
    John G. Lewis vs. Josiah Taylor, H. B. Toomer, Maria E. Wilson, and her Trustee, O. M. Smith.
    Heard before Chancellor Desaussure, Charleston, January Term, 1837.
    The bill was filed to set up a contract for the sale of a piece of land. The land belonged to Josiah Taylor. He employed FL B. Toomer, as auctioneer, to sell it. Toomer contracted to sell it to Lewis; and preparatory to the completion of the sale, by the delivery of the titles, a bond and mortgage, to secure the purchase money, was executed by Lewis, and deposited with the broker, who gave a receipt for them, and a promise to deliver the titles when a given sum stipulated, being the cash part of the purchase, was paid. The only money paid was for the broker’s fees-for the papers. In this state the matter rested for some time. Lewis neglected to make the payment, and the papers remained in the hands of the mutual agent of buyer and seller, and after all pros, pect of completing the sale, failed, Mr. Taylor sold the premises to Oliver M. Smith, a trustee of one Wilson, for full value ,• who placed his title on record, and went into possession, having no no. tice, express or implied, of any other contract, perfect or imperfect, and claims a clear legal title.
    The chancellor was pleased to deeree “ a specific performance! of the contract,” as to Taylor and Toomer ; and with respect to the defendant, Smith, says, “ it does not seem necessary to make any decree, as he will perceive he cannot hold the land under a younger title ; he will, of course, give up the claim and the pos. session. Should he not do so, a further decree may be necessary.”
    From which decree an appeal is made, by defendant, Smith, on the following grounds:
    1. That the bill shows no equity'as between complainant and defendant, Smith, after denying notice. 2. That in fact, there is but one,title, that of Smith, which is not a younger title,” as the pretended elder one, was still-born, and never had a legal existence; and even if the power of a Court of Equity can give it vitality, still it must take date from its actual period of existence, and then Smith’s title, being first,, on record, is first in law. 3. Because the bill against Smith, must be dismissed with costs ; he stands, upara .liis legal title and possession ; and the priority of the complainant must be tried at law ; equity cannot maintain ejectment, and award a writ of possession.
    The defendants, Toomer and Taylor, appeal on the following grounds:
    l. That his honor erred in deciding that the contract was executed, and not executory. 2. Ttiat he erred in deciding that there was a mutuality in the remedies. 3. That be erred in deciding that the time was not material to the enforcement of the contract. 4. That lie erred in refusing to allow parol evideooe, to explain the receipt and bond. 5. That the decree was against law and equity.
   Chancellor D. Johnson

delivered the opinion of the court.

The defendants, Wilson and Smith, it will be observed, deny in their answers, most explicitly, any knowledge or notice of the previous contract, made by defendant, Taylor, through his agent, ta sell the lot to the complainant; nor was there any evidence in contradiction of their answers andnvhatever may be the rights of the complainants against defendants, Taylor and Toomer, the question here is, whether the defendants Wilson and Smith, are affected by them.

The deed from Taylor to Smith, unquestionably, conveyed the legal estate, and being a purchaser, for valuable consideration, without notice, he will, according to a familiar principle, be protected against the previous equities of the complainant; and as to him, the case is resolved into the question, whether the previous deed of Taylor to the complainant, delivered to Toomer, to be delivered to complainant, when he should pay $150, one fourth of the purchase money, or the memorandum of the 15th September, 1835, made by Toomer, can operate to invest the complainant with the legal estate.

That the delivery is the very essence of every deed, and that without it the legal estate could not pass, are propositions which admit of no question. The complainant’s own bill states, and it is the foundation of his complaint, that this deed was not delivered to hint, according to the terms of his agreement. The memorandum of the 15th September, 1>535, given in evidence hy the com. plainant, is conclusive, that it was not intended to be delivered until $150, part of the purchase money, should be paid ; and this was not done, nor offered to be done, until after the conveyance to Smith. The memorandum of the 15th September, 1835., doest mot purport to be a conveyance. On the contrary, it professes only to undertake to deliver the deed, on the conditions stated. It wants the seal and witness, required by the act of assembly, and indeed, all the other requisites of a deed to pass real estate, and cannot, therefore, operate as a conveyance of the real estate.

O. M. Smith aud Taylor, for motion.

JSufe, contra.

Filed 21st March, 1837.

I have, intentionally, avoided the expression of any opinion, as to the rights of the complainant against Taylor and Toomer, or either of them. If be has any, it is for a violation of the contract, to sell the lot to him, and that is the subject of an action of law to recover damages, and one over which this court does not possess jurisdiction.

The decree of the circuit court is, therefore, set aside, and reversed, and it is ordered, that the complainant’s bill be dismissed with costs.

DAVID JOHNSON,

We concur,

WILLIAM HARPER,

J. JOHNSTO^.  