
    Leonora Clement, Administratrix of Stephen Clement, deceased, vs. Thomas R. Reid.
    It seems that mere inadequacy of price is not of itself sufficient ground for the rescission of a sheriff’s sale ; yet it affords good grounds to refuse to aid the purchaser when coming into equity.
    R. bought some land at sheriff’s sale in August, 1839, under execution against F., part of which land F. had, previous to the judgment under which R. bought, sold to H., but the deed was not recorded. ' In July, 1839, C. having a judgment against H., issued execution, which, in September, 1839, was levied on the part of the land bought by R. that F. had conveyed to H.; upon which, R. filed a bill to enjoin the sale under C.’s execution; the court refused to entertain the bill for the following reasons : R. gave only about one tenth the value of the land for it; and at the time of sale it was understood that F. was to have his land back, upon the performance of certain conditions ; no money was paid by R., and yet the plaintiff, in the execution under which he bought, credited the judgment with the amount bid, and C.’s execution was at that time in the sheriff’s hands; from these facts, R.’s bill was dismissed, and the parties left to their rights and remedies at law.
    
      A bill to enforce specific performance of a contract is addressed to the sound discretion of the court, and wjl! not be granted in a case where the party seeking it has been guilty of collusion and fraud in the acquisition of his right.
    If a judgment creditor has no notice at the time of his judgment, of a conveyance by his debtor which is not recorded, is any lien acquired by such judgment? If so, is it destroyed by subsequent notice? If not destroyed, does the purchaser at sheriff’s sale under the judgment, who has notice at the time of sale, stand in place of the creditor, and get a good title,— Quare?
    
    Appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    Thomas R. Reid alleged in his bill, that on the 17th of September, 1836, William M. Haley and Eliza his wife, conveyed by deed to Joseph A. Ferguson, certain land described by sectional lines, lying, in Copiah county, containing three hundred and sixty acres, and acknowledged and delivered the deed to Ferguson. On the 5th of August, 1839, the sheriff of Copiah county sold this land to complainant, and gave a deed thereto under a writ of fieri facias, issued from the circuit court of Hinds county, on the 13th of May, 1839, on a judgment in favor of Robert Jones, for four thousand nine hundred and fifty-two dollars and fifty-seven cents, against Henry H. Vaughan, William Randolph, Jesse Alford and Joseph A. Ferguson, which had been previously levied on this land sold by Haley and wife to Ferguson. On the 17th of July, 1839, an execution issued from the circuit court of Copiah county, in favor of Washington Clement, administrator, and Leonora Clement, administratrix, of the estate of Stephen Clement, deceased, on a judgment in their favor against Joseph A. Ferguson and William M. Haley, for eleven hundred and eighty dollars, had been levied on this land as the property of William ,M. Haley; that this judgment had been obtained since the sale from Haley to Ferguson, and was younger than the one under which the complainant bought the land; that Haley had other and sufficient property within the jurisdiction of the court to pay and satisfy the judgment against him, and the bill prays for a perpetual injunction against-the execution in favor of the Clements.
    
      Leonora Clement answered the bill, her administrator having died; she admitted the sale to Ferguson by Haley, but stated that the deed had not been recorded until after her judgment was obtained, and she submitted whether the deed thus made barred her right as creditor of Haley. She admitted the sheriff’s sale to complainant with this qualification, that the sheriff did not sell the land itself, but only levied on and sold the right, title, interest and claim of Ferguson in the land, without specifying what particular interest was sold. That on the day of the alleged sale, it was proclaimed and well understood by Reid, that the land he purchased was subject to her execution ; and that Reid bought it for five hundred dollars, when it had been sold for fifteen thousand, and was worth from eight to ten thousand dollars. She made her answer a cross bill, but Reid did not answer the cross bill.
    The judgment in favor of the Clements was obtained on the 7th of May, 1838; the deed to Ferguson from Haley, made on the 17th December, 1836, and filed for record the 15th day of June, 1838 ; and the judgment in favor of Jones was rendered on the 16th of October, 1837. The execution on this last judgment, on which Reid bought, was levied on six hundred and forty acres, as the property of Ferguson, including that sold by Haley to Ferguson. Reid bid $500 for the whole six hundred and forty acres.
    Thomas Holliday proved that he sold the land as sheriff of Copiah county to Reid, and sold the interest of Ferguson in it, without defining that interest; that he did not know whether Haley had or not, sufficient property independent of this land to pay the judgment in favor of the defendants; that he made no effort to ascertain whether Haley had other property to satisfy the execution, it being levied at the time of the sale to Reid on a portion of the land sold to Reid.
    Philip Shoemaker proved that he was the deputy of Holliday, and made the sale for him to Reid; that a prior claim, from what source he did not remember, was spoken of on the day of sale; the land bought by Reid was very valuable. That Ferguson was toiling on and cultivating a portion of the land a short time previous to the sale to Reid, and paid taxes on all that was taxable • and that Haley had property sufficient to satisfy the execution against him some short time previous to the sale.
    Wiley Thompson proved that at the time the lands were sold to Reid, Haley made known at the sale that he had a claim on three hundred and sixty acres of it; that he at one time cultivated a portion of the land, and considered it worth ten dollars per acre. That in the spring of 1839, Haley owned three negro women, two horses and a stock of hogs and cattle ; the negroes worth about seven hundred dollars apiece; in the month of August, 1839, Haley had one horse and a small stock of hogs and cattle.
    Holliday, on another examination, stated that there was an understanding between Jones and Ferguson, in regard to the sale of the land bought by Reid, the particulars of which he did not recollect; he did not know that Reid was to buy the land until it was struck off to him; that there was an understanding between Jones and Ferguson; that Jones was to give Ferguson until some time in December, 1839, to pay Jones’s judgment and have his land again ; Reid did not pay any money, but Jones entered a credit on. the execution for the amount of the purchase-money ; that Reid settled an execution in favor of William Carland, for the sum of two hundred and sixty dollars, with interest and costs, against Ferguson and Haley, levied on the same land to the November term, 1839.
    Thomas R. Cottingham testified that Ferguson, in the year 1837 and all of 1838, resided on the land which witness understood Ferguson bought of Haley ; it was known as the Haley place.
    The chancellor decreed after reciting in his decree a portion of the facts, that “ it further appearing that the said Ferguson took possession of the said land under the conveyance from Haley and wife, and was in the possession thereof when the judgment in favor of the defendant was rendered ; and that the said Haley has other property within the jurisdiction of the court, in which the judgment in favor of the defendant was rendered sufficient to satisfy the said judgment,” the injunction against a sale of the land under the execution, in favor of the defendant, should be enjoined perpetually; from which decree she appealed.
    
      Mayes, for appellant.
    1. It is not alleged in the bill that Clement had notice of the sale to Ferguson ; if notice therefore be proved, it could have no effect. Underhill v. Van Courtland, 2 John. Ch. R. 354.
    2. There is no evidence of notice ; on this point he reviewed the testimony at length.
    3. That possession by the bargainee under an unrecorded deed, did not affect creditors of the bargainor, however it might subsequent purchasers. This point Judge Mayes elaborated at great length, and cited 4 Kent’s Com. 171; Hiñe v. Dodd, 2 Atkins, 275 ; Tolland v. Strawbridge, 3 Yes. 498 ; Jackson v. Elston, 12 John. 452; Dey v. Dvnham, 2 John. Ch. R. 182; McMechan v. Griffing, 3 Pick. 149; Jackson v. Sharp, 9 John. R. 164; Jackson v. Bagott, 10 Ibid. 457; Cabeniss v. Mason, 2 McCord, 273; Fonb. Eq. 419, (4th Am. ed.); 15 John. R. 555; Lacine v. Will, 1 Dali. 439; Tuck. Com. 212, 213; Dixon & Starkey v. Lacoste, 1 S. &■ M. 71 ; 10 Mass. R. 60; 6 Wend. 213; 16 Ibid. 242; 3 Paige, 421; 10 Yer. R. 452 ; 4 Kent, 465.
    4. The execution of Clement is against Haley and Ferguson both ; it can be no fraud on Ferguson, Haley’s grantee, to sell the land to pay their joint debt; nor would Reid have a right to complain, as he would get two hundred and eighty acres, worth $2800, for his $500; and Reid’s conduct would not be protected in a court of equity.
    5. The sheriff sold and conveyed all the interest of Ferguson, without defining any specific interest; such a deed is void. Simonds v. Catlin, 2 Caines R. 61; Jackson v. Roosevelt, 13 John. 102 ; Woolfolk v. Phelps, 2 J. J. Mar. R. 33 ; Payne v. Webster, 1 Verm. 101; Ames v. Burt, Ibid. 303.
    6. The purchase of Reid was fraudulent; even if the gross inadequacy of price were not alone evidence of fraud, it is good ground for a court of equity refusing its aid. Osgood v. Franklin, 2 John. Ch. R. 93; Howell v. Baker, 4 Ibid. 118.
    
      
      William Thompson, for appellee.
    1st. The defendant Clement was bound to deny notice of the deed to Ferguson from Haley, whether it was charged in the bill or not. See the case of Rhend v. Harper, Freeman’s Ch. R. 335; 8 Cow. R. 361; Woodruff v. Cook, 2 Edw. Ch. R. 259; Hoplc. Ch. R. 48. It stands, then, that Clement had notice of Ferguson’s deed when her judgment was obtained.
    2d. Notice is tantamount to registration. See Dixon and Starkey v. Lacosle, 1 S. & M. 70, and cases cited. It will be recollected that this was a case at law, and still leaving open the question whether notice would, in equity, be required at all or not.
    3d. The proof is clear, that Ferguson was living on the land when Clement obtained her judgment.
    4th. Possession with the unrecorded deed, is equal to express notice. See Walker v. Bailey et al. Freem. Ch. R. 95 ; 3 Mass. R. 575 ; 1 Pick. 164; 6 Wend. 213 ; 4 N. H. 262.
    5th. Notice to a judgment creditor is not necessary, the unrecorded deed is good without notice as to him ; his lien is subject to.all the equities of third persons. See Dunlap v. Burnett et al. 5 S. & M. 710, and cases there cited. See also Coleman v. Cocke, 6 Rand. 618; 2 Leigh, 100; 1 Green’s R. 54; 2 Gill & John. 333; 3 Ham. 527; 3 Ohio, 538 ; Ohio Rep. Cond. 663 ■ 1 Gill & John. 230; 7 Harris & John. 202, (in connection with the case of Den v. Richmond, 1 Green’s R. 56; see 1 Dallas, 453 ; 4 Ibid. 151-153; 2 Serg. & Rawle, 13; 7 Ibid 286); 2 Paige Ch. R. 217, 266; 4 Kent Com. 173; 4 John. R. 221; 1 Edw. Ch. R. 652; 4 Dana, 258; 3 Binney, 394; 1 Bay. 90, 316 ; 4 Paige, 9.
    6th. When Jones obtained his judgment against Ferguson, about the 1st November, 1837, this judgment was a lien on the land, and Ferguson should have recorded his deed, and would be looked on as holding in trust for his creditor Jones, and it would not be allowed for Clements to get judgment, 9th May, 1838, and take advantage of Ferguson’s laches or fraud in not having his deed recorded. See 3 Yerg. 171.
    7th. Haley had property enough to satisfy Clements, due about the time the same was levied on this land, but Clement prevented it from being levied, and directed it to be held up, tvhich was a fraud on Reid.
    8th. The land was sold and deed made, according to the statute. See H. & H. Dig. 644, sec. 48.
    9th. To the point made by Clement’s counsel, that the land was sold subject to her claim, we rely upon the proof as establishing the contrary.
    10th. As to the ground taken by counsel that Reid was the agent of Jones, and purchased for him, we contend that the proof does not sustain this position.
    11th. To the point made by counsel, that the land sold for only $500, we say this cannot be any ground for setting aside a sheriff’s sale, to a stranger or even the creditor himself. See the case lately decided by this court, of Richard W. Anderson v. John Delajield et al. 7 S. & M. 360.
    12th. The debts on which Clement’s judgment was obtained, were contracted the 30th of April, 1836, as the record shows.The deed from Haley to Ferguson was not executed till the September following. Now in a case of that kind, we contend that a mortgage creditor would be postponed to the equity of an unregistered deed, even where he took the mortgage without notice. See Dunlap v. Burnett, 5 S. & M. 702, and cases there cited. And much more would a judgment creditor in such case be postponed.
    13th. The word creditor in the statute means a mortgagee, or at least one who had obtained a judgment, and executed it by buying the land under it before notice. See 3 Griffith’s Law Register, 426 ; 2 Binney, 40, 43 ; 7 Watts, 267, 271; 1 Paige, 284; 3 Ibid. 67; 1 Ohio, 267. A court of equity will not permit the party having subsequent equity to protect himself by getting the conveyance after he has notice, either actual or constructive. 3 Paige, 436. See also 4 Cowen, 595 ; 6 Ibid. 120 ,* 9 Ibid. 13, 120; 4 J. R. 216; 9 Ibid. 163; 10 Ibid. 45-7; 13 Ibid. 471; 4 Wend. 585; 6 Ibid. 213; 8 Ibid. 620 ; 11 Ibid. 442 ; 19 Ibid. 339 ; Jackson v. Burgott, 10 J. R. 457 ; 10 Mass. R. 62.
    
      14th. Whatever puts a party upon inquiry, amounts in law to notice, provided the inquiry becomes a duty, as in case of creditors and purchasers. 7 Watts, 267-271, and the various authorities cited in the argument of Judge Maury.
   Mr. Justice Clayton

delivered the opinion of the court.

The bill states that in September, 1836, one William M. Haley sold and conveyed three hundred and sixty acres of land to Joseph A. Ferguson, but that the deed was not recorded until 20th June, 1838. It further states, that on the 5th of August, 1837, the complainant Reid purchased seven hundred and twenty acres of land, including the said three hundred and sixty, at sheriff’s sale, under an execution in favor of Robert Jones against Ferguson and others, founded upon a judgment obtained in October, 1837. It also states that Mrs. Clement, as the administratrix of Stephen Clement, deceased, had caused an execution to be issued upon a judgment in her favor, rendered in May, 1838, against the said Haley, and levied upon the land sold by Haley to Ferguson. This execution was issued on the 17th July, 1837, and was levied upon the land in question in September, 1839. The bill also states, that Haley had other sufficient property to satisfy the execution, and prays for an injunction to prohibit the sale of the land. The answer admits what is alleged in regard to the judgments and executions, and sale of the land, but avers that it was sold subject to her execution, and brought only five hundred dollars, when it was worth eight or ten thousand.

In the case of Dixon & Starkey v. Lacoste, 1 S. & M. 71, the creditor had notice at the time of his judgment, of the unregistered deed. In this case, it does not appear that there was any such notice at the time of the judgment. By the judgment was any lien acquired ; if so, was it destroyed by subsequent notice? If not destroyed, does the purchaser at sheriff’s sale stand in place of the creditor, and get a good title, though he have notice at the time' of the purchase ? These are grave and delicate questions, and we shall not determine them, except in a case which necessarily requires their decision. Although the points were argued, we do not regard this case to be of that character.

The complainant occupies the same position as if he had filed his bill to enforce his purchase. If the defendant be perpetually enjoined from proceeding with her execution against the land, it is the same thing in effect, as if a decree were rendered against her right. It amounts then, as between these parties, to a bill for a specific performance, and is addressed to the sound discretion of the court. There are various circumstances which incline us not to give the relief sought.

The price for which the land sold was very inadequate, not one tenth of its value. Although this might not constitute ground for a rescission, if unconnected with fraud, it affords good reason not to aid the purchaser. Franklin v. Osgood, 2 Johns. Ch. 1.

There is some reason to believe, from the proof, that there was collusion between Jones, the plaintiff in the execution, Ferguson the defendant, and Reid the purchaser. It was understood that Ferguson was to have his land back, upon the performance of certain conditions; no money was paid by Reid, and the execution was credited by Jones with the amount of his bid. The execution of Mrs. Clement was then in the hands of the sheriff, and it might have been thought necessary to take some step, after a delay of nearly two years, to keep a preference over her. The allegation that Haley at the time of the levy, had sufficient property apart from this land, to satisfy this execution, is not sustained by the proof; though the chancellor made that circumstance the foundation of his decree making the injunction perpetual.

We think it better, under all the circumstances, to leave the parties to their rights and remedies at law. The decree will, therefore, be reversed, and the bill dismissed.  