# Lessee of Smith v. McCann

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
United States Supreme Court
65 U.S. 398
Lessee of Smith v. McCann
THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Maryland.
The facts are stated in the opinion of the court.
It was argued by Mr. Davis and Mr. F. L. Smith for the plaintiffs in error, and Mr. Campbell and Mr. Malcolm for the defendants.
The points on behalf of the plaintiffs in error were the following. The counsel contended that the instruction given by the court below was erroneous, and cited these authorities:
McMechen v. Marman, 8 G. and J., 57, 73, 74, 75.
Jackson v. Graham, 3 Caines's R., 188.
Jackson v. Scott, 18 Johnson's R., 94.
Jackson ex dem. Cary v. Parker, 9 Cowen R., 85.
Jackson ex dem. Ten Eyck v. Walker, 4 Wendell, 462.
Culbertson v. Martin, 2 Yeates, 443.
Remington v. Linthicum, 14 Peters, 84.
Young v. Alger, 3 Watts, 223, 227.
Jackson v. Bush, 10 John., 223.
In ejectment against a defendant in an execution, or those claiming under him, the purchaser of land at a sheriff's sale, having complied with the terms of sale, is entitled, as plaintiff, to recover the possession against said defendant or his alience, and the defendant will not be permitted to controvert the title by showing it to be defective, or by setting up a better outstanding title in a third person.
Remington v. Linthicum.
McMechen v. Marman.
Lessee of Cooper v. Galbraith, 3 Wash. Cir. Ct. R., 546, 550.
Jackson v. Chase, 2 John. C. L. R. 82.
Jackson v. Pierce, Id., 221.
Jackson v. Deye, 3 John. C. L. R., 422.
Bayard v. Colfax et al., Cox's Digest S.C.. U.S., 272, sec. 41.
Jackson v. Davis, 18 John. C. L. R., 7.
Jackson v. Van Slyck, 8 John. C. L. R., 486.
The trusts in the deed from Brown and wife to Richard D. Fenby being fraudulent and void, the deed passed an absolute title to Fenby of the land in controversy.
Bacon's Abr., vol. 2, Bouvier's Ed., 298, 305.
Hughes v. Edwards, 9 Wheat., 493.
That the terms of trust, in the deed from Brown and wife to Fenby, not being established by any evidence, aliunde, the said trust can be considered as existing, if at all, only from the date of the deed.
Hill on Trustees, top pp. 86, 87, note 2.
The counsel for the defendant in error made the following points:
1. This action of ejectment being brought in Maryland, and the common law in that State being unchanged, the plaintiff must show, in evidence, a legal title to enable him to recover. The Maryland statute, (1810, ch. 160,) which authorizes a sale on execution at law, of equitable estates, does not chage an equitable into a legal title, and the purchaser must assert his rights in their appropriate form.
Carroll v. Norwood, 5 H. and J., 155.
Wilson v. Inloes, 11 Gill and Johnson, 351.
Hammond v. Inloes, 4 Maryland, 138.
2. To show themselves seized of a legal title, the plaintiffs in error give in evidence the deed from Brown and wife to Fenby, conveying the property which was levied on under the judgment against Fenby, and sold to the plaintiff's lessor. This deed, (Rec. 25,) which conveyed the legal title to Fenby, conveyed it to him in trust for his wife and children, and gave him but a dry legal title, with no beneficial interest in himself, and so vested nothing in him which could be attached or taken in execution upon process against him.
Houston v. Newland, 7 Gill and Johnson, 493.
Aware of this insuperable difficulty, the plaintiffs in error seek, by a charge of fraud against the deed, to extinguish the trust, and thus convert the legal ownership of Fenby into a beneficial one. But if the deed be void against creditors, by reason of the trust for Fenby's wife and children, the statute of Elizabeth avoids it in toto, and the plaintiffs in error cannot, at the same time, set it up and destroy it. If the deed be wholly void, for fraud or any other cause, then the foundation of the plaintiff's title fails, for without it Fenby had no estate. If it be relied on as the source of Fenby's title, it must be taken as it is.
Mackie v. Cairns, Hopkins, 405.
5 Cowen, 580.
5 Shepley, 369.
4 Yerger, 164.
2 Sanford C. Rep., 630, Goodhue v. Berry.
6 Gill and Johnson, 231, State v. Bank of Maryland.
Mr. Chief Justice TANEY delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse