#### Brow*n v*. Graves.

From Caswell.

A. made a deed of trust to satisfy several creditors; after this, part of the property is levied on and sold under execution : The sale passes nothing’. A. had not such an interest as could be levied on under our act of 1812, subjecting equitable interests to execution.

This was an action of *trover*to recover the value of two oxen. The writ issued October 23, 1823, and the following appeared to be the case.

The Plaintiff claimed title to the property under a deed of trust executed by *Zachariah Groom*to *William*Russel, for the use of *Philip Pierce*(who was *Groom9s*security) dated 22d of November, 1821, and by the trustee, he proved on the trial, that on the 11th of Februai*y, 1822, a sale was made under the trust deed, at the house of *343*Groom;*that the land mentioned in the deed sold for §>280, the mare for S32, the oxen (now in controversy) for g32. These articles, except the mare, were purchased by Plaintiff, who retained the purchase-money in his hands *;*the mare was purchased by some other person, and the money arising therefrom was paid over to the Plaintiff.— There was also a quantity of tobacco, mentioned in the deed of trust; this liad been carried off by *Groom*and sold, except some trash tobacco, which was bought by the trustee for 82. — At the time of sale, the Plaintiff and *■Fierce*forbid *Swift*<§• *Martin*(to whom the debts mentioned in the deed of trust were due, and for which debts *Fierce*was *Groom’s*security) to bid for any of the property, unles they paid the money down for the bid, and stated that if they bid, the amount bid, should not be paid by their entering it as a credit on the sums respectively due to them from *Groom.*

It also appeared, that before this sale, Defendant had informed the trustee, that he had purchased these oxen at a public sale made by virtue of an execution which he had against *Groom;*that at the sale Defendant claimed them, and requested the trustee to sell the other property mentioned in the deed first *$*that he mentioned it to the Plaintiff and *Fierce,*who insisted on his first selling the personal property, and he did so.

*Groom*svvore that he and *Fierce*agreed to sell the property before the debts to *Swift <§• Martin*became due; that he owed the Plaintiff by bond about $109; that he did not know what had become of the money Plaintiff received from the trustee, for which the property was sold, nor had he ever agreed that Plaintiff should apply it in satisfaction of his debt of g>109; that the steers remained in his possession two or three days after the sale, Plaintiff on the day of sale telling him to keep them until he, Plaintiff, called for them, and that they were taken away by Defendant. He further proved, that, he remained in possession of the land, from the day of sale up to the time of trial, and it did not appear that he was *344to pay any rent for the place. It farther appeared, that the oxen were in *Groom’s*possession up to the 11th of February, 1822.

*Swift*proved that the Plaintiff had a bond on him, and after the sale, on the same day, he and the Plaintiff agreed, that the claim he had against *Groom*and *Pierce,*should be credited on his bond to Plaintiff,• and they were afterwards so settled. He also stated, that he had never called on *Groom*or *Pierce*for the money due him before the 11th of February, 1822.

It also appeared that *Martin*never made application to have his debt paid before or at the time of sale.

The Defendant insisted that Plaintiff could not recover, because,

1. The sale was fraudulent, it having been made to hinder the collection of *Groom’s*debts, upon which judgments and executions had been obtained.

2. That the trustee by the terms of the deed, had no authority to sell before the debts became due.

3. That Defendant’s purchase under execution, on the 29th of December 1821, before the sale by the trustee, gave him the title.

4. That if Defendant had not the legal title it was in the trustee, and therefore Plaintiff could not recover.

Defendant then offered evidence of his having regularly purchased at execution sale on the 29th of December, 1821, under an execution dated 18th of December, 1821, issuing on a judgment obtained December 15,1821.

To the charge of the Court on the question of fraud, no exception was taken. His Honor Judge Norwood further charged, that although *Pierce*could not direct the sale of the property before he was called on for the money, yet that *Groom*might direct it before the money became due on the judgments mentioned in the deed, notwithstanding that at that time there might be other judgment creditors who had executions; and that if ho directed the trustee in this case to sell on the 11th of Feb- ■ ruary 1822, it would be valid.

*345And further, that the sale under execution of Dec. 29, 1821, having been made before the debts mentioned in the deed of trust had been satisfied, was unauthorised by law, and passed no title to the purchaser; that if the debts mentioned in the deed had been satisfied by a sale of part of the property, the remainder of the property would then be subject to execution; but not otherwise.

Verdict for Plaintiff, new trial refused, judgment and appeal.

*Badger,*for appellant.

*Hogg,*contra.

Hekbersok, Judge. —

This transaction, upon its face, bears evident marks of a fraudulent contrivance between *Graves, Bussell Groom,*to give to *Brotan*a fraudulent preference in the payment of the debt which *Graves*owed to him, or to cause *Graves’s*property to rest in him in fraud of creditors. If the object had been to give *Brown*a preference, and that object bad *been fairly,*and with good faith effected, the law would not'have annulled it. The fraudulent design is evidenced throughout the whole transaction; the expediting the sale at the instance of *Graves,*and more especially by prohibiting the *cestui que trust*under the deed, by virtue of which the sale was made, from bidding at the sale; they could not have been objected to as not being good bidders, for the money was coming to them : The only object which can properly be assigned, was to prevent competition, and thereby enable *Brawn*to purchase the property at a reduced price; and if such was the object, of which a Jury were he proper judges, the law pronounces the sale to be fraudulent; yet as the sale was made by the trustee, who had the legal title, and at the instance of *Brown,*the property passed as to all, but those whose rights or interests were, affected by the sale. The Defendant does not claim under the trust deed, cither as *cestui que trust,*or purchaser, it is therefore not necessary to decide whether, if he stood in that capacity, he could avail himself of the fraud to *346defeat the sale. He claims as a purchaser at a Constable’s sale, under a Justice’s execution against *Graves,*issued and levied after the sale of the deed in trust; the qUCstion therefore is, had *Groom,*at the time of the levy and sale, or at the sale, such an interest as could be sold under that execution ? If he -had not, the Defendant is a mere stranger, and however much to he regret-ed, appears in the character of an intermeddler, not though in the opprobrious meaning of that term — it appears that he has acted honestly. But if such be the case,' that is, if the property was not subject to the execution, he cannot avail himself of the fraud practised by *Brown*j and others — if it be a fraud. I believe no where can be found a more lucid and satisfactory opinion upon the subject than the one given by Chief-Justice Spencer of New-York, in the case of *Bogert*v. *Perry others, 17 Johnson,*351, — to tliis therefore I refer. They have in New-York, as regards.this point, a statute similar to ours of 1812, both, in substance, taken from the statute of Charles.— It is evident, that independent of that statute, *Groom*had not such interest as could be sold under an execution at law *;*he had nothing but a mere equity, at most a mixed trust, or a chose in action, neither of which an execution at law could affect. Our act provides, that it may be lawful for the Sheriff, or other officer to whom a writ shall be directed, at the suit of any person upon a judgment then had, or hereafter to be had, to so make and return execution to the party suing, of all the goods, lands, &c. as any other person shall be possessed or seised in trust of, for the person against whom the execution issued, and that said lands and goods sliail be held by the purchaser at execution sale, free from and discharged of thp title, and incumbrances of the trustee. These are not the words, but it is the substance of the act. If there had been a doubt upon reading the first part of the statute, whether a mixed trust such as this could be sold, where part is held for one person and one purpose, and part for another person and another purpose, I thiuk the *347doubt would have boon removed by that branch of it which divests the seisin out of the trustee, and vests both his estate and the estate of the *cestui que trust*in the purchaser. It could not be designed by theLcgislaturc to word this wrong, and it will not be attributed to them, when there are proper subjects on which the act can operate, and coming more within its bounds — a person seised or possessed in trust for another, not one seised in trust for one for one purpose, and to another for another *purpose;*where the formal and nominal title is in one in trust for another. By confining the statute to such cases, no injury is done, for the trustee had no other duties to perform than to permit the *cestui que trust*to enjoy the property. There is no possible way to reconcile the statute to any thing like common justice, but to say that the estates shall be apportioned, and ail shall be taken out of the trustee, and with the trust estate vested in the purchaser, except what will enable the trustee to perform the trusts to others : in this case, it would leave an estate in the trustee of which I cannot well conceive. What is it ? As much as will pay *Tierce?*What then is the nature of the estate which the purchaser has ? He has *Groom’s right*to the surplus, and the trustee’s legal title to the property out of which tisis surplus is to be raised. If the trustee'could find property which would bring the debt to *Fierce,*and no.more, he might sell'it, and then the balance of the property in kind would belong to the purchaser at execution sale: soil as much as will pay *Fierce,*the balance is the purchaser’s — the trustee, has nothing to do with it, both legal and equitable title is in the purchaser. The purchaser might say to him, take your pound of flesh, but not one pennyweight more. How the purchaser at the trustee’s sale stands, who purchased one article which overwent the debts of the remaining *cestui que trust,*I know *not;*as to the amount of the debt the sale was good, and bad for the balance: for that power which he once had to sell, being dependant on his title, was taken from him — as to part of the article the *348purchaser would have a right to it, and none to the other I cannot see the extent to which it may be carried. By such sales, speculation would be encouraged, but would be placed upon unequal grounds. One might have correct, and another incorrect information. I think that the Legislature intended to leave such interests (entirely untouched by the act) to the jurisdiction of a Court *oí' Equity,*where the property itself would be sold, and the money divided according to the rights of tise parties.

This is a bard case on the Defendant; but I cannot see how he can prevail in this action.

By the Court,

Judgment Aefirmed.