
    *Sardis Burchard v. Pliny Hubbard, George F. Whitaker, and Benedict Brooks.
    A tax title is invalid when the land has been listed, forfeited, and sold, “as one hundred and twenty acres in the Whitaker reserve,” there being one thousand two hundred and eighty acres in the reserve.
    Where a person, without title, conveys by deed of warranty, and afterward receives title as trustee from the rightful owner, for the purpose of transmitting it to a bona fide purchaser, the doctrine of estoppel does not defeat the trust estate.
    This was a bill in chancery from the county of Sandusky.
    In November, 1822, a patent issued to Elizabeth Whitaker for 1,280 acres of land, being the “ Whitaker reserve,” in Sandusky county.
    On June 3, 1823, Elizabeth Whitaker conveyed the entire reserve to George F. Whitaker, in fee; and on October 10, 1823, George F. conveyed in fee 190 acres, in which was included the land here in controversy, to Isaac Whitaker.
    
      On October 12, 1823, Isaac mortgaged his tract of 190 acres to James Whitaker, to secure the payment, on August 12, 1832, of $400, with annual interest.
    The taxes being unpaid in December, 1831, part of the land was sold at a tax sale to R. Dickinson, who received a tax deed. The auditor’s deed recites a sale of- 120 acres, and purports to convey “ 140 acres of land in the Whitaker reserve,” without any other description. Shortly after bis purchase, Dickinson agreed to hold the land for the benefit of Isaac, and reconvoy to him upon reimbursement of the amount paid and expenses. But Dickinson, having some transactions by which, on settlement, he fell in debt to George E. Whitaker, transferred to George P. this tax title, by deed dated January 15, 1834, to be held upon the same terms as it had been by Dickinson.
    *In Juno, 1834, the complainant, Burchard, talked of purchasing the tract of 190 acres, and with a view to effect a sale of the property to satisfy the mortgage, and the tax incumbrance, and to secure the residue to the benefit of Isaac, James executed and deposited with his agent, Dickinson, a release of the mortgage, leaving a blank for the name of the grantee, to be filled up when an arrangement should be effected.
    In March, 1835, Burchard agreed to purchase this tract of 190 acres, of George E. Whitaker, for $800, with Dickinson’s assent, but upon condition that the sale should be approved by James and Isaac. It was approved of, with the understanding that $200 should be invested in wild lands for Isaac’s benefit. Dickinson, being a lawyer, was consulted as to the best mode of transferring the title. Ho advised that, instead of conveying directly to the complainant Burchard, Isaac should make a deed to George E., in whom it was supposed the tax title was already vested, and that George P. Whitaker should then convey to Burchard, who would thus derive a perfect and unincumbered title.
    On April 12, 1835, a deed to George P. was made by Isaac, and left in Dickinson’s hands, by whom it was retained until July, 1835, when it, together with a release of the mortgage by James, was delivered to the complainant Burchard, and they were by him, on the 14th of August, handed over for record. On the 3d of November following, George E. Whitaker executed a deed, in fee, for the land, to the complainant.
    But, in the meantime, George E. Whitaker, on July 15, 1834, had sold this same tract of land, for $700, to the defendant, Pliny Hubbard, to whom, on June 24, 1835, having received the whole purchase money, he made a deed in fee for 150 acres off the west part of the 190 acres. This deed was recorded, June 26, 1835. In 1838, Hubbard sold and conveyed to Brooks.
    *Neither Hubbard nor Brooks had any actual notice of the transactions of George F. Whitaker with the complainant, but they were informed and believed that George F. had a perfect title. The complainant had no notice of the transaction between George F. and Hubbard.
    This bill is filed by Burehard, setting forth’ his title, and praying to be quieted therein. The defendants, Hubbard and Brooks, answer, denying all notice of Burchard’s interest, and claim that they are bona fide purchasers, and have an equity prior to the complainant’s, for which they claim protection.
    C. L. Boalt, for complainant:
    Under the pleadings in this case, the defendant can not rely on being a bona fide purchaser, without notice for a full consideration. If the defendant would rely on this character to protect a disclosure, he should make his defense by 'plea, Story’s Eq. Pl. 463, 465 ; and if he answers, at all, he must answer fully every allegation that bears’upon the question of notice; and a general answer is not sufficient. Id 654.
    The tax title, which is the only one that connects George F. with the legal estate, prior to the conveyance by George F. to Hubbard, is defective, and can not be relied on for any purpose.
    There are several adjudged cases, in our reports, in point. 5 Ohio, 458; 2 Ohio, 287; 6 Ohio, 391; 10 Ohio, 556.
    The subsequent passing of the title through George F. Whitaker, will not inure to invest Hubbard with any better title than George F. then had.
    The law of estoppel could only apply between George F. and Hubbard, in a court of law. It could not be extended to the complainant. No one is bound by an estoppel who can not take advantage of it. It is mutual in its application. Here Hubbard and Burehard derived their titles from different sources. The assertion of title by George F. Whitaker was adverse to the interests of James and Isaac. They could not *stand together. Neither is the complainant’s conscience bound in equity. If the act of George F., in attempting to convey without title, could have any effect on him, it was equally a fraud on him as on Hubbard ; and how can an equity arise against him out of such a state of facts?
    1 In the course of transmitting this title to effect another object, it was passed through George F., but Hubbard was not affected by it, or misled as to George F.’s rights. The mischief which affected him was already done. Had he been injured by that act, he might have some reason to complain; but such was not the case.
    Here George F. was made use of as a mere conductor, to transmit the title to another; and as dower will not attach in favor of the wife, where the estate is passed through the husband, and a mortgage taken back to secure the purchase money, on the completing a purchase, so, here, it will not inure to vest any better estate in the grantee than George F. had.
    The complainant had the better equity in the estate, and Hubbard was chargeable with notice.
    If Hubbard had no legal estate by virtue of the tax title, he cannot rely on the plea of bona fide purchaser. If he had, he was-chargeable with notice by the record, and by the adverse possession, or both. If chargeable with notice by the record, he must be taken to be advised of all they contain; but the records do not disclose the fact that George F. held the tax title as a lien for his advances only, and if that title is valid to convey a legal estate, he would still be without notice of the latent equity. This is not the case, however, in respect to his negligence to prosecute inquiries of the person in possession. As an inquiry, in that quarter, would have led to a knowledge of all the rights of Isaac and complainant, the notice will operate commensurate with the right, both as to the trust attaching to the tax title, and also as to the outstanding recorded title. We rely, also with confidence, on our objections to the tax title; and, in either case, if notice was 'conveyed, Hubbard will, himself, stand in no better position, in respect to the rights of the complainant than if the estate had passed through ^Hubbard, instead of George F. Such being the case, as the trust had attached in favor of the complainant, from whom the consideration moved, before' the deed was executed to George F., Hubbard would be held, in equity, subject to the same remedies with George F. In order for Hubbard, being himself chargeable with notice, to set up title by virtue off ' the deed from George F., he is compelled to take the position, that George himself was a bona fide purchaser for a full consideration. The notice that affected Hubbard, at the time of his purchase and advance of consideration, takes away all the merit which he might otherwise claim, in respect to his own conduct. It is such as places him along side of George P. himself, as a participator in his attempt to commit a fraud on the complainant, or, rather, he is seeking to avail himself of an advantage as the consequence of that fraud. But the complainant’s superior equity must prevail. I can not understand how the doctrine of estoppel, as admitted in a court of law, can have any effect in a court of chancery, under circumstances like these. What equity is there, in Hubbard, to ■claim an estate that he purchased (and paid for) of a person who had no title, being chargeable with notice that the title to that •estate was outstanding in a third person, of whom the complain■ant purchased it, and to whom he paid the consideration ? The mere fact that it became convenient, afterward, in transmitting the title to the complainant, to pass it through the person of whom Hubbard purchased, can not affect the merits of the question, one way or the other.
    This view of the case is strongly fortified, and we are willing to trust the decision of the case upon it.
    We have the right of being substituted in the place of the holder of the mortgage, which was then a lien on the land, and which we have paid off.
    Here, the mortgage being a subsisting lien when Hubbard purchased, he is no worse off than he was at the date of his purchase, if we, who have paid it off, are allowed to assert it.
    It would be unjust to allow Hubbard to have the benefit of that payment, for he was chargeable with notice that it was a valid incumbrance on the land when he bought.
    *This equity is but the claim of a familiar principle in favor of the complainant.
    Peter Hitchcock, on the same side:
    In the consideration of the case I shall treat it as if the controversy was between Burchard, the complainant, and'Hubbard, one •of the defendants; for although the defendant, Brooks, has purchased of Hubbard and paid the consideration money for the land, he can not claim under his purchase any better right than was vested in his vendor. And it may be further remarked, that at the time of his purchase all the title papers now given in evidence were of record, so that he had full notice of the state of the title.
    Neither Hubbard nor Brooks have interposed the plea of bona Jide purchaser, without notice; and if they had, such plea could not, under the circumstances of the case, have availed them. Neither do they rely upon such defense in their answer.
    I take this to be an incontrovertible principle, that the purchaser of real or personal property acquires no greater interest in the property purchased than was vested in his vendor. If the vendor has no interest, the purchaser acquires none. In the case under consideration, we admit that Hubbard contracted with George F. Whitaker for the land in controversy, that he paid him for it, and received from him a deed of conveyance; but we insist that, by this purchase, he acquired no interest, either legal or equitable, in the land itself, because his vendor had no interest, or if he did acquire any interest, it was only the interest previously vested in George. By this purchase the interest of third persons could not be affected. Burehard has also paid for the land; and by this payment he acquired an equitable interest in the land, because he contracted with, and paid to, the rightful owner. Both parties have paid for the land, but there is this difference between them: Bur-chard paid to the rightful owner, Hubbard to a stranger.
    *This principle that the purchaser acquires no greater interest by his purchase than was vested in his vendee, is one which it is necessary to bear in mind in the further consideration of this case. In such further consideration I shall avoid, as much as possible, the repetition of the arguments urged by my associate counsel.
    It will be seen that Dickson, in January, 1831, conveyed to George his tax title; in June, 1834, George contracted to sell 150 acres of the land to Hubbard; in March or April, 1835, Burehard purchased, and paid to and for the use of Isaac the purchase money, the entire 190 acres; in July, of the same year, George conveyed the land in controversy to Hubbard; in August, Isaac conveyed to George, and in November, George conveyed to Burehard.
    Now the inquiry arises as to the interest which Hubbard acquired by his contract of June, 1834. He acquired an equitable claim to whatever interest George then had in the land. He certainly acquired no other equity; no equitable claim to any interest which Isaac might have. The interests of George, so far as he had any interest, and the interest of Isaac, were adverse one to the other. The only claim of George to the land was in virtue of a sale for taxes, while Isaac had an interest in fee simple, unless that, interest was defeated by the tax sale. If this sale was valid, then Hubbard acquired an equity in the land, because George had title. But if this sale was void, then George had no title, and Hubbard1 acquired no equity in it, although he may have acquired a right, of action against George upon the contract.'
    Payment having been made upon this contract, George, on June-24,1835, conveyed by deed, with covenant of warranty, the 150‘ acres of land included in the contract to Hubbard; and this deed was recorded two days after its date. By this conveyance Hubbard acquired all the legal title of George to the land, as he had, by his contract, acquired all his equitable title. As we have before seen, this legal title was nothing but the tax title. If that was. valid, then Hubbard by this conveyance became vested with a title-in fee simple to *the land; but if it was invalid, he acquired no more interest by the deed than he did by the contract, that is,, just no interest at all.
    Before this conveyance, however, to wit, in March .or April preceding, Burchard had become interested in the land by purchase, and payment of the purchase money to the rightful owner; that is, unless Isaac ha-d been divested of his ownership by the tax sale. But, it may be said, that Hubbard knew nothing of this interest of Burchard. By an examination of the record of deeds of the county, he must have known the state of the title, and that George had no other title than that acquired by the tax sale. The deeds previously executed were all of record, and he was bound to take notice of them. Besides, Burchard was in possession, by his tenant, Isaac Whitaker. True, Hubbard, in his answer, says-that George represented the person in possession to be his tenant. But he was not the person of whom to inquire; he should have inquired of the tenant himself.
    Subsequently, in order to carry into effect the contract of Bur-chard, and to vest the legal title in him, the deed of April 12,1835, was delivered to him, although made, upon its face, to George;, and on the 3d of November following, George conveyed to Bur-chard. Should any suspicion of unfairness arise from the circumstance, that this deed bears date on April 12,1835, and was not delivered until the August following; or, should it be suspected that it was actually delivered at an earlier period than we say it was, •these suspicions must be removed when the court see, as they will see upon inspection, that it was not acknowledged until the 10th of August. Before this acknowledgment it could not, under our statute, operate as a conveyance. Besides this, Dickinson, in his testimony, explains the reason why the deed was not sooner delivered. He says that the whole business would have been completed on the 12th of April, but on account of the absence of some person whose presence was necessary; and that he, having the charge of the business for ajames and Isaac, did not find time to attend to its final completion until the August following.
    How, then, stands the ease in this aspect of it? Burchard has .a legal title derived from Isaac, the rightful owner, through George. Hubbard, if he has any title, has a legal title derived from the sale for taxes. And here it must be noticed, that the titles of Isaac and Dickinson did, at no one time, center in George. They were always adverse. Before the title of Isaac was vested in George, he had parted with the title derived from Dickinson. In this state of the case, it is manifest that Burchard has a perfect legal title, unless that title is defeated by the tax sale. And this leads to the inquiry as to the validity of that sale.
    Were we to look only at the deed from the auditor, it would seem to me that nothing could pass by that deed, on account of the uncertainty of the description. The court will see that the deed recites, that Dickinson had purchased 120 acres of land in the ‘‘ Whitaker Reserve,” in township 5, range 15. This is all the description we have of the land. Now, the Whitaker reserve contains 1,280 acres of land. Which of these 1,280 acres was forfeited — which part was sold — which part was conveyed? This deed, if available at all, would authorize the purchaser to claim as well in one part as another. There is that uncertainty about it( that the deed itself must be held to be void, unless some new rule -is established.
    Further, this deed is inoperative, because it purports to convey more land than was sold. The quantity sold was, according to the recital, 120 acres; the quantity conveyed is 140 acres. If this deed shall be held to convey anything, it is impossible for me to see by what rule of construction it shall be held to convey that part, or any portion of that part of the reserve, which had been conveyed to Isaac. There is nothing in it to point to that part. The land forfeited was not listed in his name, but in the name of his mother.. The quantity listed is fifty acres less than what belonged to him j. and there is nothing in the description designating his land.
    *But if the court can get over this difficutly, there is still another, growing out of the deed from Dickinson to George. In this-deed, the land conveyed is described as being the land of Isaac, but is described as being sold to Dickinson on December 14, 1831; whereas, the land conveyed by the auditor’s deed, which we have in evidence, was sold on the 12th day of December, and the deed executed on the 15th. There is, then, no evidence, except from the deed of Dickinson himself, that the land by him conveyed to George was ever sold for taxes.
    Again, it will be found upon reference to the papers from the auditor’s office, now on file, that there is the same uncertainty in the description of the land in the duplicate and list of sales, that there is in the auditor’s deed. The only description is 150 or 140’ acres in the Whitaker reserve. There is nothing, however, to-show that this particular tract of land was ever in default for the non-payment of taxes; 140 acres was forfeited and sold in some-part of the reserve, but in what part is not shown. Under the-authority of the cases heretofore decided by this court, and referred to by my assooiate counsel, this sale must bo held to be defective, if not absolutely void.
    Such being the case, it follows that, inasmuch as the complainant has the legal title, and is in possession, he is entitled to a decree to quiet him in that possession.
    I am here, however, met by the objection that, inasmuch as-George conveyed to Burehard, with covenant of warranty, and, inasmuch as we claim under or through George, we are estopped from denying that he had title. It is a familiar principle, and one-which I am not disposed to controvert, that where one man, having no title, makes a deed of conveyance to another with covenant ”of warranty, and subsequently acquires title, this after acquired title inures to the benefit of the purchaser, and the vendor, and those claiming under him, are estopped from saying he had no title. In such case, the right or title of the vendee commences, not from the date of his deed from the vendor, for by that he took nothing, but from *the date of the acquisition of title by the vendor. This estoppel works an interest in the land, and the vendee may, without impropriety, be said to have a title by estoppel. The object of this rule, is to do justice, and prevent multiplicity of suits. But it must be observed, that the principle or rule applies only in cases where the grantor has no title or interest in the thing granted, so that there is nothing upon which the deed can operate. If, however, there is any interest in the grantor, although defective, or although less than is granted, the deed will operate to convey this interest, and can not operate as an estoppel. Thus, if tenant for life convey in fee simple, with covenant of warranty, the estate for life passes. But if the grantor subsequently acquire the reversionary interest, this will not inure to the benefit of his vendee.
    In speaking upon this subject, Chancellor Kent says, 4 Kent’s Com. 98: “If any interest, however small, passes by a deed, it creates no estoppel. The deed which creates an estoppel to the party undertaking to convey or demise real estate, when he has nothing in the estate at the time of conveyance, passes an interest or title to the grantee or his assignee, by way of estoppel, from the moment the estate comes to the grantor.” So it is said, in Co. Lit. 45, a, “wheresoever any interest passeth from the party, there can be no estoppel against him; and so it was adjudged.” Again Co. Lit. 47, b, it is said: “A., lessee for the life of B., makes a lease for years by deed indented, and after, purchases the reversion in fee. B. dieth. A. shall avoid his own lease ; for he may confess and avoid the lease which took effect, in point of interest, and determined by the death of B. But if A. had nothing in the land, and made a lease for years, by deed indented, and! after purchase the land, the lessor is as well concluded, as the lessee, to say that the lessor had nothing in the land.” This doctrine is fully sustained in 3 Bac. Abr., tit. Leases, O.
    Let us apply this principle to the case under consideration. If, at the time George F. conveyed to Hubbard, he had no interest, but afterward acquired a title, this would inure to the *benefit of Hubbard ; and George, and those claiming under him, would be estopped to say he had nothing in the land, at the time of conveyance. As the deed would operate in no other way, it must operate by way of estoppel. But if George had any interest in the land, no matter how small, that interest would pass by the deed, and there could be no estoppel, He had an interest, such as it was, by the tax title, and this passed, although defective in form and substance; still, there was an interest.
    
      If I am right in this position, there is an end to the case. But if the court should be of opinion that this tax title was void, and that the deed from Dickinson, of January, 1834, conveyed no interest to George, still I insist that the equity of the case is with the complainant, and he is .entitled to a decree.
    If the conveyance of Dickinson vested in George'no interest in the land, then, in July, 1834, when he contracted to sell to Hubbard, he had no interest, and Hubbard acquired none. Neither did the conveyance of George to Hubbard, of June 24, 1835, vest any interest in Hubbard. Until and after this time the title, in fee simple, was in Isaac, subject to the mortgage to James. Hubbard, by his contract, acquired no equity in the land; by his deed he acquired no legal interest in it. It must be so unless the court should hold that a stranger, by contracting to sell my land, confers upon his vendee an equity in that land, or, by conveying it, vests in the vendee a legal title.
    Previous to the date of the deed of George to Hubbard, Burchard had acquired a perfect equity in the land, by purchasing the same, and paying to and for the use of the rightful owner the purchase money. At any moment he could, by a proceeding in chancery, have compelled a conveyance from Isaac. In fact, Isaac was his trustee, holding for him the naked, legal title. This, then, was the situation of the respective parties. The legal title was in Isaac, the equity in Burchard, and neither George nor Hubbard had any claim, either in law or equity, unless derived from the sale for taxes.
    *Thus the matter remained until August 10, 1835, when the deed of the 12th of April, of the same year, was perfected by acknowledgment and delivery.
    I admit, in the view now taken of the case, if this deed had been delivered to George with a view of vesting in him the ownership of the land, or if the design had been to vest the title in fee simple absolutely and unconditionally in him, or if, by the delivery of this deed, he bad become the owner of the property, both in law and equity, then the title by him acquired would have inured to the benefit of Hubbard; and George, and those claiming under him, would be estopped to say he had no title on the 24^ of June, when he conveyed to Hubbard. Hubbard’s title, however, would not have commenced with the date of his deed, but at the time George acquired title. The title would, in fact, have been cast upon Hubbard by the operation of law. But it would he absurd to suppose that any greater interest could vest in Hub-hard, by this estoppel, than was vested in George by the deed of Isaac.
    What, then, was this interest? We have already seen- that Isaac had nothing in the land but the naked legal title, which he held in trust for Burchard, in whom was the equity. This naked legal interest, then, was all he could convey, and all George could take by the conveyance, he knowing, as the case shows he did •know, all the facts. And by this conveyance he became, as his grantor had been before, the trustee of Burchard, holding the legal title for him. The fact that the deed was absolute upon its face could make no difference as to him. The testimony of Dickinson shows conclusively that the conveyance was made to George, not to vest the property in him, but for the purpose of transmitting the title through him to Burchard. George had paid nothing for the land, and had no claim to it, derived from Isaac. Upon this subject there can be no doubt, if Dickinson tells the truth. It'was the intention that George should take the naked •legal title alone, in trust for Burchard, who had the equity. Such was the understanding of all concerned. This statement of Dickinson is corroborated by the fact that this deed never was, in truth, delivered *to George, but was delivered to Burchard, the equitable owner of .the land. Under this state of facts, had -the title remained in George, after the delivery of this deed, and had he refused to convey to Burchard, a court of equity would have compelled him, on the ground that he was a mere trustee. George, then, did not acquire such a title as would inure to the benefit of Hubbard, and Burchard can not be estopped from showing the real nature of the whole transaction. If this title could .inure at all to Hubbard, it would only inure to him as it existed in George, and he must hold, as George did, tho mere naked legal titleñn trust for Burchard.
    I admit that if, while the title was thus vested in George, Hub-hard bad taken a conveyance from him, without notice, either actual or constructive, of Burchard’s equity, he would have held the land. In such state of things, however-, the question would arise, whether the actual possession of Burchard, by his tenant, was noi! sufficient notice. But such is not the state of the case. The conveyance of George, to Hubbard, was before George acquired even this naked legal title, and before he had any interest; therefore-the doctrine of notice has no application. Situated as this case is,, to hold that a title inured to Hubbard in consequence of the conveyance of Isaac to George, and that Burchard was estopped,, would be to apply a principle, which was intended for the furtherance of justice, to defeat justice.
    The mode of transmitting title in this case was, it may be admitted, somewhat singular, but it was the mode advised by Dickinson, a lawyer by profession, acting as the agent of Isaac, and' the mutual friend of the parties. It was probably adopted in consequence of the circumstance that the tax title had before been conveyed by Dickinson to George, with an understanding that he-should be indemnified when the property should be sold, and it does not seem to have been known to any of the parties that George had conveyed to Hubbard, except to George himself.
    Should it be objected that, inasmuch as this deed was absolute upon its face, we have no right, under the statute of frauds,, *to introduce parol evidence to prove the trust, I reply that it is a clear case of resulting trust, which may always be explained' by parol, the statute notwithstanding. Burchard actually paid the money for the land, and paid it to and for the use of the rightful owner, and in consequence of this payment the conveyance-was made, not to Burchard, but to George; and in consequence of the previous payment of the money a trust resulted. It does-not differ from the common case of the payment of money for land,, by one individual who takes the deed in the name of another, in which case there is always a resulting trust.
    Under all these circumstances it seems to meto be clear that the complainant has a perfect equity in this land, while the defendant has no equity at all. If he has any interest at all, it is th© mere naked legal title which he holds as the trustee of Burchard. He has no equity in the land, because, although he has paid a price for it, that price was paid to a stranger, not to the rightful owner. And if the court should hold that the title was in the defendants, or either of them, Isaac Whitaker is entirely cheated out of his land. For, upon such holding, it follows that the consideration for which .Burchard paid- his money, will have failed, and th© money paid may be recovered back.
    It may be thought that it will be equally hard for Hubbard' should it be held that he had no title. It is true he also has paid his money, but he paid it with his eyes open. The state of the-title appeared upon the records, and these records showed that his-vendor had no other than the tax title. This he acquired, and nothing more. No other title, not even the naked legal title, would ever have been conveyed to Isaac, but for the payment made by Burchard. Hubbard, if he loses anything, loses it, not for any default, deception, or misconduct of the complainant, but on account of his own negligence. Besides, it must be remembered that he has received back $300 of the purchase money, so that, at the-worst, he is but $400 out of pocket, which he may recover in an action upon the covenants of his deed, ^against George, the man in whom he trusted and confided. He can be placed in no-worse situation than he would have been had Burchard not purchased the land, for, in that event, he must have rested entirely upon his tax title.
    The defendant, Brooks, purchased in 1838, long after all the-deeds of conveyance, prior in time to his, had been -placed on record. Of course he must be held to have had notice of the-exact state of the title, and can be in no better situation than Hubbard.
    Upon the whole case, it seems to me that the plaintiff is entitled to a decree, both upon the ground that he has the legal title, and is in possession, and upon the ground that he alone, of all the parties, has any equity in the land.
    The reporter was furnished with no argument for the defendants.
   Birchard, J.

The first question in this case grows out of a tax sale, and the decision of it will settle the merits of this controversy.

A tax deed was the only title held by George F. Whitaker when he conveyed to Hubbard, and the only interest in the land, which Hubbard acquired from him, was the tax title. Unless it was valid, no legal estate was conveyed to Hubbard, and the respondents have no rights except such as flow from the covenants-contained in George E. Whitaker’s deed. Whether these covenants operate to their benefit, so as to secure a title by reason of the deed subsequently made to George F. Whitaker, will be considered hereafter. The tax deed recites a sale of “ 120 acres in the Whitaker reserve, in township five, range fifteen.” The whole reserve contained 1,280 acres. The deed does not inform us what part of the tract of 1,280 acres was delinquent, forfeited, or sold. And, if it was available, it would entitle the grantee to claim as well one portion of the tract as any other. It also recites a sale

*of 120 acres, and purports to convey 140 acres.

The lands were listed in the name of Elizabeth Whitaker. The portion of the tract in question had been previously conveyed to Isaac Whitaker. How do we know that it was Isaac’s portion of the tract, and not the part belonging to Elizabeth, which was sold? Certainly not from anything connected with the tax sale. The defects run through the proceedings in the auditors’s office, and the tax title may be laid out of view, so far as its validity is in question. The cases cited by complainant, in 2 Ohio, 287; 5 Ohio, 458; 6 Ohio, 391, and 10 Ohio, 556, are in point.

Whether the subsequent passing of the legal title, through George F. Whitaker, will inure to the benefit of Hubbard, by reason of the covenants contained in Whitaker’s deed, is the material and remaining question in the case. It will be observed that a mere naked legal title was all that ever passed through him. Burchard was the purchaser, and the title was conveyed to George F. Whitaker, as a matter of. convenience. Taking the title, then, as between the two, the law constituted George F. a mere trustee of the naked legal title. A trust resulted to Burchard, whose money was paid to the bona fide owner. Had George F. Whitaker acquired for himself the legal and equitable title, he would, by reason of the warranty contained in his deed, have been es-topped at law from denying the title of Hubbard, and, in chancery, his conveyance to Hubbard would have been held binding on his conscience.

We are asked to extend and apply this rule, as against the complainant. To do so, in the state of facts here existing, would be pushing it beyond reason. The equity of the complainant is equal to that of the respondents. He had no notice of their rights; his purchase did the respondents no harm; it did not mislead them. The deed, in fact, was not delivered to George F. Whitaker, but went into the hands of Dickinson, the agent and attorney of the complainant, who received it, and delivered it to the complainant, by whom it was put on record. If the doctrine of estoppel could apply, it would vest *no better title in Hubbard than George E. Whitaker himself acquired, that is, a trust-, estate.

In equity, he who is prior in time, other things being equal, hath the better right. Tried by this rule, complainant has the better equity in the lands. He purchased of the rightful owner, and paid his money. Hubbard bought of a stranger to the title. His payments were completed on June 24, 1835, at which time he took his deed from a stranger, who had nothing but a void tax title. This created no equity to the lands then owned by Isaac Whitaker. Before this time, complainant had become interested in the land by purchase, and payment of the money to Isaac, the real owner.

' True, the deed from Isaac to George E. Whitaker bears date April 12, 1835, but it was not delivered until the August following. The acknowledgment bears date the 10th of August, and Hubbard, in his answer, says he had no knowledge of it. Hubbard’s equity in the land, if he have any, can only date from the time George E. Whitaker received a legal title. It commenced with the delivery of Isaac’s deed to George E. Whitaker ; not with the delivery of George’s deed to Hubbard. Before this, Burchard had acquired an equity which chancery would have enforced as against Isaac, the real owner. And it would be strange, if Isaac’s subsequent deed, given without consideration on the part of George E., could, by operation of law, vest a title that would defeat him.

Is it doubted, if George E. had refused to convey, under these circumstances, that equity would have compelled him? He having made such conveyance, it must be held operative, and Burchard’s equity being prior in time, his title should be quieted.

Decree for complainant.  