
    A. White vs. Bryant Kavanagh.
    K. purchased laud, paid part of the purchase-money, and gave Ms note for the balance, -with C. as surety. The conveyance was made to C. who on the same day signed a paper promising that, when relieved from his liability as surety, he would make such conveyance of the land as K. should direct. K. afterwards paid the note, and, by Ms direction, C. thereupon executed a second paper, declaring that he held the land as trustee for the sole and separate use of the wife of K. for life, and after her death to the use of K. for life, and after the death of the survivor, to the use of the children of K.: Held, that K. had, neither before nor after the second paper was executed, such present interest in the land, during the lifetime of Ms wife, as could be levied on and sold by the sheriff under a fi. fa. 
      
    
    Doubted whether the sheriff could levy on and sell K.’s future interest in the land under the second paper.
    
      Under a fi. fa., a sheriff'Can levy on and sell land only where the debtor has a legal estate, or such a trust as is contemplated by the 10th section of the statute of frauds, 
    
    A use can result only to the party who makes the conveyance — not to a third person.
    The 10th section of the statute of frauds contemplates only a case where the. trust is a clear and simple one for the benefit of the debtor.
    A resulting trust is not the subject of levy and sale by the sheriff under a fi-fa.
    
    BEFORE WHITNER, J., AT SUMTER, FALL TERM, 1854.
    To a full and proper understanding of tbis. case, it is only necessary to add, to the clear statement contained in the opinion delivered in the Court of Errors, that the judgment against Kavanagh in favor of Hendrix, was founded upon an old judgment signed 10th March, 1836.
    The case was argued in the Law Court of Appeals, in December, 1854, and that Court ordered it to the Court of Errors, where it was how heard.
    
      Richardson, for appellant.
    The general question, which the law Court of Appeals hás sent up to this Court, will be considered, in the argument, under three heads:
    1. Whether Kavanagh took a legal estate in the land prior to the execution of the deed of the 11th September, 1851; and, if so, then, whether the execution of that deed did not so effectually annihilate and destroy his estate as to defeat the lien of the judgment.
    2. If he took only an equitable interest, then, whether such an interest in land, can, in any case, be levied upon and sold under a fi. fa. at law.
    3. If the 10th section of the Statute of Frauds does authorize such levy and sale, then whether Kavanagh had such an interest as is within that section of the statute, before the deed of the 11th September, 1851, was executed; and, if so, then, whether the execution of that deed did not destroy his interest, and defeat the creditor’s right to have the land levied on and sold.
    1. There are but two modes by which Kavanagh could be held to have taken a legal estate in the land prior to the execution of the deed of the 11th September, 1851; (1) As a resulthig use; and (2) under the paper executed by Coghlan, of date July 11th, 1850.
    That Kavanagh did not take a resulting use is clear ; for all the authorities agree that a use cannot result except to the grantor or owner of the land; (Crabb on Real Prop., § 1641, et seq ; 1 Cruise Tit. 11 ch. 4 § 39; 4 Kent, 299; 1 Preston on Estates, 182;) and Kavanagh never was the grantor or owner. A use might have resulted to Spain or Coghlan, but not to Kavanagh. When Kavanagh paid the purchase money, a trust resulted to him, (4 Kent, 305,) hut not a use.
    Then, did Kavanagh take a legal estate under the deed executed by Coghlan, on the 11th July, 1850 ? If that instrument can be held to operate as a conveyance, it can only be as a declaration of uses; for it is certainly not a common law conveyance, nor is it a bargain and sale, a release under our statute, a covenant to stand seised to uses, or an appointment under a power. As a declaration of uses, then, it must stand or fall.
    In considering the construction and effect of that instrument, two things should be borne in mind; (1) That the Court is called upon to construe and give effect to a deed, and not to a will — to an instrument operating inter vivos, and not to a devise, where the party may be supposed to be inops eonsilii; and that the rules of construction in relation to deeds and wills, are widely different. (2) That whatever may have been the rule before the year 1672, when the Statute of Frauds was enacted, it is clear that since that statute all declarations of uses must be in writing; (Bac. Abr. Uses and Trusts (E.); Burton on Real Prop. m. p. 60, pi. 168,) and of course the writing is subject to the general rule, that it can neither be added to, varied, or explained by parol. Bearing these two things in mind, and assuming for the purposes of the argument, that the deed signed by Coghlan on the 11th July, 1850, was intended to operate as a declaration of uses, he would now proceed to show by a few plain and well-settled elementary principles, that that deed conveyed no legal estate whatever to Kavanagh. The idea entertained upon the opposite side is presumed to be this: That when Kavanagh relieved Coghlan of his liability on the note for one hundred and fifty dollars, by payment, eo instanti and per vim statuti, the legal estate in fee became vested in Kavanagh. If he, Kavanagh, took any estate at all, it is conceded he must have taken an absolute one; for it would be absurd to hold, that be took either an estate for life or for years. It is a rule of construction, applicable as well to common law conveyances, as to conveyances operating under the Statute of Uses, that a party claiming an estate under a deed, must show by the terms of the deed itself, what that estate is ; and he cannot claim an estate in fee simple, unless the limitation be to him and Ms heirs. ‘' To the creation or transfer of an estate in fee by deed, it is requisite that the land, or other subject of property should be limited, as to individuals, to the individual and his heirs.” 2 Preston on Estates, 1. “ No substituted words of perpetuity will, except in special cases, be allowed to suppy their place. Therefore, a grant in a deed to a man and his assigns, or to him and his assigns forever; or in fee simple, by that term, &c., will not, by reason of the omission of a limitation to tbe heirs, pass more than a life estate.” 2 Preston on Est., 4, 5. And the same rule, says Mr. Preston, p„ 66, applies to convey anees under the statute of uses. In 2 Shep. Touch. 520, the rule is thus laid down: “ The.declaration of the uses must be certain, and that especially in three things; in the person to whom, in the lands, &c., of which, and in the estates by which the uses are declared; and if there want certainty in either of these particulars, the declaration is not good.” In Burton on Real Prop., m. p. 58, pi. 164, (Law Lib., vol. 23,) it is said: “ It remains here to say something of the manner in which uses are declared. As the use now carries with it the legal estate, the word heirs is necessary to constitute a fee simple; and in general the same words must be used to ascertain the quantity, (i. é. the extent and duration) of the estate, as at common law.” Tested by these rules, what estate is conveyed to Kavanagh by the terms of the deed signed by Coghlan on the 11th July, 1850 ? Coghlan undertakes “ to make such deed of conveyance of the said lot of land, as the said Bryant Kavanagh may direct by parol, deed, or will.” These words convey no estate to Kavanagh, and certainly they do not convey to him an estate in fee simple. They merely give him authority to declare to whom the conveyance shall be made. Authorities may be found, (perhaps they amount to nothing more than dicta,) that similar words in a devise would confer a legal estate in fee simple ; but it is too clear that those authorities have no application where the question is upon the construction of a deed. In 1 Sug. Pow. 119, § 8, almost the very case before the Court is put. “ It is said,” says that learned and cautious writer, “ that where an estate is given absolutely, without any prior limited interest, to such uses as a person shall appoint, it would be an estate in fee. But this doctrine,” he adds, “refers only to a devise, for in a conveyance such a limitation would merely confer a power on the party, and not give him an estate in fee.” This authority, it is submitted, if it be good law, is conclusive. In the case put by Sir Edward Sugden, the party has the uncontrolled and absolute power of appointment, and might make the appointment to himself; and yet he takes a mere power and no estate. In the case before the Court, Kavanagh has no power ofiappointment; he has only authority to direct to whom the appointment shall be made. Assuming, therefore, that the deed executed by Coghlan on the 11th July, 1850, was intended to operate as a declaration of uses, it signally failed of its purpose, for want of apt words declaring the estate which Kavanagh should take.
    But there is another fatal objection to that instrument as a declaration of uses. The case of Qraig vs. Pinson, Chev. 272, seems to have been intended to hold, that under our Act of 1795, all conveyances of land are required to have two witnesses. Coghlan’s deed of the 11th July, 1850, has but one. If, therefore, that instrument had purported to convey the land to Kavanagh by words the most formal and technical, it would have failed of its purpose, because of the want of the legal number of subscribing witnesses. Surely this Court is not going to hold that two witnesses are required to the formal and common conveyances of the country — to releases, feoffments, bargains and sale, covenants to stand seised to uses, and even to mortgages, which create but a lien, and at the same time hold, that so informal an instrument as this is, can pass the legal estate, with or without witnesses.
    It is now submitted that the paper supposed to be a declaration of uses is no conveyance at all, — was not intended to operate as such, — and is nothing more than a covenant or agreement; for breach of which, at law an action of covenant would lie, or in equity, a bill to enforce the specific execution. This is the plain common sense view of that instrument; and with as much propriety could a bond or note to make title upon payment of the purchase money, be held to operate as a bargain and sale upon the money being paid, as this instrument be held to operate as a declaration of uses. The law upon this subject is thus laid down by Crabb, vol. 2, m. p, 468, § 1638: “ The words of the statute upon this subject are bargain, sale, feoffment, fine, covenant, &c. There must, however, in all cases, be either a conveyance operating by way -.of transmutation of possession, or a contract or covenant operating as a bargain and sale, or a covenant to stand seised to uses. Mere contracts or agreements referring to actual conveyances do not raise uses at law under the statute; so, where the covenant is merely executory, for in that case the action of covenant is -the proper remedy ; and it is the same in equity.”
    If after Kavanagh had satisfied the note to Spain, Coghlan had refused to execute such conveyance as Kavanagh had directed, what was the remedy ? an action of covenant at law, or a bill in equity to compel him to execute the conveyance, is the answer.
    Let us now suppose that Kavanagh took a legal estate before the deed of the, 11th September, 1851, (which has two subscribing witnesses,) was executed by Coghlan. The execution of that deed, it is now submitted, so completely destroyed Kavanagh’s previous interest, as to destroy the lien of the judgment upon that interest. If the deed of the 11th September, 1851, had been a mere transfer of Kavanagh’s estate to the trusts created by that deed, it is clear that the lien of the judgment would have followed the estate, and attached upon those trusts. But such is not the case here: no estate ever vested in Kavanagh, passed to the cestui que trusts under that deed. They derive their interest directly and immediately from Coghlan, and not from or through Kavanagh. If an estate be conveyed to A. and his heirs, to the use of B. and his heirs, until C. return from California, and then to C. and his heirs, upon C.’s return from California, ipso facto and per vim statuti, all estate which had ever been vested in B. falls to the ground, together with all liens and incumbrances created by B. upon it — the legal estate, by the magical operation of the Statute of Uses, returns to A., the trustee, and through him a new estate in fee passes to C., discharged, of course, of all liens and incumbrances whatever. Snob is tbe doctrine of all tbe elementary writers, and they all concur in bolding that exactly tbe same thing takes place when tbe new uses spring into existence under the execution of a power of appointment. For instance, an estate is conveyed to A. and bis heirs, to such uses as B. should by deed appoint, and in default of appointment to B. and his heirs. Now B. has an estate in fee, coupled with a power of appointment. If upon B.’s estate in fee liens and incumbrances should attach, and B. should afterwards execute the power of appointment, it seems clear, from the authorities, that he not only annihilates his own estate in fee, but destroys all the liens and incumbrances which he himself had created upon it. This results from the rule that when a power is executed, the deed containing the execution of the power relates back to. and is read as part of the original instrument. , The case of Roach vs. Wadham, 6 East, 289, is an instructive ease on this point. That case may be briefly stated thus: an estate was conveyed to a trustee in fee to such uses as A. should by deed appoint, and in default of appointment to A. in fee. There was a fee farm rent reserved in the conveyance to the trustee, and A. covenanted to pay it; and this was'held to be a covenant running with the land. The original deed, therefore, gave A. an estate in fee, encumbered it with the rent, and also gave A. a power of appointment. A. afterwards executed the power of appointment; and it was held that the appointee took the estate freed and discharged of the incumbrance. It was admitted that it would have been different, if A., instead of executing the power of appointment, had simply conveyed his estate to a purchaser. (4 Kent, 33T-8). Ray vs. Pung, 5 B. & Aid. 561, (7 Eng. C. L. R. 193,) also illustrates the power of the statute in such cases. There lands were conveyed to A. to such uses as B. should by deed appoint, and in default of, and until appointment, to the use of B. in fee. B. therefore had an estate in fee,- and being a married mac, the incumbrance of his wife’s right of dower attached upon that estate'. He
    
      also bad a power of appointment. He afterwards executed tbe power of appointment, and it was held, that the appointee took the estate divested of the incumbrance of dower. But the case of Doe vs. Jones, 21 Eng. 0. L. R. 113, decides the very question before the Court. There A. B. had the use for life, with a power of appointment. Judgment had been obtained against him, but before elegit sued out he executed the power of appointment. Held, that the execution of the power defeated the creditor’s lien. These principles and authorities, it is submitted, show that when Coghlan, under the power reserved in his deed of the 11th July, 1850, executed the deed of the 11th September, 1851, the estate in Kavanagh, if he had any, disappeared, and new estates, not derived from or coming through Kavanagh, but growing directly out of Coghlan’s seisin, sprung into existence, and that these new estates are not subject to any lien or incumbrance to which Kavanagh’s estate was subject.
    2. It will now be assumed, that Kavanagh took no legal estate, but only an equitable interest of some sort; and the next question in order, is the general'one, whether the interest of a cestui que trust in lands is, under the 10th section of the statute of frauds, subject to levy and sale under afi.fa. at law. In State vs. Laval, 4 McC. 340, Judge Nott discusses the question, whether an equity of redemption at common law can be sold under a fi. fa., and he uses the following broad expression: “ a fi. fa. can operate only on a legal estate.” The truth of that dictum, in its widest and broadest sense, it is my purpose now to maintain. Before the year 1289, when the Statute of Westminster 2, was passed, lands were only subject to what is known at the common law as the writ of levari facias; and this writ only authorised the sheriff to seize the present profits of the land, and deliver them to the plaintiff in execution, in satisfaction of his debt. By the Statute of Westminster 2, the writ of elegit was given to the plaintiff. This writ authorised tbe sheriff, through the agency of commissioners, to allot one moiety of the land to the plaintiff in execution, who thus became tenant in elegit, and entitled to hold that moiety only until out of the profits his debt was satisfied. Watson on Sheriff, ch. 11, p. 206, (Law Lib.); 3 Bl. Com., ch. 26, p. 417, et seep So stood the law in relation to legal estates (trust estates being subject to neither writ) down to the year 1672, when the statute of frauds was enacted. By the 3 0th section of that statute the interests of cestui que trusts were, in certain cases (not necessary to be now stated) made subject to execution at law. The question now is, what did the statute mean, when it subjected' trust estates to execution ? Did it mean that they should be subject to levy and sale under a fi. fa.? Surely not. It meant that they should be subject to the executions then known to the law, by which the profits of legal estates in lands could be reached. They, trust estates, became subject to the elegit, or levari facias, but not to thejfi.fa. Watson on Sheriff, ch. 11; 3 Bl. Com., ch. 26. The argument it would seem might rest here; for how a statute, which meant when passed, that only the present profits, or the profits of a moiety of the land, could be taken in satisfaction of the debt, can now be held to mean that the fee simple estate in the whole land can be seized and sold by the sheriff, it is difficult to understand. A statute cannot mean one thing to-day and another to-morrow. It means throughout all time to come exactly what it meant the day it was enacted. It may be modified, repealed, or altered, by subsequent legislation; but no subsequent legislation, no change of circumstances, can alter its meaning. But it is not proposed to rest the argument here. In the-year 1712, the statute of frauds, together with other British statutes, and the great body of the common law, was adopted in South Carolina. It would seem that the Statute of Westminster 2, which gave the writ of elegit, was not expressly made of force by the Act of 1712; but there can be but little question that the writ itself was used in this State, it being considered as belonging to tbe common law. At any rate the writ of levan facias came over with the common law; and it is clear that in lYl2 there was no law which authorised the sheriff to levy and sell lands ' under a fi. fa. When, therefore, the provincial Legislature of this State adopted the statute of frauds, it, the statute, meant with us no more than it meant in England. It may have meant less, i. e., that the lands should only be subject to the levari facias. It clearly did not mean that they should be subject to levy and sale under a fi. fa. This brings us down to the year 1732, when the Statute of George II. (2 Stat. 570), was passed. That statute subjected “the houses, lands, negroes, and other hereditaments and real estates” of the debtor to levy and sale under a fi. fa. D’ TJrphey vs. Neilson, 4 McC. 129. But that statute has never been held to apply to equitable estates. Indeed the contrary may be said to have been more than once expressly ruled. The statute, it will be observed, uses the word “ negroes,” as well as “ houses, lands,” &c. Now if the word “ lands” can be held to embrace an equitable interest in lands, surely the word “ negroes” must embrace an equitable interest in negroes; and yet it is well settled, that the interest of a cestui que trust in negroes, is not subject to levy and sale. Brown vs. Wood, 6 Rich. Eq. 167; Nice ads. Burnett, Sp. Eq. 585. An argument may be drawn from the 15th sect, of the statute of frauds, which seems strongly to support the position taken, that the words of the Statute of George II. do not embrace equitable interests. That section gives the judgment a lien upon the “lands, tenements and hereditaments” of the defendant; but these words hare never been held to embrace equitable interests. Such interests may be alienated after judgment signed and before execution sued out. 1 Cruise, tit. XIY., sect. 71, 72; Blunt vs. Goles, Comyn’s R. 226. If the words “lands, tenements and hereditaments” in the statute of frauds do not embrace equitable interests, so as to give the judgment a lien upon such interests, can it be held with consistency that the words “ houses, lands, and other hereditaments and real estates,” inserted in our fi. fa., in virtue of the provision of the Statute of George II., authorise the sheriff to levy and sell such interests?
    3. This brings the argument down to the third general head, which will be disposed of very briefly. It is submitted, that before the execution of the deed of the 11th September, 1851, Kavanagh had the following interests and no more. 1. Because he paid the purchase-money, he had a resulting trust; and 2, he had the right under the agreement, signed by Coghlan, of the 11th July, 1850, to direct to whom the conveyance should be made. Is either of such interests such a trust as is contemplated by the 10th section of the statute of frauds ? It has been repeatedly held in this State, that a resulting trust is not subject to levy and sale under a fi. fa. Harrison vs. Hollis, 2 N. & McC. 578; Baushett vs. HolsonbaoJe, 2 Rich. 624; Thompson vs. Peahe, 7 Rich. 373. Then is a mere authority to direct to whom the conveyance shall be made, an interest which can be seized and sold by the sheriff? Is it anything more than a mere chose in action ? It has been already shown from 1 Sug. on Pow. 119, sect. 8, that such a right is at most a mere power and not an estate; and from 2 Crabb, sect. 1638, that Coghlah’s paper, dated July 11th, 1850, contains, in fact, nothing but a covenant. Can such a power, or such a covenant, be seized and sold by the sheriff?
    The statute of frauds has been held to apply only to “ clear and simple trusts for the benefit of the debtor.” Doe vs. G-reenhill, 6 Eng. C. L. R. 566. “ The first and natural division of trusts,” says Mr. Lewin, p. 21, “ is into simple and special. A simple trust corresponds with the ancient use, and is where property is simply vested in one person upon trust for another.” In the case now before the Court, the trust belongs to the class which is known as executory trusts, and is not a “ clear and simple trust.” “ A trust is executory, when it is to be perfected at a future period by a conveyance or settlement, as in tbe case of a conveyance to B., in trust, to convey to 0.” 4 Kent, 304-5. “Trusts executory are peculiar to marriage articles, and those instruments, whether deeds or wills, in which by the express provisions of the instrument, the trustees are to convey, settle, or assure, the lands on which the instrument is to operate, &c.; thereby showing that the parties have a further conveyance in their prospect and contemplation.” 1 Preston on Est. 387-8. The trust, or rather covenant here, is to make such conveyance as Kavanagh shall direct. This is an executory, and not a clear and simple trust for the benefit of Kavanagh.
    But again. We have seen that the judgment does not bind the estate of the cestui que trust; and that if the trustee convey the land, by the direction of the cestui que trust, after judgment entered and before execution sued out, the land is not subject to the execution. Sunt vs. doles, Oomyn’s R. 226. In this case the execution under which the land was levied on and sold, was sued out on the 30th April, 1853, near two years after'Coghlan had executed the conveyance by the direction of Kavanagh.
    Upon the whole, it seems clear that the creditor’s right must rest upon the deed executed by Coghlan on the 11th September, 1851. That deed gives to Mrs. Kavanagh a sole and separate estate during her natural life. It may be that the purchaser at sheriff’s sale acquired Kavanagh’s future interest for life under that deed. That is very questionable. But even if it be so, the purchaser at sheriff’s sale has no present right of action. He must wait until Mrs. K.’s death; and then if Kavanagh should survive her, he will be entitled to the pos- ■ session during Kavanagh’s lifetime.
    
      Moses, contra,
    cited, Ohudleigh’s case, 1 Co. 121, b.; 2 Stat. 466, 525; 1 Preston, 149; 1 Cruise, 277; Willett vs. Sandford, 1 Yes. Sr. 186; 1 Cruise, 270; P. L. 250; Bogert vs. Perry, 17 Johns. R. 354; Jackson vs. Scott, 18 Johns. R. 94; Jackson vs. Parker, 9 Cowen, 81; Jackson vs. Walker et al., 4 Wend. 462; Bogert vs. Perry, 1 Johns. Ch. 66; Armstrong vs. Peirse et al., 8 Bur. 1901; Bristow vs. Pegge, 1 T. R. 768, note; Doe vs. G-reenkill, 6 Eng. C. L. R. 666; Dawson vs. Dawson, Rice. Eq. 243; 2 Story, 439, et seq.; Eearne on Rem., 1 Am. ed. 351 et seq.; 2 Story, § 1201.
    
      Bellinger, in reply.
    
      
       Other questions were made in the Circuit Court and Law Court of Appeals, which do not appear in any opinion. The plaintiff contended, 1. That the transaction between Coghlan and Kavanagh was fraudulent as against the creditors of Kavanagh; that the deed from Spain to Coghlan might, therefore, be treated as void, and so treating it, Coghlan had shown no title, and the plaintiff might rely upon the estoppel as against Kavanagh: and 2, that Coghlan had no right to come in and defend the action under the rule of Court. These positions were, it is presumed, overruled by the Law Court of Appeals.
    
    
      
       If the estate of the cestui que trust is, since the statute of Geo. II., subject to levy and sale under &fi.fa., can any greater interest be levied on and sold than is subject to the writ of elegit according to the English law ? It.
    
   The opinion of the Court was delivered by

Glover, J.

This was an action of trespass to try titles to a lot of land in Sumterville. Under the seventy-second rule of Court, (Miller’s Com. 44,) Thomas J. Coghlan, claiming to be the real owner, was permitted to enter himself on the proceedings as the defendant in the suit.

The plaintiff claimed under a conveyance from the sheriff to him which recited, that the land had been levied upon and sold as the property of Bryant Kavanagh, by virtue of an execution in favor of J. Hendrix. The judgment was signed the 30th of April, 1853, and the execution was entered in the sheriff’s office on the same day.

Eor the defence it appeared, that Bryant Kavanagh had agreed to purchase the land from A. C. Spain for three hundred and fifty-one dollars; that he paid two hundred and one dollars and gave a promissory note for the balance of the purchase money, with Thomas J. Coghlan as his surety. On the 11th July, 1850, A. C. Spain conveyed the lot of land to Thomas J. Coghlan in fee,.who, on the same day, executed the following paper : “ I hereby acknowledge that the deed for five and four-tenths acres of land this day made by A. C. Spain, Esquire, was,so drawn for the purpose of securing me against any loss that might accrue by reason of my securityship of B. Kavanagh, on the note for one hundred and fifty dollars, this day given to the said A. C. Spain, as the balance of the purchase money of tbe said lot of land. I also hereby undertake and promise to make such deed of conveyance of the said lot of land, as the said Bryant Kavanagh may direct, by parol, deed, or will, so soon as I may be relieved from my liability on the said note, either by payment or otherwise.” Under this contract, Bryant Kavanagh entered with his family, and is still in possession.

On the 11th September, 1851, Coghlan executed a paper, in which the agreement of the 11th July, 1850, was recited, and acknowledging that the note had, been paid by Kavanagh, and that by his direction, he, Coghlan, held the land “ as trustee in trust for the sole and separate use of Julian Kavanagh, wife of said Bryant Kavanagh, for and during her natural life, and then from and immediately after her death, to the use of the said Bryant Kavanagh, for and during his natural life; and then, from and immediately after the death of the survivor of them, the said Julian and Bryant, to the use of Elizabeth Catherine Kavanagh, Thomas Daniel Kavanagh, Mary Eleanor Kavanagh, William Bryant Kavanagh, and Michael Christopher Kavanagh, children of the said Bryant Kavanagh, as tenants in common, their heirs and assigns forever.” It was also in evidence, that Bryant Kavanagh is insolvent, and that his wife is still living.

Upon the above facts, the presiding Judge held, that the plaintiff was entitled to recover, and, under his instructions the jury found for the plaintiff the land in dispute and damages.

The defendant appealed, and moved for a new trial, on the following grounds:

1. That the proof made, showed that the legal title to the land is in Coghlan.

2. That the deed from A. C. Spain conveyed to Coghlan the legal title to the land, and it is still in him.

8. That the sheriff’s deed to the plaintiff conveyed no estate or interest, because Kavanagh had none which could be levied upon and sold by the sheriff; or, at most, it conveyed only Kavanagh’s contingent interest for life under, the deed of the 11th September, 1851.

After argument in the Law Court of Appeals, the following order was made : “ This case is ordered to the Court of Errors, two Judges, O’Neall and WITHERS, requiring it. The only question to be argued and there decided is, whether the land levied on and sold by the sheriff of Sumter District, as the property of the defendant, was liable to levy and sale as his property under the fi.fa.”

Real estate, liable for the satisfaction of debts, may be made available for that purpose, either by the process of a court of law or equity — the forum in which creditors must seek their remedy will depend, generally, upon the interest or estate of the debtor. In considering the question referred to this Court, which concerns legal process alone, we will enquire,

1. What interest or estate in land may be disposed of under the writ of fieri facias ?

2. If Bryant Kavanagh had such interest or estate in the land conveyed to the plaintiff by the sheriff?

In England various judicial writs were issued to enforce the execution of judgments against real estate. At the common law a levari facias was issued to levy the profits of the land, and, afterwards, the possession of the land was transferred to the creditor under an elegit or an extent, and the debt satisfied by an application of the rents and profits. The writ of fieri facias is a common law execution by which only the goods and chattels of the defendant were subject to levy and sale. In 1732, the Statute of 5 George II., c. 7, (2 Stat. 570,) was passed, which made houses, lands, negroes, and other hereditaments and real estates,” within the plantations in America, chargeable with debts, and subject to the like process as personal estate. In South Carolina the writ of fieri facias has since been made to conform to the provisions of this statute, and all lands or interests in real estate subject to levy and sale under legal process, may now be levied upon and disposed of by the sheriff under this writ. (D’ Urphey vs. Neilson, 4 McC. 129, note; Martin vs. Latta, 4 McC. 128, and Jones vs. Wightman, 2 Hill, 579.) The legal estate must be in the defendant, and not a mere equitable interest or trust, unless it be a trust which is made liable to execution by the Statute of Frauds.

2. Our next inquiry is, Did Kavanagh have such an estate or trust in the land as the sheriff could have disposed of under a fieri facias ?

By Spain’s deed, which declares no uses, Ooghlan was seised in fee, and unless his acknowledgment, made contémporaneously with his deed, and the subsequent declarations of trust have conferred on Kavanagh either a legal estate • or a clear and simple trust, the land was not the subject of levy and sale under a fieri facias. The paper dated 11th July, 1850, does not operate as a conveyance, nor does Kavanagh take a legal estate under it. It is the evidence of his right to direct a conveyance, contingent upon Coghlan’s discharge from his liability as a surety on the note, a.nd on such a right the lien of a judgment does not attach, nor is it liable to levy and sale under execution. Even after he had paid the purchase money, no use resulted in favor of Kavanagh under his agreement to purchase. Before the Statute of Uses it was well established, that where a feoffment was made, a fine levied, or a recovery suffered, without any consideration or declaration of the use, the use resulted to the party by whom the estate was conveyed. (Gilbert on Uses, ed. Sug. 117-18; 2 Shep. T. 521.) The legal ownership never was in Kavanagh, and the law, therefore, would not limit and adjudge the use to him, but to the person who parted with the land. When the consideration money and interest were paid, a trust resulted in favor of Ivavanagh; but such trusts are exclusively within the jurisdiction of a Court of Equity.

It is only on legal estates that legal process can operate, and the facts of this ease show, that the legal estate has never been in Kavanagh. Eor the purposes of the trusts declared in the deed of 11th September, 1851, it is necessary that it shall remain in Coghlan. Admitting that it was in him, it was insisted in argument that under the tenth section of the Statute of Frauds, he was seised or possessed of such a trust as may be taken in execution for Kavanagh’s debts. By the Statute of 1 Rich. III. ch. 1, uses were held to be extendable upon statute staple or merchant, and by the 19 H. 7, ch. 15, the lands of the cestui que use were made liable to execution for his debts, due by judgment. After the Statute of Uses this statute was held obsolete; and when uses were revived under the name of trusts, it was held by analogy to the old law of uses, that trust estates of inheritance were not subject to debts, nor were they assets in the hands of the heirs of the debtors. (Willis on Trustees, 115.) This led to the provision made by the tenth section of the Statute of Frauds, (2 Stat. 525,) applying to trusts the language of the Statute of 19 H. 7, respecting uses, —“ That it shall and may be lawful for every sheriff or other officer, to whom any writ or precept shall be directed, upon any judgment, statute, or recognizance, to do, make, and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents, and hereditaments as any other person or persons be in any manner or wise seised or possessed, or thereafter shall be seised or possessed in trust for him, against whom execution is so sued, like as the sheriff or other officer might or ought to have done, if the said party against whom thereafter execution should be so sued, had been seized of such lands, &c., of such estate as they be seised of in trust at the time of the said execution sued, which lands, &c.} by force and. virtue of such execution, shall accordingly be held and enjoyed freed and discharged from all incumbrances of such person or persons as shall be so seised or possessed in trust for the person against whom such execution shall be sued,” &c. In Doe vs. Greenhill, (4 Barn. & A. 684,) Abbott, O. J., defining the trusts embraced in this statute says, “ We think that the trust that is to be thus treated must be a clear and simple trust, for the benefit of the debtor; the object of the statute appearing to us to be, merely to remove the technical objection arising from the interest in land being legally vested in another person, where it is so vested for the benefit of the debtor.” Coghlan was not seised and possessed in trust for Kavanagh. Spain’s deed passes the fee without any declarations of trust whatever. When the balance of the purchase money was paid, according to the agreement of the parties, testified by the paper dated the 11th July, 1850, Coghlan may have been regarded as a trustee by implication, and bound “ to make such deed of conveyance as Kavanagh may directbut the land was not simply vested in him upon trust for Kavanagh solely, which would constitute a clear and simple trust, and be subject to legal process under the provisions of the statute. If any trust did arise in favor of Kavanagh, it was a resulting or constructive trust, which is an equitable right, and not liable to levy and sale -under a writ of fieri facias. (Harrison vs. Hollis, 2 N. & McC. 578; Bauskett vs. Holsonback, 2 Rich. 624.)

By the paper, dated 11th September, 1851, Kavanagh had an estate for life, in remainder, upon his surviving the determination of his wife’s separate life estate; and it has been argued, that this estate may be'seised and sold under execution. It has been held, that a vested remainder in fee in lands may be levied on and sold during the continuance of a life estate, because, says Johnson, J., the terms “ houses, lands, and other hereditaments and real estates,” cover every vested interest. (Harrison vs. Maxwell, 2 N. & McC. 347.) In that case the fee simple of the land was vested in remainder, and I am not prepared to admit, (if it were necessary to consider tbe question,) that the lien of a judgment attaches on a vested remainder in freehold, the possession of which the priority of other estates may entirely defeat, and that such a remainder is liable to levy and sale under execution. Perhaps a more satisfactory answer to the argument is, that the legal estate was in Coghlan, and, for the purposes of the trusts, remains in him; that no use was executed by the Statute of Uses, which is liable to legal process for the satisfaction of Kavanagh’s debts, and that he had not such a trust as is made subject to execution by the tenth section of the Statute of Frauds.

Conceding that the plaintiff acquired the life estate of Kavanagh in remainder by the sheriff’s deed, he can have no right of possession until the determination of Mrs. Kavanagh’s separate life estate, and consequently, until her death he cannot maintain an action to try titles and recover the immediate possession, which is in the trustee as legal owner. Even the cestui que trust in possession can only be regarded as the tenant at will of the trustee.

We are all of opinion, that the-lot of land, levied on and sold by the sheriff of Sumter District as the property of Bryant Kavanagh, was not liable to levy and sale as his property, under a writ of fieri facias.

JohnstoN, Dunkiít, Dargaw, and Wardlaw, CC., and O’Neall, Wardlaw, Withers, WhitNer, and MüNRO, JJ., concurred.

It is, therefore, ordered that the motion for a new trial be granted.

Motion granted.  