
    Argued 31 December, 1900;
    decided 25 February, 1901.
    SILVER v. LEE.
    [63 Pac. 882.]
    Land — Liability or Equitable Interest to Levy and Sale.
    1. Where an insolvent debtor purchases land, and causes it to be conveyed directly to a trustee, he has no interest therein which is subject to sale on execution against him, and, of course, a purchaser of such land at an execution sale acquires no title whatever: Bloomfield v. Humason, 11 Or. 229, applied.
    Jurisdiction to Remove Cloud — Possession by Plaintiee.
    2. A legal title, either one resting on records or on adverse possession, cannot be asserted in equity, as by a suit to remove a cloud from a title, except by one in possession: O’Hara v. Parlcer, 27 Or. 156, followed.
    From Columbia: Thos. A. McBride, Judge.
    This is á suit by Joseph Silver against Wm. C. Lee for a decree establishing title in the plaintiff to a tract of land one hundred feet square, in the town of Rainier, and for the cancellation of a deed thereto: from one Mary Ann Watkins to the defendant. The facts are that on Juné 8, i§77, one George Watkins, while indebted to J. O. Hanthorn & Company, purchased the land in controversy, and caused it to: be conveyed to his wife, Mary Ann Watkins. On the twentieth of December, 1877, Hanthorn & Company commenced an action at law against Watkins, and caused the property in controversy to- be attached. Subsequently such proceedings were had in the action that a judgment was rendered in favor of the company, and the attached property was sold at sheriff’s sale, and purchased by one Wadhams, who' received a sheriff’s deed therefor. At the time of the sheriff’s sale Mrs. Watkins was residing upon the land, and continued to live there until the dwelling house was destroyed by fire, in January, 1880, since which time she has not occupied the premises. Soon thereafter, Wadhams made some arrangement with the plaintiff, who lives immediately adjoining, to look after the property for him, which the plaintiff continued to do until December 20, 1887. He then purchased Wad-hams’ right, title, and interest, and thereafter exercised acts of ownership, such as keeping the fences in repair, planting out trees, cutting grass, and pasturing stock, until about June 4, 1892, when the defendant, who- had in the meantime purchased from Mrs. Watkins, entered and took possession, and has since lived in the only house or building thereon, claiming actual possession of the entire tract. This suit was commenced May 2, 1896. The complaint, among other things, alleges that the property was conveyed to Mrs. Watkins at the request of her husband, for the purpose of defrauding his creditors, and especially Hanthorn & Company; that Wadhams, the purchaser at the sheriff’s sale, took possession of the property on or about the twenty-sixth of August, 1879, and continued to hold the same adversely until December 20, 1887, when he sold to the plaintiff; that the plaintiff immediately entered into- the full and complete possession of all the premises, claiming to- hold the same adversely to all the world, and continuously maintained such possession until June 4, 1892, “at which time the defendant procured from Mrs. Mary Ann Watkins a deed releasing and relinquishing any right she might have in said land to him, * * * since which time the defendant has been claiming, and is now claiming, some right or interest in and to said land, and since which time the defendant has forcibly entered onto- a portion of said land, and has had possession thereof, and has refused, and still refuses, to- vacate, and leave plaintiff undisturbed in his possession thereof.” The answer denies the material allegations of the complaint, except that defendant procured a deed from Mrs. Watkins for the land in question, in pursuance of which he entered into and took possession, and, fo-r an affirmative defense, avers that he is, and for years prior to the filing of the complaint was, the owner and in possession of all the property described in the complaint. The cause was tried before the court below upon the pleadings and testimony, and a decree rendered in favor of the plaintiff, adjudging that he is the owner of the legal and equitable title to the property, and directing that an execution issue commanding the sheriff to place him in the full and peaceable possession and enjoyment thereof. From this decree the defendant appeals.
    Reversed.
    For appellant there was a brief over the names of Schuyler C. Spencer and Dan J. Malarkey, and an oral argument by Mr. Spencer.
    
    For respondent there was a brief over the name of W. J. Rice.
    
   It is settled law that, where the estate or interest in real property is legal in its nature, a court of equity will not assume jurisdiction at the suit of the owner to try and determine a dispute to the title, unless he is in possession, but will leave him to his remedy at law. In this case there are no special circumstances affording ground for equitable jurisdiction. The plaintiff’s title, if any, is a legal one, founded upon adverse possession. The proceedings in the action of Hanthorn & Company against Watkins gave the purchaser no title to the property, either legal or equitable. Although Watkins purchased and paid for the land, and, it may be conceded, caused it to be conveyed to his wife for the purpose of defrauding his creditors, he had no¡ interest therein to which the lien of a judgment could attach, or which could be sold under an execution. Where land is purchased and paid for by one person, but conveyed to another, a trust results in favor of the person who' paid the price (Parker v. Newitt, 18 Or. 274, 23 Pac. 246; Taylor v. Miles, 19 Or. 550, 25 Pac. 143); but it is a mere equitable interest, and in this state cannot be seised or sold on execution: Smith v. Ingles, 2 Or. 43; Bloomfield v. Humason, 11 Or. 229 (4 Pac. 332). Nor in such case can the title be reached by an execution against the cestui que trust, even if the conveyance was made for the express purpose of defrauding creditors. The property may, of course, be made to contribute to the payment of the debts of its real owner, but the remedy of the creditor is in equity, and not at law. Mr. Freeman says: “Where a debtor has fraudulently conveyed his property, it may be taken on- execution against him, because, in favor of his creditors, he is still considered as the owner of the legal as well as of the equitable title. But when he has fraudulently bought property, and had the title taken in the name of another, the circumstances are different, though the object is the same. If the transfer were treated as void, the title would remain in the person of whom the purchase was made, and this would be of no advantage to the creditors. The transfer must therefore be treated as valid, and as transmitting the legal title to the person named in the deed. This legal title cannot be reached by the levy of an execution against the debtor, because he has never owned it. The creditors. must therefore resort to equity, except in a few states, where statutes have been enacted to enable them to reach it at law”: 1 Freeman, Ex’ns (3 ed.), § 136. See, also, 14 Am. & Eng. Enc. Law (2 ed.), 313; Wait, Fraud. Conv., § 57; Robertson v. Sayre, 134 N. Y. 97 (31 N. E. 250); In re Estes, 6 Sawy. 459 (Fed. Cas. No. 4,536).

It follows, therefore, that the plaintiff has no standing in equity, on the theory that he has an equitable title which he could not assert at law; for no1 title or interest whatever in the property was acquired by the sale under the judgment of Hanthorn & Company. His title, then, rests entirely upon adverse possession, and, before he can assert such a title in equity, he must be in possession of the property: Coolidge v. Forward, 11 Or. 118 (2 Pac. 292); O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004). The complaint alleges, the court found, and the evidence shows conclusively, that, at the time the suit was commenced, the defendant Lee was, and had been for some time, in possession of at least a portion of the premises, occupying the only building thereon, and was asserting and claiming possession of the remainder. The plaintiff seeks tO' have his title to the entire tract quieted, but is admittedly not in possession of a considerable portion thereof, and is therefore as effectually barred from the relief sought -as if entirely out of possession. It may be, under proper pleadings and evidence, that the court could, in a case of this character, ascertain what definite part of a tract of land, if any, a plaintiff is in possession of, and quiet his title thereto'; but nothing of that sort was attempted by the pleadings and evidence in this case. We think, therefore, the court had no jurisdiction to determine the dispute between the parties by a proceeding in equity. The decree of the court below must therefore be reversed, and the complaint dismissed. Reversed.  