#### CARTER *v.*COOK AND McGIFFIN.

Fraud — trust—refusal to execute contract — rescinding contract — surrender—seeking and • doing equity.

Cook holding land upon a contract of purchase, sold to Carter on time, and put him in possession ; Carter refused to pay up his contract, or pay off the original purchase, and the vender threatened suit; McGiffin, at the instance of Cook, stepped in and agreed to advance the money, and take the title to himself, to secure it for Cook; Carter became his tenant, refused to execute with him the contract, but afterwards surrendered it to Cook at a stipulated price, for which he got judgment against Cook, who is insolvent. This contiact is not fraudulent on the part of McGiffin, and Carter has no equity to be charged with his debt on the land; all the lien he had he surrendered to Cook.

Although, in such case, a trust may have been created in McGiffin to the extent of Carter’s right, he'discbarged the trust by refusing to perform the contract in the first instance, and in the second by his surrender to Cook.

There is no fraud in such case, by holding out Cook as the owner, to induce a credit to him affecting McGiffm’s right.

A party that seeks equity must do equity.

In Chancery. The facts of the case are these: Cook contacted with one Beam, who held under contract- with Smith, for one hundred and twenty acres of land, at about $¡1320, in payments, went into possession of the land, and paid on his contract about $¡350. He then entered into a contract with the complainant, Carter, by which he agreed to sell the land to him, on payments and put him into possession. Cook was unthrifty, and under judgment for the purchase which Carter refused to pay or to secure, and finding it difficult to keep along with his family or secure the land, applied to McGiffin to assist him, and to save something for the family. Mc-Giffin at first refused, knowing Cook’s habits; but, finally agreed, *444in order to secure the benefit of the contract with Carter, or the land for the support of Mrs. Cook and her children, that he would make advances, pay for the land, and take a title absolutely to himself, clear of any claim of Cook in law or equity. McGiffin notified Carter, that his object in purchasing, was, to compel him to complete his bargain with Cook, in good faith, for the benefit of the wife and children, or to secure to them the land for a home, and that he would allow no more payments made to Cook; Carter then refused to fulfil the agreement, or to surrender. There was then due Smith, who held the title of the land, about *$200,*the payment of which he was pressing; Carter refused to pay, and McGiffin paid and took the title to himself. Shortly after this, as Carter had been- in possession of the farm' for about eight years, and had several tiroes refused to complete his contract, McGiffin brought ejectment and recovered; and then Carter took a lease from him. He then agreed with Cook to rescind the contract for the land. After this, the possession was surrendered by Carter to Cook, without consulting McGiffin or giving him any notice, until all was done. Cook and Carter disagreed about the compensation Carter should receive, upon the rescisión of the contract, and *arbitrated*the matter. An award was made in favor of Carter for $477 11, on which he obtained judgment against Cook, took .out execution and sold all his personal property. There is still a part of the .judgment unpaid, and Cook is insolvent. There is no proof of the exact contract between Carter and Cook.

H. *Curtis,*for the complainant,

insisted that as Cook paid part of the purchase money of the land, McGiffin took the title as his trustee, and so holds, subject to Cook’s debts.

2. That Carter’s advances on the purchase, were a lien on the land, which this Court will enforce.

3. That the whole transaction between Cook and McGiffin was fraudulent and void.

*C. P. Goddard,*contra,

admitted McGiffin took the title, subject to Carter’s equity, to complete the contract; and that Carter might have paid Smith, under his contract with Cook; but, as he had refused to fulfil the contract, and afterwards rescinded it, and took Cook’s responsibility, he could not now assert it as a lien on the land. The allegation of fraud in McGiffin, either in fact, or in law, is not supported by the evidence.

Wright, J.

1. Had Carter any lien on the land for his payments on account of the purchase? If there was a valid contract between Carter and Cook, he undoubtedly had a lien for the money paid upon *445the purchase before the transfer to McGiffin. McGiffin comes in to the title while Carter was in possession claiming right, and is chargeable with notice to the extent of his equity — no farther. What was that equity? It could, in the nature of things, only be a right to a conveyance according to the contract. What the contract really was, is not disclosed to us. Did he comply, or show a disposition to comply? Both before and after McGiffin took the title, he refused to pay for the land or discharge the claim of Smith, so that Smith was threatening to sell the land to make the money. McGiffin saved the property from sale. Did' Carter then comply with his contract? No, he still refused; and McGiffin resorted to an ejectment as the best mode of compelling payment. Carter then became McGiffin’s tenant, and took from him a lease. After this, without regard to his landlord’s interest, and against a positive notice not to deal farther with Cook in the premises, he surrendered the contract to Cook, and took his personal responsibility for the advances. If before that time the land was responsible to him when he completed his contract, or was liable for his advances against a person coming into the title with notice of his equity, did that responsibility continue after he voluntarily surrendered it to Cook, and took his personal liability in its stead? We think not. His claim now, is not to enforce the original contract as a lien on the land, but to enforce his new contract with Cook, made after McGiffin’s right attached, with full notice of McGiffin’s rights, and in opposition to them. The award is not attached as a charge upon the land, in any view we take of the case.

2. Did a trust result from this purchase by McGiffin to Cook? As a general rule where one pays for land, and the title is taken to another, a trust results to him who paid the money. If Cook paid the money, a trust resulted to *him.*His interest was passed to McGiffin before the award. McGiffin is willing to complete the contract, and in a condition to do so if Carter will make it known and perform his part; but Carter refuses, and asks this Court to make the new contract of Cook to pay him money of subsequent date to McGiffin’s rights, a charge upon the land. This we are not disposed to do. If he seeks equity, he must show a disposition to do equity himself. We cannot aid him in any combination with Cook, to defraud McGiffin. The utmost he can claim is to be let in to perform his original contract — that he does not ask.

3. Is the transaction between McGiffin and Cook fraudulent as against creditors? McGiffin’s object appears to be to secure a home for his sister and her children, against the *future*improvidences of *446the husband and father. It did not contemplate cutting off any one then a creditor of Cook, or the protection of the property from his existing creditors; it had no object of injury to any one, and intended no fraud in law or fact. Why, then, was it not lawful? McGiffin , was ready to perform Cook’s agreement, but Carter refused, and stood out until the land was about to become forfeit, and then, and not before, did McGiffin take the title to prevent a forfeiture. After this he was willing to comply with the contract, but Carter still refused. He then transferred his interest to Cook, relinquished to him, and took his responsibility for the consideration of the surrender. For this claim upon Cook, originating long after McGiffin acquired his right to the land, and got up in direct opposition to his interest, he asks a court of equity to charge upon the land; and to let in this equitable claim, he prays us to regard McGiffin’s purchase fraudulent. Whatever claim might result in favor of one who had been deceived into a credit of Cook by the appearance of ownership in the land resulting from mere occupancy by the family, even that pretext is not found to favor the complainant. McGiffin’s purchase was not made to defraud creditors generally or Carter in particular. One of its objects was to fulfil Carter’s contract, which he refused to execute. *The lien he had, he first refused to*assert, and then voluntarily surrendered. Even if McGiffin were held a mortgagee, and Carter claimed to be let in to redeem, he would be required to pay him what he advanced, or if refused, to have brought it into court. That he has not chosen to do, nor even express a willingness to do.

The bill is dismissed with costs to the defendant McGiffin.