
    OLIVER QUINN vs. EDWARD RIPPEY & AL.
    .One, tiie title of whose land, as alleged by a creditor, has been sold by this creditor at execution sale, is an incompetent witness in «suit between other ¿parties, ..to prove that tile title was really in him.
    The case of Waller v. Mills, 3 Dev. 515, cited and approved.
    Case removed from the Court of Equity of Cleaveland County, at the Fall Term, 1845.
    
      In 1832, Peter Mauney was seised of the land in fee, which is the subject of this controversy, and contracted to sell it to the defendant, Leguire, who went into possession. Leguire did not pay any part of the purchase money, and Mauney brought an action of ejectment against him in Rutherford Superior Court. When, the case was about being tried, at October term, 1836, the parties came to a new agreement, by which Mauney was to dismiss the suit, if Leguire would give a new bond for the purchase money, with the defendant, Edward Rippey, aud one Epps, as his sureties; which was then done. At the.same time, Leguire executed a deed to one Michael Borders, dated November 5th, 1838, for the same land, upon trust to sell, and, out of the proceeds of sale, to pay the debt to Mauney, if it should not be paid by Leguire, when it became due. The deed is very informally drawn, and contains no words of inheritance, so that the trustee got but a life estate, at any rate. At the ¡Superior Court of Lincoln, which was the week afterwards, one Collins obtained judgment against Leguire, on which he issued a fieri facias, and delivered it to the Sheriff of Rutherford, on the 9th of January, 1837, and he levied it on this land, on the 14th of February following; and, upon a venditioni exponas, it was subsequently sold, and purchased by the plaintiff, Quinn, who took the Sheriff’s deed aud got into possession, Leguire having abandoned it. Afterwards, Mauney brought an action of ejectment against the present plaintiff, and judgment was obtained therein by the plaintiff, as the defendant at law, Quinn, being unable to shew that Mauney ever conveyed to Leguire. Mauney having died, Quinn filed this bill against his heirs, Rippey and Leguire, and therein charges, that,in fact, Mauney did execute a deed for the premises to Leguire, when the new bond, with sureties for the purchase money, was given ; and that, after the plaintiff’s purchase, and with the view of favoring Rippey, and defeating the plaintiff of his purchase, of which they were well informed, those three persons, Leguire, Rippey and Mauney, agreed to cancel the contract of sale to Leguire, and the latter, thereupon, surrendered the deed, which Mauney had made to him, and which had not been registered; and they then destroyed it. The prayer is for a conveyance from Mauney’s heirs to the plaintiff, as the purchaser of the land at the Sheriff’s sale, and, in the mean while, for an injunction against suing out execution on the judgment at law.
    The answer of Mauney’s heirs states, that they have no knowledge or information, that their ancestor ever made a deed to Leguire for the land ; that those persons made the contract in 1832, and that, at Fall term, 183G, of Rutherford Superior Court, a new arrangement was made between them on the subject, as these defendants have understood, but what it was they do not know. And they state, that afterwards Mauney claimed the land as his own, and instituted the suit at law, against the present plaintiff.
    The answer of Rippey states, that it was known, when he and Epps became Leguire’s sureties, that he, Leguire, was much embarrassed, if not insolvent; and that, for that reason, it was agreed that Mauney should not convey the land, but retain the title, as a security for the purchase money ; and that it was further agreed, that, if Leguire did not pay the money, and Epps or Rippey should pay it, the land should be conveyed by Mauney to the party making the payment for it. This defendant also states, that, fearing that they might be afterwards embarrassed by the creditors of Leguire proceeding in some way against his interest in the land, it was further agreed that Leguire should, at that time, secure to his sureties whatever interest he had therein, by a conveyance to a trustee for that purpose ; and that, in execution of that agreement, Leguire made the deed to Borders, when the bond was given to Mauney for the purchase money.
    
      He denies positively, that Mauney made a conveyance to Leguire, at that time, or at any time to his knowledge, or that he ever had it, or that it was surrendered by Leguire to hi m. He states, that, after the land had been sold by the Sheriff, Leguire abandoned it, and became insolvent; and that then Mauney, in February, 1838, applied to him, Rippey, for payment of the bond, and that he, thereupon, went for Leguire that he might' consent, according to the original agreement, that Mauney should make the deed to him, Rippey, upon his payment of the purchase money, as he was obliged and intended to do ; and that Leguire came to his house and was present when he, Rippey, paid to Mauney the whole principal and interest due on . the bond, and saw Mauney make a deed for the premises to Rippey, and fully approved thereof, and did not then intimate that Mauney had ever conveyed to him, Leguire. The answer states, that, in the next month, Mauney applied to him, Rippey, to re-purchase the land, and proposed to pay him back the same price he had received ; and that this defendant, not wanting to keep the land, acceded thereto, and received from Mauney what he had before paid to him, and at the same time surrendered the deed which had been made by Mauney to him, Rippey, and it was destroyed — that, being deemed by the parties sufficient, as that deed had never been proved or registered. And the defendant says, that he never afterwards had any claim against Leguire, for having paid the bond as his surety, nor any claim to the land, after Mauney returned to him the money he had before paid.
    The answer of Leguire was also filed, but was not read at the hearing, as the plaintiff took his deposition under an order.
    The plaintiff examined the wife of Leguire, as well as Leguire himself, and their depositions were read without objection. She states, that, about 1838, Rippey came to Leguire’s residence in his absence, and asked her for the deed from Mauney to her husband; and that she handed liim all her husband’s papers, and, after looking over them, he took out one., and said that was the deed he wanted. She did not see that it was a deed, nor does she know that her husband had such a deed, except as stated by Rippey on that occasion.
    Leguire says, that Mauney did make a deed to him for the land and he then made the deed of trust to Borders for the counter security of his sureties ; that he saw Rippey the same day ; that Rippey had been at his house and was told by him, that he had got the deed from his wife, and that he then went with Rippey to his house and there saw Ma.uney, who asked him, if the deed had been registered, and when the witness told him that it had not, Mauney remarked, that was all he wished to know, lie denies that he ever said that Mauney had not made him a deed, or that he was present when Mauney conveyed to Rippey, or consented that he should do it. And he says, that he is not on good terms with Rippey, but has sued him for slander.
    Another witness for the plaintiff states, that he saw Mauney as he was going to Rippey’s in February 1838, and asked him whether he had made a deed to Leguire ; and Mauney replied that he had, but that Rippey and Epps took a deed of trust for the land, and that would hold it; and he mentioned further, that the deeds were written and witnessed by a man named Perry Roberts.
    On the other hand, a witness for the defendant states, that Leguire told him, that Mauney gave him a bond for a title, and that he was to get a deed, when he should pay for the land.
    Three other witnesses state, that, at the time Leguire came to Rippey’s with him and saw Mauney there, he declared that Mauney never had conveyed the land "to him: that at that time, by his consent, and in his presence, Mauney conveyed it to Rippey, who then paid the purchase money; and that the person, who was writing the deed from Mauney to Rippey, asked for the deed from Mauney to Leguire, (which, he supposed to have been made) in order to get the boundaries of the 1 and from if? and thereupon, both Mauney and Leguire said, that no such deed had ever been executed.
    The deed of trust is exhibited, and it bears date the 5th of November, 283G, and is attested by Perry Roberts, and was registered February 6th, 1837.
    
      Alexander, for the plaintiff.
    
      Guión, for the defendants.
   Ruffin, C. J.

If the statement of this transaction, whicia Leguire gives, be true, a legal question would arise, which, perhaps, is not clear of doubt. For, as the conveyance to Leguire and the deed of trust by him were executed together, upon one treaty and as different parts of the same transaction, and as the deed to him was never registered so as to complete his legal title, it is quite debateable, whether a Court of Equity, would set up the deed, as though it were registered, or would supply its place, upon any other condition than that the plaintiff should first pay the purchase money and interest. But as that question was not discussed, and its decision is not necessary for the purpose of this cause, in the view the Court takes of it, we shall not further consider it.

The bill is not framed upon the idea, that Leguire had an equitable interest, merely, in the land, in the nature of the right of a mortgagor, and it does not offer to pay Mauney’s purchase money. But the whole equity is founded on the fact, that a deed was made to Leguire, which was an incipient legal title, and only lacked registration to constitute a competent title, and that, after his purchase, it was suppressed in fraud of the plaintiff It therefore behooves the plaintiff to establish the execution of such a deed. The only direct evidence to the point, is that contained in Rippey’s answer and Leguire’s deposition : and they are irreconcilably contradictory to each other. The answer, however, is entitled, upon a rule of the Court, to preponderate, unless the credit of the witness be propped by other witnesses, or collateral circumstances. But, as they seem to the Court, the circumstances here operate against, rather than for, the witness. In the first place, he is a biassed and an interested witness. The land was sold under execution for his debt, and he comes to support his title and the sale, and thereby to be discharged from the judgment debt. Waller v. Mills, 3 Dev. 515. The debt to Mauney or Rippey is gone, upon the admissions in the answer of Rippey; and consequently Leguire’s interest is ail on one side. The same remarks are equally applicable to the testimony of his wife. ■ But the truth is, that she proves nothing of any consequence, as she really does not pretend to know, that there was such a deed as the plaintiff sets up, and it would be unsafe, against the positive answer of the defendant, to decree upon a loose declaration, proved under the circumstances in which she was. In the next plaee, three witnesses expressly and directly contradict Leguire in essential parts of his testimony, and prove, that he explicitly stated that there had not been a deed to him ; and that he made the settlement under circumstances, which would naturally have induced him to state the contrary, if the contrary had been true. Besides, a fourth witness deposes, that at a different time he told him, that it was not -a conveyance for the land which he had, but a bond for title, as he called it, when he should pay for the land. Then, it is a consideration entitled to much weight, that the plaintiff upon whom the affirmative lies, has not examined either Roberts or Epps, who appear to have been present, when the deed of trust was made, and therefore must have known of the deed of conveyance, if, as Leguire says, one was made to him at the same time. But neither of them has been examined, nor any account given of them, nor any reason for not taking their testimony, but the plaintiff has preferred relying on Leguire alone,. The circumstance, that Leguire made a deed of trust, would, indeed, afford some presumption, if unexplained, that he had the title. But it may be otherwise ; and the answer states it to have been otherwise, and that the reason for taking the deed of trust was, that the parties feared that even the equitable title might be sold, to the exclusion of the sureties for the purchase money. That point was not so entirely plain, that these persons, who appear to be illiterate, might not have entertained that opinion. At all events, we cannot decree for the plaintiff upon a fact, thus denied and thus defectively proved, when it was in the plaintiff’s power, if the fact had been, as he alleges, to have proved it clearly by two other unsuspected witnesses.

Upon the whole, then, it must be declared, that the plaintiff has failed to establish that Mauney made a conveyance of the premises to Leguire; and therefore, the bill must be dismissed with costs.

Per Curiam.

Decree accordingly.  