersigned, in consideration of said conveyance, oblige ourselves to pay to said Mooring and Jones the sum of five thousand dollars, in the event of our not returning said land, or executing such an indemnifying bond as shall enable them to make a good title to any person to whom they shall sell. Witness our hands and seals this 8th of May, 1840.”
    
      The answer of Taylor admitted all the allegations of the bill, except as to the charges that Glasgow was to sign the obligation, and as to his own insolvency at the time the contract was made; both of which he positively denied. He stated also, that the deed was made to him with the express purpose of being levied on by Knox’s judgment, in order that time might be obtained thereon by his taking the benefit of the valuation law; that Hunt had paid Strong four thousand dollars of the five to be paid ; and that when he and Hunt gave the obligation, he had fifty slaves, and Hunt had sufficient property to pay his debts.
    The bill was taken for confessed as to Hunt; Knox filed a demurrer .to it.
    Alfred Simpson, on the part of Taylor', testified that he levied the Knox execution on the land in controversy, and advertised it for sale; that the object of the sale to Taylor was that the Knox execution might be levied on it; that he notified Strong that he had better secure himself if not already secure, to which Strong replied that he was willing for the land to sell.
    Knox, at a subsequent term of the court, filed an answer, in which he expressed his want of knowledge as to the truth of the various allegations in the bill, of the ownership of the land, and the agreement as set up, and called for proof; he also insisted that Strong had thrust this land voluntarily in the way of his execution, and should not now be permitted to withdraw it, after he had thereby greatly jeoparded his debt.
    George G. Cossett testified, that about the first of May, 1840, Taylor was in possession of considerable property, but his solvency was doubtful at that time.
    James A. Hunt testified, that in November, 1841, Taylor, Strong and Hunt called on the witness to recollect, that if Strong obtained four thousand dollars’ worth of Fort Pickering property and one thousand dollars they would be even; at the same time the parties left with witness this paper, to be delivered up when Strong obtained the Fort Pickering property and the thousand dollars, to wit:
    
      “ This is to certify, that we will pay James M. Strong the interest of one and two years on the Fort Pickering land, or four thousand dollars.
    “Witness our hands and seals this the 12th November, 1841.
    “ Thos. Hunt. (Seal.)'
    “ W. Y. Taylok. (Seal.)”
    Thomas Hunt, in answer to this question, “Did you purchase in connection with William V. Taylor, section 1, township 2, of range 2, west, of James Mooring and Weldon Jones, trustee for James M. Strong ? If yea, state the manner in which you promised to secure payment?” Answered that he did purchase the land in connection with William Y. Taylor, and they executed their joint bond for five thousand dollars. He further proved, that he promised Strong that Glasgow should sign his name as surety to the obligation given by himself and Taylor; and the bond was not received by Strong as complete for want of Glasgow’s name. That Taylor was involved about that time, and immediately after the purchase of this land sold fifty-three of his slaves to Glasgow; that Taylor did not know that Glasgow was to sign the obligation; that Glasgow in August, 1840, promised Strong that he would sign the bond; but he died in September of that year without doing so. That the reason the land was conveyed to Taylor was, that Taylor was bound with witness for the Knox debt, and there were other judgments against witness but none against Taylor; a deed was first made to witness, but never recorded, and afterwards made to Taylor. That witness procured an obligation from John G. McLemore, for four thousand dollars’ worth of property in Fort Pickering, under an understanding with Strong, that that amount and a bond for one thousand dollars, should be taken by Strong in consideration of the five thousand dollar bond ; this obligation of four thousand dollars the witness gave to Strong; but about the 10th of November, 1841, he gave Taylor an order on Strong for the four thousand dollar bond, Taylor having refused to pay the interest for two years on it; a separation thereupon took place between them all, and Strong had retained the bond ever since ; the compromise was regarded as broken up by Taylor’s refusal to pay interest on the Fort Pickering bond, that not being the original agreement.
    The record of the judgment and proceedings in the case of Knox against Hunt and Taylor was also read in evidence; from that it appears, thaton the 12th of May, 1840, the sheriff levied a fieri facias on the land in controversy; upon which the defendant, Taylor, claimed the benefit of the valuation law. The land was appraised at f6000 ; was offered for sale 'on the first day of June, 1840, and not bringing two-thirds of its appraised value, there was no sale at that time. On the 19th of July, 1841, a venditioni exponas issued to sell this land, which was, on the 20th of September, 1841, stayed by injunction.
    On this state of pleading and proof, the vice-chancellor decreed the deed of May 6th, 1840, to be cancelled, annulled, and for naught held, and the contract in relation to said sale and purchase from said Mooring and Jones to said William V. Taylor, to be declared null and void; and the said Knox be perpetually enjoined from enforcing his judgment and execution at law against the said land, and that the title thereto be revested in Mooring and Jones, and that Hunt and Taylor should pay the costs of the suit.
    From this decree Taylor and Knox appealed.
    Lucas, Watson, and Clapp, for appellants,
    insisted,
    1. That the interest of Strong, who claimed to be the beneficial plaintiff, was not proved or shown as against the appellant, Knox. They cited Willis v. Argule’s Ex’rs, 6 Leigh, 667; ’Young v. Grundy, 6 Cranch, 51; Moore v. Anderson, 3 S. & M. 321; Sto. Eq. PI. 217, § 261; lb. 258, 259, §§ 318, 319; lb. 389, § 503; 4 Russ. (Eng.) Rep. 242; lb. 244,; lb. 225 ; 2 Sim. R. 237 ; Holloway v. Moore, 4 S. & M. 594.
    2. That the conduct of Strong had been such as to preclude him from any relief as against Knox; 1st. Because of his acquiescence in the levy of Knox’s execution. They cited 19 Johns. Ch. R. 344, 354; 6 lb. 166-168; 5 Coll. 163. 2d. Because Strong’s conduct had not been equitable and pure. Smith 
      v. Marks, 2 Rand. 449 ; Dabney v. Green, 4 Hen. & Munf. 101; Tucker’s Opinion, S. C. p. Ill; Fleming’s Opinion, S. C. pp. 112, 113; 9 Paige, 137; 13 Peters, .107; 2 Sumn. 207. On this point counsel reviewed and commented on the testimony, and insisted that the obligation itself showed the object of the parties in making the conveyance.
    3. That the sale of the land to Taylor being unconditional and absolute, the land became subject to the lien of Knox’s judgment, as soon as the title vested in Taylor; the delivery of the deed was ample and unconditional, to operate immediately, and it was valid and effectual to pass the estate. 5 Barn. & Cress. 668, 671; 12 Eng. Com. Law Rep. 351; 15 Wend. 656; 2 Wash. Ya. Rep. 58; 12 Leigh, 479; Harkins v. Forsyth, 11 Leigh, 294.
    4. That the obligation of Hunt and Taylor was not an escrow but a complete and valid deed; Moss v. Riddle, 5 Cranch, 351; Hicks et al. v. Good, 12 Leigh, 479; 15 Wend. 545, 656.
    5. That no vendor’s equitable lien existed in the complainants. lsR Because they stipulated for collateral security. 1 Mason, 190; 4 Wheat. 302. 2d. That where a vendor conveys land, he can set up no lien nor have-priority of satisfaction for the unpaid purchase-money over other creditors of the vendee; 5 Yer. 205; 3 Leigh, 597; 7 Wheat. 228; 2 Humph. 145.
   Mr. Justice Thacher

delivered the opinion of the court.

It would seem that the decree in this case must be affirmed. The objection, that the interest of Strong in the tract of land conveyed by Mooring and Jones to Taylor is not proved or shown as against Knox, is not sustained by the record. The allegation in the bill as to the title of Mooring and Jones is, that they “ held in fee to and for the use and benefit ” of Strong. It is true that neither the answer of Taylor, admitting Strong’s interest, nor the pro confesso, taken against Hunt, supplies proof as against Knox, for Knox was not such a privy of his co-defendants as would permit their evidence to affect his rights. But, the testimony of Hunt was taken after Knox had answered, in which he deposes that he purchased the tract of land in connection with Taylor from Mooring and Jones, “ trustees for James M. Strong.” The allegation in the bill as to Strong’s interest was sufficient to authorize equity interposition in his behalf, and the deposition of Thomas Hunt contained sufficient proof as against Knox, of the allegation in the bill as to Strong’s interest.

Also, it does not appear to be made out, that Mooring and Jones conveyed the land to Taylor for the purpose of delaying Knox in his effort to levy his debt of Taylor. Simpson’s evidence, he not having been a party to the contract of conveyance, is mere matter of opinion, whereas Hunt deposes that the conveyance was made to Taylor, rather than to Hunt, expressly to avoid exposing the land to levy and sale, because Hunt was understood to be in danger of such proceedings against him, from his utter insolvent condition in the opinion of Glasgow.

In regard to the implied assent of Strong to the sale under the execution of Knox, as deposed by Simpson, the sheriff, it could only avail as a defence in the event, that a sale had actually taken place, and Strong had stood quietly by or assented in terms to his paying his money or involving his credit in such a purchase. In this instance, no sale was in reality effected, and no rights in consequence accrued to Knox.

The deed of conveyance to Taylor, from Mooring and Jones, was absolute upon its face, but having been procured, upon conditions never fulfilled by the grantee, the proper relief in equity was to decree the conveyance to be annulled, and not a decree for the purchase-money to be raised by an enforcement of a vendor’s lien.

Decree affirmed.

Mr. Justice Clayton having been counsel below, gave no opinion.  