Pitts vs. Bullard.

JOHN M. GILES for the plaintiff in error.

The principal question presented by the bill of exceptions in this case is, whether Henry L. Sims had such an interest in the premises in dispute as was vendible under execution.

The evidence shows that Sims had contracted for the land and paid the full amount of the purchase money, that the contract was in writing, signed by McWhorter, the drawer of the lot, and expressed the payment of the consideration money.

By virtue of the statute 29 Charles II., chap. 3, sec. 10, lands held in trust may be sold under execution against the cestui que trust. Prince 916; 1 Saund. U. & T. 272; 2 Black. Com. 337. A resulting trust, it has been held, is within this statute. Foote vs. Colvin; 3 Johns. 216.

After a valid contract of sale of land, and performance by the purchaser of his part of the agreement, the vendor is undoubtedly seised in trust for the vendee.

Judgments obtained afterwards against the vendor will not, in equity, bind the estate. Finch vs. Earl of Winchelsea; 1 P. Will.

278; 4 Kent Com. 154.

The Court below held, that in order to create a trust estate liable to be sold under execution, there must be a conveyance by deed at the time of raising the trust. But this is certainly erroneous; for the Statute of Frauds clearly recognises the validity of trusts declared in writing without deed, and of resulting trusts without writing. 1 Saund. U. & T. 316.

The 10th sec. of the Statute of Frauds obviously includes all kinds of trusts, where the entire beneficial interest is in the cestui que trust, and the naked formal legal title only, in the trustee. The manner or form in which the trust is created or expressed is matter of evidence merely, and does not affect the nature of the interest.

When this section of the 29th Ch. II., c. 3, is compared with the 27th Henry VIII., c. 10, it will be perceived that the language is similar, 2 Black. Com. 333, and should receive a similar interpretation. Before the statute of Henry VIII., "for transferring uses into possession," a bargain and sale of land was only a kind of real contract, whereby the bargainor agreed, for a pecuniary consideration, to convey the land to the bargainee. 2 Black. Com 338. This raised a use, which, before the Statute of Uses, was similar to a trust estate now; it was recognised only in the Courts

Pitts vs. Bullard.

of Equity. Since the statute, it operates to convey the legal estate if the subsequent statute of 27 Henry VIII., c. 16, is complied with, which requires the bargain and sale to be by indenture, and enrolled, etc., in order to pass the legal estate. A contract of sale, though reduced to writing, and the purchase money paid, is not effectual, under the Statute of Uses, unless it is contained in a deed enrolled according to the requisitions of 27th Henry VIII., c. 16. But it vests in the purchaser a trust estate, and that trust estate is as clearly within the 10th section of the Statute of Frauds as an use raised by bargain and sale, is within the 29th Henry VIII., c. 10. There is no statute, and no rule of law, requiring the contract to be under seal, in order to vest a trust estate.

The doctrine that the interest of the mortgagee, before entry or foreclosure, is not liable to levy and sale under execution, was relied on in the Court below, as being inconsistent with the position assumed by the plaintiff in error. But it is really not so. The mortgage in form conveys the legal estate; the mortgagee is trustee the mortgagor, cestui que trust; the latter having an equity of redemption cognisable formerly in the Court of Chancery only; but, notwithstanding the form of the conveyance, the courts of law in this country treat the mortgagor as owner. His interest is vendible under execution, and the mortgagee has only a chattel interest, which cannot be sold under execution. 4 Kent Com. 160.

In the case of Bogart vs. Perry, 1 Johns. Ch. R. 52, Chancellor Kent distinctly recognises the principle here assumed. The case was carried, by appeal, to the Court for the Correction of Errors. S. C. 17 Johns. 351. Spencer, Ch. J. of the Supreme Court, delivered the opinion, and he, in still stronger terms, recognises the doctrine, that if under a contract of sale of land, reduced to writing, the purchaser has paid the entire consideration money, the vendor holds the land in trust for the purchaser, and that the interest of the purchaser, in such a case, may, under the 10th section of the Statute of Frauds, be sold under execution. See also Jackson vs. Bateman. 2 Wend. 570. See also 4 Kent C. 308, n. (a); Ibid 437, where it will be perceived that, since these decisions, the N. Y. revised statutes have prohibited the sale under execution of the interest of a vendee, who holds a contract of sale. If this enactment extends to a case where the contract has been fully performed by the vendee, then it is a recognition of the correctness of the position here taken.

Were the law otherwise, great frauds might be committed by

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debtors upon their creditors, by buying lands, paying for them, and then merely taking an agreement to convey, from the vendor,

In this case there was obviously no injustice done to Mc Whorter by the sale of Sims' interest. He had nothing, claimed nothing, and conveyed nothing to Bullard but the mere naked legal title, and this he held subject to the direction of Sims.

And what right has Bullard to complain? He stands in Sims' shoes. He, in form, obtained a conveyance from McWhorter, but paid him nothing therefor. He obtained all the right he had from Sims, and there is no evidence that he paid Sims a valuable consideration; and, if he did, he stands upon no higher ground than other purchasers of property liable to judgment and execution. Besides, he had actual notice of the judgment and execution against Sims, of the sale under them, and of the possession of Pitts before he obtained a conveyance from McWhorter. He is therefore not protected by want of notice. 4 Kent C. 180.

And as there is no evidence of payment of value by Bullard to Sims, except perhaps the declaration of Bullard himself, it may be considered a case of resulting trust. Bullard obtains a conveyance to himself of land, for which Sims had paid the full amount of the consideration money; this would be a case of resulting trust in favour of Sims.

But the Judge charged the jury, that even if Sims had an interest subject to be sold under execution, the sale of it only gave the purchaser a right to go into equity for a conveyance. But the statute intended to make the trust estate, when sold under execution, the legal estate, and it declares, that it shall be freed and discharged from all incumbrance of the trustee. It operates in this respect precisely as the statute 27 Henry VIII. c. 10 does upon uses, by virtue of which the cestui que use becomes the legal owner.

ELI WARREN and Wм. P. GREEN, for the defendant in error.

C. B. STRONG, in conclusion, for the plaintiff in error, in his argument cited and commented upon the following authorities, in addition to and with those cited by his associate MR. GILES. Hill on Trustees, 272, 273; Brown vs. Graves, 4 Hawks, 342; Richards vs. McKie & Vaughan, Stat. Eq. R. S. C. 184; Lynch et. al. vs. Utica Ins. Co. 18 Wend. 236.

Pitts vs. Bullard.

By the Court-LUMPKIN, J. delivering the opinion.

John McWhorter, one of the lessors of the plaintiff in ejectment, drew lot No. 74, in the 1st District of, originally, Muscogee, now Macon County, and some twelve or fifteen years since sold said lot to one Henry L. Sims, for a horse valued at $100, and gave to Sims his bond for titles, the grant not then having issued. Sims afterwards, in 1835, sold the land to William Bullard, and transferred to him the title bond.

An execution in behalf of Smith and Kingley for the use of George Smith, against the said Henry L. Sims and William, H. Underwood as his security, and issuing from Hall Superior Court, September Term, 1834, was levied on said lot of land as the property of Sims, the defendant, and the lot was purchased by Eliab Jones, and the sheriff's titles executed to him on the 22d day of July, 1837, the grant from the State having issued about one month before the sale, to wit, on the 27th day of June, 1837. Jones conveyed to Jesse Pitts, the defendant in ejectment, by deed bearing date the 25th day of December, 1837. Pitts went immediately into possession, erected a log cabin, enclosed a horse lot, and made some other improvements. Bullard called at the place in the winter of 1837, and, finding Pitts in possession, he applied to McWhorter for a deed, which was executed, bearing date, 18th day of January, 1838, and the bond surrendered up to the obligor. An action of ejectment was now brought in the name of Thomas Goodtitle, upon the several demises of John McWhorter and William Bullard, against Richard Holdfast, casual ejector, and Jesse Pitts, tenant in possession.

And this cause coming on for trial at the April Term, 1847, of the Superior Court of Macon County, was submitted, upon the foregoing statement of facts, to the jury, upon the following charge of Judge Warren, i. e. "That the jury could not regard any equitable title which Pitts might possess; that the legal must prevail against the equitable title; that the title of Sims to the land was not such as to subject it to the lien of the judgment and execution under which it had been sold; that the interest of the purchaser of real estate, although he may have a contract in writing, and the whole consideration money be paid by him, is not subject to levy and sale under the statute of 29 Ch. II. sec. 10, unless a deed, having all the requisites of a legal conveyance, is executed to him,

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or some one in trust for him; that such an estate cannot be sold under execution, and, if it is sold, it only vests an equitable interest in the purchaser which will authorize him to call for the interposition of a court of equity; that a court of law cannot recognise his title.

"That the deed from McWhorter to Bullard was not void, either at common law or under the statute 32 Henry VIII. against the sale of pretended titles; and that, if it was, the title was still in McWhorter, and a recovery might be had in his name."

To all of which charge, counsel for the defendant below, excepted. [1.] We do not think it necessary to discuss in detail all the points insisted upon in the argument for and against the various grounds contained in this charge. In some of them we concur with the presiding Judge. We agree with him in holding, that sitting as a court of law, we can look only to the legal estate, and see whether a legal title has been conveyed through the sheriff's sale to Pitts. If he has an equitable interest only, he must claim it elsewhere. And it is not for us to decide, nor are we even at liberty to presume to think, what a court of equity would or would not do in the premises.

If Henry L. Sims, the defendant in the fi. fa., from the time he bought the lot of land from McWhorter, and paid for it, had such a legal estate as subjected it to levy and sale, then, of course, it was not in his power to have defeated the judgment lien, by the transfer which he made in 1835 to Bullard. And the purchaser at sheriff's sale acquired a full and complete legal estate in the premises.

By the common law in England, a man could only have satisfaction by execution, out of goods and chattels and present profits, of lands. Afterwards, by a writ of elegit, provided by statute, goods and chattels were not sold, but appraised and delivered to the plaintiff. If these were not sufficient to satisfy the debt, then the moiety of the freehold lands of the debtor, whether held in his own name or in trust, were delivered to the plaintiff, till, out of the rents and profits, the debts should be levied.

By the statute of 5 Geo. II., for the more easy recovery of debts in the Colonies, and which is made of force by our adopting statute of 1784, feudal principles are laid aside, and the houses, land, and negroes, and other hereditaments and real estate of debtors, are made liable to execution.

This act is exceedingly broad, and is in the following words :