
    Kate McBain v. Daniel McBain et al.
    1. Where an order confirming a sale made by the sheriff to a plaintiff in execution, is reversed, on error, after the execution of the sheriff's deed, and before any legal conveyance by the purchaser, the title, if any, acquired by the sheriff's deed, is divested by the order of reversal.
    2. The wife of such purchaser, receiving from him a deed to herself for the premises, after the execution of the sheriff's deed and before the reversal, in consideration of her choses and moneys previously reduced to his possession, with the intention to convey said premises to her in compensation therefor, but without any contract binding him so to do, can not, in equity, compel a conveyance of the legal title by the defendant in execution.
    3. Parties to proceedings in partition acquire no new title thereby ; and where they are made such by publication, and without actual notice, they are not estopped thereby from setting up their legal title.
    
      Civil Action. Reserved in the district court of Lucas county.
    This cause came into the district court by appeal from the judgment of the common pleas; and the facts shown by the pleadings and evidence are substantially as follows:
    In the year 1847, Daniel McBain, having a judgment in his favor against Willard J. Daniels, another defendant, caused an execution to be issued upon it, and a levy thereunder made upon an undivided interest, being in quantity thirty-four acres, in a certain tract; of land, of which the land in controversy is a part, as the property of said Daniels. '
    In the year 1850, the interest so levied upon was sold at public sale, under the levy thus made, to said Daniel McBain; and the sale was, on the 10th day of July, of that year, confirmed by' the court of common pleas of Lucas county, and the sheriff ordered to make a deed to' the purchaser; in pursuance of which, on the 7th day of August, 1850, the sheriff executed and delivered to said McBain a deed of the .interest so purchased.
    On the 4th day of September, 1851, said McBain, claiming to be the owner of said thirty-four acres in common, under the ■sale made, by the sheriff, instituted in said court of common ■pleas, a proceeding to obtain a partition of the tract, making 'Daniels, among others, a party defendant thereto; service ■upon Daniels being made by publication.
    On the 31st of March, 1852, partition of the tract was vmade, the interest of McBain therein set off to him in severalty, and the partition confirmed by the court.
    Subsequently to obtaining the deed from the sheriff, and ¡prior to the proceedings in partition, McBain executed and .delivered a mortgage upon the thirty-four acres in common, to one Mary J. Larned, to- secure the sum of two thousand •dollars by him borrowed of her.
    Afterward, on the 20th of September, 1851, McBain was. «named to said Mary J. Larned. At the time of the marriage ¿nothing was said between McBain and his wife in relation to her retaining said note and mortgage against him, notwithstanding the marriage; but McBain testified that, “before and after the marriage, he told her that he did not intend to take any of her property, and, in fact, he did not intend to take any.” The note and the mortgage, after the record of the latter, were kept by Mrs. McBain in a pocket-book belonging to her, until her death, and McBain found them there after her death.
    At the time of her marriage, Mrs. McBain was the owner in fee of a farm in the State of Michigan. After her marriage she concluded it was more for her interest to sell this farm than to hold it, and she proposed to her husband to have it sold. It was sold for $2,200. The purchase money was paid part in hand and the balance secured by note, payable to Mary McBain or bearer. All the money, both the down payment and that secured by the note, was paid to McBain, and he used it in his business. He testifies “ that before he sold the land he told his wife that if it was sold he would deed the the land, now in controversy, to her, for the money he might receive on the sale, and the money he owed on the mortgage.”
    On the 29th of September, 1852, he accordingly executed the deed. And he testifies, that the deed was executed before he received the money on the deferred payment for the land sold, and before the down payment was made. His wife did not make it a condition of the sale of her farm, that he should make this conveyance; but he voluntarily offered to do so, if she made the sale. His wife had previously offered to make a will devising all her property to him, but he declined having her do so. He drafted the writing to his wife. He says, in his testimony, both he and his wife supposed, at the time, it was a valid conveyance, and sufficient to convey her the title, and he intended thereby to convey the legal title. He carried the deed to the recorder for record and paid the fees.
    At the December term, 1858, of the. district court, the order of the court of common pleas, confirming the sale to McBain,, under the execution in his favor against Daniel's, was reversed and set aside for the reason that the sale was for less than two-thirds of the appraised value of the property. The case is reported in 2 Ohio St. Rep. 406.
    At the time of the conveyance by McBain to his wife, neither he or she had any actual notice of the defects in the proceedings of sale by the sheriff, or of Daniels’ intention to claim the property, or to institute proceedings to reverse the order of confirmation. But the record showed that the sale was made for about one half the appraised value.
    The wife of McBain has since deceased, and the plaintiff, her sole heir, files her petition against him and Daniels, and other defendants claiming as purchasers from Daniels, demanding a release and conveyance. McBain makes no defense. The other defendants have put in answers, and resist the claim.
    
      Kent and JVewton, for plaintiff:
    Whether the plaintiff must fail in this suit because the wife of McBain did not procure the legal title, and whether Daniels and his assigns can succeed in consequence thereof, for the reason that he has procured the order of sale to be reversed, presents one and the same question, and the one to be investigated herein.
    I. The consideration of the proposed conveyance from McBain to his wife, being her separate property, she was in no sense a volunteer. The consideration was a valuable one, and the transaction based on good faith; and a court of equity will act upon, and under such circumstances enforce, a contract between husband and wife. The contract is therefore one. which a court of equity would enforce in favor of the plaintiff against McBain himself. Livingston v. Livington, 2 Johns. Ch. 537 ; Deming v. Williams, 26 Conn. 226.
    A deed made directly from husband to wife, though void at common law, is valid in equity, if otherwise unobjectionable. Wells v. Treadwell, 28 Miss. 717; Wells v. Wells, 35 Miss. 638 ; Coates v. Gerlach, 44 Pa. St. 43.
    In this state, it is a well-settled rule, that when an instrument intended as a deed to convey land has not been so executed as to pass the estate or vest the title, equity will consider it as a contract to convey, and a court -ftill enforce its execution. Barr v. Hatch, 3 Ohio Rep. 527; Carr v. Williams, 10 Ohio Rep. 305.
    It is clear, then, that except as against Daniels and his assigns, the equity of the plaintiff is perfect ’; and if the legal title were in McBain, the plaintiff would have the aid of a court of chancery to acquire it.
    II. We will inquire where the legal title was upon the confirmation of the sheriff’s sale, and where it is now.
    1st. It is admitted that McBain had a valid judgment against Daniels; that an execution was issued upon it, and the land in controversy levied upon under it; that the sheriff of the county duly advertised the land, and ostensibly sold it to McBain. The sale was reported in due form to the court, and confirmed, and the sheriff ordered to make a deed to the purchaser; and, in pursuance of the confirmation and order, the sheriff did subsequently execute and deliver such deed to McBain.
    Everything was done in pursuance of law, except that the property was not sold under any appraisal made in the case; and at the return of the sale and confirmation thereof, Daniels seems not to have objected to the proceedings under the execution, or in any wise resisted the confirmation of the sale.
    We claim, therefore, that the title to the land under the sale, passed to McBain. Wheaton v. Sexton’s Lessee, 4 Wheat. 503; Voorhies v. Bank U. S., 10 Pet. 449; Thompson v. Phillips, Baldwin’s C. C. R. 246 ; Bool v. King, 6 Ohio Rep. 11; Allen’s Lessee v. Parish, 3 Ohio Rep. 186; Swan’s Stat. 475, 476; Pieket’s Adm’r. v. Pickets Adm’r., 6 Ohio St. Rep. 525.
    2d. The record shows that the order of confirmation was reversed in the supreme court, 2 Ohio St. Rep. 406. We nowhere discover that the sale was ever set aside, or that Daniels ever procured any other thing to be done in the premises.
    Our supreme court has held that the deed of the sheriff is not valid unless the sale be approved by the court, and an order made for the deed. Rut if the sale has been approved, a deed ordered by the court, and in pursuance thereof the sheriff has executed and delivered a deed carrying the legal title, the reversal of the order of confirmation does not any more carry the title from the purchaser to the judgment debtor, than the confirmation and order that the sheriff make the deed, transfers the title without the deed. The title is no more divested by that act than title is divested by the redelivery of a deed, after it has been delivered and taken effect as such. If we concede that without an approval of the sale and an order of confirmation, the deed of the sheriff is of no avail to pass the title to lands sold, we still leave untouched the question here presented.
    The title which is carried by the deed to the purchaser can not be divested by an order of the court, which only acts upon the incidental and preliminary matter, but leaves the deed untouched.
    3d. The statute in force at the time this sale was made, applicable to sales of real estate on execution, provided as the one now provides, that if the judgment on which the sale is made be reversed, such reversal should not defeat the title of the purchaser. The expression is general. The term purchaser is not limited to a third person who is not a plaintiff to the judgment. Parker’s Heirs v. Anderson’s Heirs, 5 Monroe, 451; Benningfield v. Reed et al., 8 Ben. Mon. 102; Gossom v. Donaldson, 18 Ben. Mon. 230; Hubbell v. Adm’r of Broadwell, 8 Ohio Rep. 120; McBride v. Murphy et al., 14 Ohio St. Rep. 349; Irwin v. Jeffers et al., 3 Ohio St. Rep. 380.
    Certainly, if the reversal of the judgment does not divest the title of the purchaser, the reversal of the order of confirmation should not have that effect.
    4th. If we are wrong in our deductions that the legal title is still in McBain, for the foregoing reasons or for any other, we still insist that Daniels is estopped from claiming that he has the legal title
    
      Subsequently to tbe sheriff’s sale, McBain instituted his proceedings under the statute for partition of the tract, and thereunder obtained a partition, in which there was set off to him in severalty the interest which he acquired under the sale; and the court afterward confirmed the proceeding. To that suit Daniels was a party defendant; and although he was brought in by publication, he is still as much bound as if he had been actually served. Rogers v. Tucker, 7 Ohio St. Rep. 417; Marvin v. Titsworth, 10 Wis. 320.
    The court must have found as a fact that McBain was entitled to the land by him purchased, and that the legal title was in him. Harman v. Kelley et al., 14 Ohio Rep. 502. That finding has never been set aside or reversed, and so long as it thus stands it can not be inquired into collaterally except for fraud, and binds parties and privies. Dabney v. Manning, 3 Ohio Rep. 320; Wilson v. Bull, 10 Ohio Rep. 250; Bohart v. Atkinson, 14 Ohio Rep. 228; Rogers v. Tucker, 7 Ohio St. Rep. 417. See also Herr et al. v. Herr, 5 Barr. (Pa). 428; Merklein v. Trapnall et al., 34 Pa. St. 42; Clapp v. Bromaghan, 9 Cowen, 569 ; Grice et al. v. Randall, 23 Vt. 239 ; Loomis v. Riley, 24 Ill. 307.
    III. Next, as to the rights of Mrs. McBain to the premises, as well upon the supposition that the reversal of the order of confirmation of sale did affect the legal title in McBain, as that it did not.
    1st. She was not a purchaser pendente lite, but was an innocent purchaser. She had a right to rely upon the title as it appeared of record. Ludlow’s Heirs v. Kidd, 3 Ohio Rep. 541; Taylor v. Boyd, 3 Ohio Rep. 337; McCormack v. McClure, 6 Blackf. 466; Atwood v. Meredith et al., 37 Miss. 635; Snyder v. Sponable, 1 Hill, 567.
    2d. Mrs. McBain was also a bona fide purchaser of the property. She paid a valuable consideration in money belonging to her, and the whole of the purchase money before she had any notice of any claim of Daniels. Her husband had the legal title at the time of her purchase, and was in the possession of the premises. No one was in the adverse occupancy of them; and such being the fact the title draws after it in law the possession. She contracted with her husband for the full legal title to the property, and they mutually supposed that the deed was operative to convey the title from the one to the other. If it did not carry the title at law, it was in consequence of a legal omission, or mistake. We claim that she occupies the same position in this court that she would have done, if in purchasing she had in fact acquired the legal title. Mrs. McBain purchased a legal estate apparently perfect, good at law, and a vested estate in fee simple; and she purchased it by a regular conveyance; and whether in taking the conveyance she obtained under it an equity only, it is certain that she supposed she was taking the legal title. Bellas v. McCarty, 10 Watts, 29; Boone v. Chiles, 10 Pet. 212; Reed v. Dickey, 2 Watts, 459 ; 2 Lead. Cas. in Eq. pt. 1, 64; Vattier v. Hinde, 7 Pet. 254.
    3d. But if Mrs. McBain did not occupy the position of a Iona fide purchaser, and the interest which she purchased can not for that reason alone be protected, then, we claim that as between Mrs. McBain and Daniels, hers is the better and prior equity, and should prevail. Salters v. Everett, 20 Wend. 267; Jennings v. Gage et al., 13 Ill. 610; Calais S. Co. v. Van Pelt's Adm'r, 2 Black. (U. S.) Rep. 372; Selser v. Brock, 3 Ohio St. Rep. 302; Henderson v. Herrod et al., 1 Cush. (Miss.) 434; Watson v. Wells, 5 Conn. 468; Simmons v. North, 3 S. & M. (Miss.) 67; Strang v. Beach et al., 11 Ohio St. Rep. 238; Barr v. Hatch et al., 3 Ohio Rep. 526; Wadsworth v. Wendell et al., 5 Johns. Ch. 224; Brown v. Welch, 18 Ill. 343; Willoughby v. Willoughby, 1 T. R. 763; Mutual Assurance Soc'y v. Stone, 3 Leigh, 218; Grimstone v. Carter, 3 Paige 421; Wing v. McDowell, Walker’s Ch. (Mich.) 175; Block v. Chase, 15 Misso. 344; Williams v. Presbyterian Church et al., 1 Ohio St. Rep. 477; Davis v. Cox, 6 Ind. 401.
    
      M. B. $ B. Waite, for defendants :
    I. The legal title to the property in controversy, is not in McBain.
    
      The power of the sheriff to convey real estate, under a sale upon execution, is a naked statutory power, not coupled with any interest. Every prerequisite to the exercise of such power must, therefore, precede the conveyance, or no title will pass. Williams v. Peyton, 4 Wheat. 77; Doe ex dem Tod v. Philhower et al., 4 Zabr. 807.
    To make title to a stranger under a sheriff’s sale, now, there must be the judgment, execution, levy, sale, confirmation and deed. If either of these prerequisites is wanting, the power does not exist in the sheriff to convey, and consequently no title passes. Swan’s Stat. of 1841, p. 474 sec. 12, p. 475 sec. 15 ; Lessee of Allen v. Parish, 3 Ohio Rep. 187; Wheaton v. Sexton, 4 Wheat. 503; Lessee of Stall v. Macalester, 9 Ohio Rep. 21, 23; Lessee of Curtis v. Norton, 1 Ohio Rep. 278.
    But under the law as it now stands, a sale and deed to a party to the suit, without appraisement, is void and will not pass title. Patrick’s Lessee v. Oosterout, 1 Ohio Rep. 27; Allen’s Lessee v. Parish, 3 Ohio Rep. 127.
    2. But however this may be, the reversal of the order of confirmation avoided the deed of the sheriff, and divested Mc-Bain of all title under it.
    McBain, the purchaser, was a party to the judgment, under the authority of which the sale was made, and as to him the title would be defeated by a reversal of the judgment itself. This distinction between the rights of a stranger and a party, is well settled in this state. Hubbell v. Broadwell’s Heirs, 8 Ohio Rep. 127; Lessee of Walpole v. Ink, 9 Ohio Rep. 142; Irwin v. Jeffers, 3 Ohio St. Rep. 390; McBride v. Longworth, 14 Ohio St. Rep. 351; Lessee of Taylor v. Boyd, 3 Ohio Rep. 352; Swan’s Stat. of 1841, p. 475 sec. 16.
    Here, it is admitted that the legal title had not passed out of McBain when the order of confirmation was reversed. By the reversal it was reinvested in Daniels; or, more properly, it was shown never to have passed out of him.
    II. Unless McBain now holds the legal title, no relief can 'be had against any of the defendants.
    It is claimed, however, on the part of the plaintiff, that if a purchaser at sheriff's sale, whether a party or stranger to the action, holds a title which is apparently perfect, his contracts with, and conveyances to bona fide purchasers, will bind the estate, even though his title should subsequently be defeated.
    To this, we reply: 1. Mrs. McBain does not occupy the position of a bona fide purchaser.
    All contracts between husband and wife are, as a general rule, void. At law they are incapa,citated from contracting with each other. To bring a case within the exceptions of this rule, sometimes acted upon in a court of equity, there should be a bona fide contract as to her separate estate, founded upon a valuable consideration. It must be such a contract as, but for the marriage, could have been sued upon and enforced.
    A purchaser, to be protected in equity, must be one for a valuable consideration actually paid, without notice and free from fraud or collusion, Willoughby v. Willoughby, 1 T. R. 597; 2 Story’s Eq. 717, sec. 1502, note 2. The consideration must be valuable, as contradistinguished from one which is only good or equitable. A good or equitable consideration is sufficient to support an executed contract between the parties, but it will not support an action to enforce an executory contract, or sustain against third persons, a contract which has been executed. 1 Story’s Oontr., sec. 429: 1 Pars. Contr. 358.
    The note and mortgage was extinguished by the marriage.
    As a general rule all contracts between husband and wife before marriage are extinguished by the marriage. 1 Bright’s Husb. and Wife, 18; 2 Story’s Eq., sec. 1370; Walden v. Walden’s Adm’r, 7 Ohio St. Rep. 30; Co. Litt. 264 b. This is the rule in equity as well as at law, except that in special cases, a court of equity will sometimes depart from it in furtherance of the manifest intentions of the parties. But this intention must appear from the nature of the contract itself which is to be enforced. In this case there is no such contract to enforce.
    The money received from the sale of the farm in Michigan also became the property of McBain, when paid to him.
    
      “Where he and his wife united in selling the lands, the proceeds, being personalty, by operation of law became his.” Ramsdell v. Craighill, 9 Ohio Rep. 199.
    The law in this case gave the husband his debt to his wife and the money for the land. Any contracts which he may afterward have made with reference to the debt or the money will have an equitable consideration to support them, but not a valuable one. Mrs. McBain, therefore, is not a purchaser for a valuable consideration.
    She is not a purchaser without notice of the defects in her husband’s title. The errors for which the order of confirmation was reversed are all apparent upon the record under which McBain claimed his title. The appraisement under the execution was part of the record. Daniels v. McBain, 2 Ohio St. Rep. 406. No principle is better settled than that a party claiming title through a record, or through a deed, is chargeable with notice of every fact to which the deed or record leads him. Note to Le Neve v. Le Neve, 2 Lead. Cas. in Eq. 103. And it leads to every fact after which it would put a prudent man upon inquiry.
    2. The title of McBain having been divested by the reversal of the order of confirmation, any rights which Mrs. McBain might have under the alleged contract fall with it.
    3. Mrs. McBain has no equities against the defendants.
    The law declared that the land of Daniels should not be taken from him under the execution, except for a price not less than two thirds the appraised value. McBain undertook to get it for less. The record of his title showed this. Daniels’ claim against him is not an equity. He does not claim by contract or in any respect under McBain. If he has any rights at all, it is because the title of McBain has been defeated. His right is the legal one to defeat the title of McBain if he can.
    But if his claim is an equity, then it is the elder one, for it arises, not out of his proceeding to set aside the title of McBain, but out of the legal fraud of McBain in attempting to deprive him of his land without paying for it two thirds its appraised value. It dates, therefore, from the time of the fraud.
    By his proceeding to reverse the order of confirmation he has clothed his equity with the legal title. No principle is better settled than that such a title holds against any junior equity.
    4. Daniels is not estopped by the proceedings for partition. “ It is well settled that such a proceeding does not decide title or create any new title. It barely dissolves a tenancy in common, and leaves the title as it was, except to locate such rights as the parties may have respectively in distinct parts of the premises, and to extinguish it in all others.” Tabler v. Wiseman et al., 2 Ohio St. Rep. 211. Daniels could not have appeared in that action and contested McBain’s title. He had no interest in the property, if McBain had. The other tenants in common probably have the right to hold him to the partition as made, but McBain can not rely upon the proceeding as confirming his title.
    But even if Daniels is estopped by the proceeding, it will only have the effect of establishing that the sheriff’s deed did convey title to McBain a party, without appraisement. If this is the case the deed showed a prima facie legal title in McBain. This legal title has since been defeated by the reversal of the order of confirmation. Certainly the finding that McBain then had the legal title to the premises, will not estop Daniels from instituting proper proceedings to defeat that title, or when it is defeated, from setting up his own re-vested title.
   Welch, J.

The plaintiff asserts that she has the equitable title to the lands in controversy, and asks a release from those having the legal title. The first inquiry is, Where is the legal title ? Is it in McBain, or is it in Daniels and those claiming under him? In other words, Did McBain acquire a good title by the sheriff’s deed, made under an order of confirmation which was afterward reversed ? Or, if he did, Was it defeated by the reversal before he made a legal conveyance to a third party ?

The statute in force at the time was that of 1841. (Swan’s Stat. 474). It provides (sec. 12), that no lands shall be sold for less than two thirds of the appraised and returned value of the inquest.” Sec. 15 provides that “ if the court shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity with the provisions of the statute, they shall direct the clerk to make an entry on the journal that the court are satisfied of the legality of such sale, and an order on the sheriff to make to the purchaser a deed.”

Before the passage of this act it had been held, that in order to support a deed by the sheriff, to a stranger, it was necessary to show a judgment, levy, and sale, and that a good title would pass without any appraisement. It was, perhaps, to guard against the evils resulting from this power of the sheriff, that the act of 1841 was passed. Since the date of that act it has been uniformly held that a confirmation is indispensable to the validity of the deed. Had the confirmation in this case remained in force, although upon its face erroneous — the sale being made for less than half of the appraised value of the land — and had the sale been made to a stranger, instead of a party, no doubt a good title would have passed. But the confirmation having been reversed and set aside becomes a nullity, and the case ’stands, at least as to parties, as though no confirmation had ever been made. The deed was to a party, the sale was irregular and illegal, and there was no valid order of confirmation or for a deed, and no valid conveyance to a third party by the purchaser, and it seems to us clear that no title passed by the deed. The rule, that a reversal of the judgment does not affect the title of the purchaser, does not aid the case, because that rule applies only to a purchase by a stranger. And there seems also good ground for the distinction made by the counsel, between the judgment and the confirmation — that the former goes to the general authority of the officer to make a sale, while the latter is the evidence of the fact that the particular sale was legally made. The purchaser, when a stranger, has no control over the judgment, being no party to it; but he is a party to the sale, and ought to be held responsible, to some extent, for its regularity. It is enough here, however, to say that the purchaser was hot only a party to the sale, but also a party to the suit, and that no legal rights had been acquired by third parties before the reversal.

■ We are equally unable to see how the proceeding in partition could have the effect to impart any title to McBain. “ It is well settled,” says this court,. Tabler v. Wiseman et al., 2 Ohio St. Rep. 211, “ that such a proceeding does not decide title or create any new title. It merely dissolves the tenancy in common, and leaves the title as it was, except to locate such rights as the parties may have in distinct portions of the premises, and to extinguish it in others.”

It is claimed, hpwever, that Daniels, and those claiming under him, are estopped by the proceeding in partition, form setting up his title. It is sufficient answer to this claim to say, that Daniels had no actual notice of the partition, and was not in fact a party to it, otherwise than by publication of notice.

If, then, the legal title, is not in McBain, but in Daniels and those claiming under him, it remains to inquire whether Mrs. McBain, and the plaintiff as her. heir, have shown such a«right in the premises as entitles them to the aid of a court of equity, to compel the conveyance of the legal title by Daniels and his grantees.

The case can not be brought within the principle of Taylor v. Boyd, 3 Ohio Rep. 353, because Mrs. McBain admittedly had -no legal conveyance from her husband. She had, at most, only a contract for a conveyance. If the legal title was in her husband at the time of his attempted conveyance, it never passed to her. It is unnecessary, therefore, to decide what would have been her rights, had the conveyance from, her husband been a legal conveyance, or what, would have been the effect of the reversal of the order of confirmation upon her title thus acquired.

We deem it also unnecesary to inquire what would be the rights of Mrs. McBain, as between her and Daniels, if she stood before us in the character of a purchaser for a valuable consideration without legal title. We think .the evidence fails to show that she was such purchaser^ Taking the whole testimony together, it seems to us that the attempted conveyance to her was voluntary. The money which was the alleged consideration of the intended conveyance, had become the property of the husband in virtue of his marital rights. The mortgage debt had become his by the marriage, and the mortgage was thereby extinguished. The purchase money of the Michigan farm had been reduced to his possession, and invested and used in the prosecution of his own business. The most you can say is, that he reduced the moneys and choses of his wife to possession, with the intention to compensate her therefor, by the conveyance of the land in controversy. There was no contract to that effect, and the conveyance was therefore voluntary on his part.

The legal title then being in Daniels and his grantees, who set up the defense, and not in McBain, who makes no defense, and the plaintiff’s mother having at most a mere equity, which she acquired as a volunteer, it seems clear that no conveyance should be decreed.

The petition is, therefore, dismissed with costs.

Brinkerhoef, C.J., and Scott, Day, and White, JJ., con curred.  