Under these circumstances, we think it better to adhere to the rule, leaving to the legislature to amend the law, if it requires amendment. The motion for new trial is granted. Columbia, January, 1833 State V. Whitten. HESTER JOHNSON v. DAVID PAYNE. Tried before Mr. Justice GANTT, at Edgefield-Fall Term, 1832. where the inbutee in an undi terest of a distri vided tract of Trespass quare clausum fregit. Pleas: 1. Not guilty. 2. That David Richardson, the lessor of the defendant, is a tenant, in common, with the plaintiff.And, 3. Liberum tenementum, in David Richardson. land, has been The facts of the case, and the points made, are so sale, the fully stated in the opinion of the Court, as to render chaser only acany other report unnecessary. sold at sheriff's pur quires such interest as the distributee had at the time of the sale; a title which he afterwards obtained cannoten fit of the pur distributee,made O'NEALL J. delivered the opinion of the Court. From the view which I take of this case, it will be ure to the benenecessary to acertain, 1st, What title David Richard-chaser. J. J., a son, the lessor of the defendant, has to the land, upon a verbal pur which the defendant has entered? and 2nd, If his ti-chase of a tract tle is that of tenant in common with the plaintiff, has co-distributees, there been an actual ouster established by the ver- in equity was fildict of the jury? of land from his after which a bill ed by two, out of nine of the distributees, for the partition of the land, and the the purchase and or 1st It appears that Molly Rogers, the owner of the land, died intestate, leaving no issue, but nine brothers Court of Equity and sisters, her only heirs and next of kin. The confirmed plaintiff is one of the sisters, and Joshua Johnson, one dered the Comof the brothers of the intestate. At the sale of her cute titles to J.J. personal estate, the land was sold by the verbal con- land was sold unsent it is said of all interested; at that sale. Joshua der executions, missioner to exe Meanwhile, the as the property January, 1833. V. Payne. of J. J. and pur and, afterwards, er in Equity, ac decretal order, pass quare clau one of the distri the tenant of the purchaser at sheriff's sale, part of the land: deed of the Com veyed any inter enure to the be Columbia Johnson became the purchaser. After some time the plaintiff and one of her sisters, filed a bill in the Court Johnson of Equity, for an account of Joshua's administration of the personal estate, and also for partition and an account of the rents and profits of the land. To that chased by the de- bill, Joshua answered relying on the sale made by the fendant's lessor, verbal consent of the parties. The case was referred the Commission- to the commissioner, who reported a large sum due to cording to the the complainants, as well for their shares of the perexecuted titles sonal estate, as for their shares of the proceeds of the to J. J. In tres sale of the land. The Court by a decretal order disum fregit, by rected the commissioner to convey to Samuel Johnbutees, against son, all the interest which Molly Rogers had in the land, or to any person to whom he might direct the who had taken conveyance to be made. The name "Samuel" was obpossession of viously inserted by mistake instead of Joshua, and at Held, that if the December Term, 1831 of the Court of Appeals, the missioner con- mistake was corrected. The complainants issued est, it could not their execution for the amount, reported in their fanefit of the de- Vor, and lodged it in the sheriff's office on the 10th fendant's lessor of September, 1827 : elder executions, at the suit of quired the right Dad Richardson and Francis H. Wardlaw, against time of the sher-Johua Johnson,, were also in the sheriff's office. All purchase e ac these executions were perhaps levied on the land, quired the distri- which was sold under Richardson's and Wardlaw's exJ.J., and became ecutions, as the property of Joshua Johnson, and purmon, with the chased by David Richardson for $53; and on the 1st therefore, this of December, 1828, the sheriff conveyed in the usual action would not form, the land to him. The plaintiff and her sister unless he had received no part of the proceeds of the sale of the land. The plaintiff was in the actual possession of part of the land, and the defendant as tenant of Richardson, took possession of the field which she had cultivated the preceding year, and cut down and inclosed about four acres of the woodland. For this trespass, the action was brought. Pending this action, on the 12th of April 1832, the commissioner conveyed to Joshua Johnson, under the decretal order as corrected by the Court of Appeals, the interest which Molly Rogers had in the land. that he only ac of J. J., at the iff's by that he butive share of a tenant, in com plaintiff; & that, lie against him, committed an Guster. From this statement of the facts, I think it is de monstrable, that Richardson took the interest of Joshua Johnson, as one of the heirs of Molly Rogers in the land, by virtue of his purchase at sheriff's sale, and that this was all which he acquired. Upon the death of the intestate, her land descended to her heirs, and their interest in it was a legal, not an equitable es It is true, this estate might have been defeated by her debts, if she had owed any; or it might have been ended and determined by a sale or assignment in partition. But until divested in some one of these ways, Joshua Johnson had a legal estate in one-ninth of the whole land: This was liable to seizure and sale, under execution. The case of Rabb v. Aiken, 2 M'C. C. R. 118, does not militate against this position. In that case, the land had been assigned in proceedings in partition to three of the heirs, and a sum assessed and directed to be paid to Robert Rabb, whose interest was, subsequent to the judgment in partition scized in, and sold under execution, and purchased by Aiken. It was obvious, that the interest of Robert Rabb as one of the heirs of his intestat was ended and determined by the judent în par VOL. I.-) Columbia, January, 1833. Johnson V. Payne, January, 1833. Johnson V. Parme. Columbia heirs of Molly Rogers, deceased. Did he acquire also, by his deed, any other or greater interest? I think not. For if all the heirs of Molly Rogers, had been parties to the bill in which the decretal order directed a conveyance to be made to Joshua Johnson, still, until it was executed, he had no legal estate in the land beyond the one-ninth to which he was entitled as heir at law. Until executed, his right to the land was a mere equity, and as such, was not liable to execution. For if the proceedings in the case in Equity, be regarded as an assignment by the decree of the Court in partition to one of the heirs of the whole land, on the payment of a sum assessed in favor of the other parties, then, according to the act of '91, the estate would not vest in Joshua Johnson, until the payment of the consideration money. (2 Brev. 103.) And I am disposed to think that under the decretal order, the Court would have held the commissioner justified in refusing to execute the title, upon returning the fact, that the consideration money had not been paid. The decree, however imperative in its terms, is nothing more than an authority to the commissioner to execute the conveyance; for this act he is the agent of the Court, as well as of the parties, and whatever would prevent the Court from decreeing the estate to be absolutely vested, would authorize him, on being informed of the fact, to refuse to execute the title. But if the decree is to be regarded as directing a title to be made, in consequence of a sale, for partition, then, and in that case, the land by the act of '91 is declared to stand "pledged for the payment of the purchase money." (2 Brev. 103-4.) If, after the decree directing titles, but before the execution of the conveyance, it was ascertained that a conveyance would endanger the rights of the distributees to payment, in such a case, I think the commissioner might have refused to execute the title, until the purchase money was paid, and that the Court would have held him justified.These views shew that Joshua Johnson, under the decretal order, had not, and could not have a legal estate, until the commissioner conveved to him in pur - suance of the decree. This was not done at the time the sale took place. The subsequent deed of the commissioner to Joshua Johnson cannot (if it has any legal effect) enure to Richardson's benefit, so as to perfect his title to the whole tract. For he bought, and the sheriff only conveyed to him, the legal estate of Joshua Johnson in the land; his equitable interest to have the conveyance executed, still remained in him. When it was executed, it vested the interest of the other distributees (if indeed it conveyed any thing) in Joshua Johnson, and Richardson's purchase and deed, being already satisfied by the share of Joshua, as one of his (deceased) sister's heirs, it cannot operate prospectively upon whatever future estate Joshua might acquire in the land. But I think the commissioners deed ought to be, and will be treated as a nullity in a proper case, when brought to the view of the Court. It was executed without any demand being made by the said Joshua; he has never as yet accepted it; this plaintiff and her sister, the complainants in the bill in equity, by their counsel, had given notice to the commissioner, not to execute it. His deed under such circumstances cannot prevail even to convey the interest of the complainants in the suit in equity, to Joshua Johnson. So far I have in some measure treated the decree in equity, as if it had been made between and among all the heirs of Molly Rogers, (deceased.) But it appears that none were parties, except Sarah, Hester and Joshua, three out of nine. The decree directs a conveyance of all the interest of Molly Ro gers to Joshua. This the Court had no right to decree from the parties before the Court; it could at most, have only decreed the shares of the complainants to be conveyed to him. This decree cannot, therefore, be set up as a bar to a bill filed by all the heirs for partition; and in such a case, upon its appearing as does now appear, that Joshua Johnson has not paid Sarah and Hester for their shares, under the decree in the former case, there would be no difficulty in the Court, holding their shares in the land pledged for the payment of the sum which Columbia, January, 1833 Johnson V. Payne |