#### WILLIAM THIGPEN *against*JOAB P. PITT, LEWIS BELCHER AND REBECCA BELCHER, HIS WIFE.

Where a debtor makes a conveyance of land with intent to defeat his creditors, and they proceed to have the land sold, treating the conveyance as void, under the Statute, 13 Elizabeth.: one*, who becomes a purchaser and takes a sheriff’s deed has no right to call on a Court of Equity to have the fraudulent deed brought in and cancelled, upon the ground of removing a cloud from Ms title.

(Henderson v. Hoke, L Dev. and Bat. Eq. 119; Ayers v. Wright, -8 Ired. Eq. 230 ; Gowan v. Rich, 1 Ire. *553;*Page v. Goodman, 8 Ired. Eq. 10.

Appeal from the Court ©f Equity, of Pitt county, heard before his Honor Judge Bailey, at Spring Term, 1858.

Joab P. Pitt owning a large number of slaves, for a good consideration, duly executed to his children, Rebecca Pitt and several others, a deed of gift, conveying to them the slaves, Ephraim, Charity, Betty, Jane, Dallas, and thirty-nine others, whose names are set forth in the conveyance, *50reserving to himself a life estate in these slaves, unless he might please to put his children in possession thereof before his death, -which deed of conveyance was duly proven and registered. The daughter, Rebecca, above mentioned, in the year 1834, intermarried with the defendant, Lewis Belcher, and soon thereafter the father, Joab P. Pitt, put into the possession of his son-in-law, Belcher, the five slaves above-named, as his wife, Rebecca’s, share of the forty-four slaves embraced in the conveyance above stated, which he, Belcher, thenceforth used and treated as his own property. The defendant Belcher carried on the business of merchandising from this time up to the year 1850, about which last period he became insolvent. On the 5th of February, 1850, the defendant Belcher made a deed of conveyance in fee simple to his father-in-law, Joab P. Pitt, for a tract of land,, containing about two hundred and forty acres, including the dwelling house, &c., which is particularly designated in the deed: the consideration expressed in this deed is three thousand dollars, which is acknowledged therein to have been paid. No money was in fact paid by Pitt to Belcher for this land, or secured to be paid, and the only payment alleged, was a deed of conveyance of the same date for the 5 slaves above spoken of, from Joab P. Pitt, to the defendant, Lewis Belcher; the consideration mentioned in this conveyance of the slaves is $3,000, and is expressed therein to be paid. On the same day Joab P. Pitt, the father, in consideration of natural love and affection, made a deed for the land thus conveyed to his daughter Rebecca Belcher, the other defendant in this cause.

Lewis Belcher, being indebted to the plaintiff upon dealings through the four or five preceding years,- on the 9th of January, 1850, gave his bond for a balance of $591 43, upon which a judgment was taken, at May Term, 1850, of Edgecombe County Court, and a *fieri facias*issuing thereupon, was placed in the hands of the sheriff of Pitt. At *51the same term of this County Court, one Reclmon Dupree, ■another creditor of Belcher, obtained a judgment for his debt, and a similar execution, issuing upon the same, was likewise placed in the hands of the sheriff of Pitt county. • These two executions were levied upon the land that had been thus conveyed from Belcher to Pitt, and from Pitt to his daughter Rebecca, (Mrs. Belcher,) and being exposed to public sale, was bought by the plaintiff, and a deed made to him by the sheriff for the same, which is the land in controversy. The fact of Belcher’s embarrassed condition was known to Pitt, the father-in-law, at the time of the conveyances, in February, 1850.

The bill alleges, that the deeds made by Belcher to Pitt, and from Pitt to his daughter Rebecca, were fraudulent and void as to him: that the conveyance to the slaves, as consideration for this first deed, amounted to nothing, for that, according to a proper construction, the defendant Pitt had no interest in them; hut that by any construction that might be put on it, he had but a life estate in them, which, considering his great age, was not worth more than $500.

The defendants answer and deny the fraudulent intent; they Say, that, by a proper construction of the deed of Pitt, for the slaves to his children, a life estate was reserved to him, and a contingent interest besides, which they value together at $2,200 — fully, as they say, equal to the value of the land conveyed to Pitt by Belcher.

Joab Ifitt and Lewis Belcher, and his wife Rebecca, are made defendants. Replication was taken to the answer, and proofs, on the various points raised in the pleadings, are filed in the cause, but these, from the view of the matter taken by the Court, are unnecessary to he set forth.

The prayer of the hill is, that the deeds from Lewis Bel-cher to Joab Pitt, and from him to bis daughter Rebecca, may be declared void, and may be decreed to be surrendered for cancellation, or that Rebecca Belcher maybe declar*52ed a trastee, and account to tbe plaintiff for tbe oyerplus iis the value of tbe land in question, after deducting what may have been really paid for the land by her father,, and a general prayer for relief.

Upon tbe bearing of tbe cause below, bis Honor declared tbe deeds above set forth- fraudulent and void, and ordered that tbe same be surrendered' to tbe clerk and master for cancellation, and that Belcher and big wife Rebecca make a deed in fee simple, of all tbe interest they might have in tbe premises; also, that tbe defendants Belcher and his wife surrender possession of tbe land in question to the plaintiff, and that tbe clerk and master enquire as to the*profits, &c., from which decreé the defendants appealed to this Court,

*Biggs,*for plaintiff,

argued as follows

It must be admitted, that tbe deeds made by the defendants are fraudulent. Can a Court of Equity give the relief sought by tbe bill ?

1. Courts of Equity exercise a general jurisdiction *in*eases of fraud, sometimes concurrent with, and sometimes exclusive of other Courts. Story’s Eq.. sec. 184. A Court of Equity has an undoubted jurisdiction to relieve against every species of fraud. Ciiesteritel» v. Janseht, 2 Yes. 15.

2. What a Court of Equity could relieve against, before the passage of a Statute, giving a remedy at law, it can still exercise jurisdiction of. Story’s Eq. see. 377.

3. Discovery of facts by bill, is an important head of Equity jurisprudence, and where the Court has jurisdiction of the subject matter sought to be discovered, having acquired jurisdiction for discovery, will proceed to give entire and full relief. Story’s Eq. sec. 690: CHAMBERS v. Massey, 7 Ir. Eq. 286.

4. If an instrument ought not to be used or enforced, it is against conscience for the party holding it, to retain it. *53'Story’s Eq. see. 698, 699, 700, 702, cases cited in note tc ■sec. 700; Hayward v. Dimsdale, 17 Yes. Ill; Oxley *¶-*Lee, 1 Atk. 625; Hamilton v. Ouhmings, 1 John, cha. •516; Mayor op Colohester v. Lawton, 1 Y. and B. 243; Peirsol y. Elliott, 6 Peter 95.,

5. The rules of evidence in ‘Courts of Law and Equity, are different in cases of fraud:: one acting upon a strong presumption of a fraud, the other requiring it to be proved. Story’s Eq. sec. 190.

6. As the Statute declares fraudulent deeds void, it is said it now becomes-a “dry question of law.” So it would, if, upon their face, they could be so declared; but upon their •face they are *bona fide,*and their *víala fides*becomes an interesting question of fact, frequently requiring the most searching enquiry into the conscience of the party. No adequate remedy can be had at law, for, as the fraudulent ■deeds multiply, the difficulty of enforcing the remedy at law increases.

7. If it be said the fraud was not aimed at the purchaser at sheriff’s sale, but at the creditor, the answer is, it was aimed at any person who should set up title adverse to the fraudulent grantee. It is well established, that a deed declared void as to prior creditors, enures to the benefit of subsequent creditors, and subsequent creditors can seek such declaration in equity; a *fortiori,*if the purchaser represents a prior creditor, must he be permitted in equity to have the same declaration? But, in keeping the possession of a fraudulent deed, who can be injured but the purchaser ?

8. The purchaser at sheriff’s sale represents the creditor, and to some extent, and in some cases, the debtor. He is clothed with all the rights of the creditor. Spence v. Ybl-lowley, Term R, 114. “ He (the purchaser) stands in the shoes of both a creditor and purchaser.” JonNSON v. Caw-thorn, 1 D. and B. Eq.'35; Dudley v. Cole, 1 D. and *B.*Eq. 429.

*549. Tbe policy of tbe law is to encourage purchasers at slieriff’s sale *to*pay tbe highest price, by notifying them that all the Courts will assist in ferretting out a fraud, where a cloud is known. How can it be expected that this policy will be promoted, if the purchaser, in a *Court of*Equity, is to be censured' as a speculator, and there deserves no encouragement? But it maybe that the cloud arises after the-sale, and he who is assumed to be a speculator, may have given a full value.

10. It is admitted,.that a Court of Equity cannot be called on to declare a. deed void which is fraudulent upon its face, (Peiiisol v. Elliott, 6 Peters 95,) nor is there any propriety in ©ailing upon the trustee m equity, to make a conveyance to the purchaser at execution sale, of the estate of the *cestui que*trust, sold under tbe act of 1812, or upon a bargainor to convey to the bargainee, in a deed enrolled under tbe Stat. 27 of Henry 8. In the latter eases, upon their face, the Statute passes the title at law. *Aliter*in our case.

11. It is submitted, that, in our case, the plaintiff being both creditor and purchaser, can maintain his bill," that this Court has recognized and acted upon- the- jurisdiction claimed ; that to deny it is to destroy the concurrent jurisdiction of Courts of Equity and Law, and multiply suits *ad infini-tum.*Toole v. Darden, 6 Ired. Eq. 894. Pearson, J. “ The plaintiff could, without doubt, have reached the land in the hands of the trustee, or of S,” the fraudulent *cestui-que trust.*This was a bill filed by a subsequent creditor and purchaser under - execution sale against the vendee of the fraudulent *cestui quo trust.*See Henderson y. IIokk, 1 D. and B. Eq. 119.

*Moore and Rodman,*for defendant.-

Pearson J.

The decree has a contradiction upon its. face. It declares that the plaintiff, “ by his purchase and *55sheriff’s deed, has a valid legal title,” and then orders the defendants Belcher and wife “to execute a deed conveying the land to the plaintiff in fee simple.” If the plaintiff has the title, upon what ground can he come into a Court of Equity and ask for that which he already has ? So his prayer for a conveyance is inconsistent with the allegations in the bill. Suppose it to ’be true that the deed from Bel-cher to Pitt is fraudulent and void as to creditors; and that the judgment and other proceedings, under which the plaintiff purchased and obtained the sheriff’s deed, are all regular *;*then, according to the plaintiff’s own allegations, he has the title, and the Court cannot give him that for which he asks, because he has it already. A purchaser of a trust estate, under the act of 1812, which gives him the legal as well as the trust estate, might just as well apply to a Court o'f Equity for a conveyance from the trustee : or a bargainee, with a deed enrolled, according to 21 Henry YIII, might as well come into this Court, and pray to have a conveyance from the bargainor. These statutes, *proprio vigore,*pass the title, and supersede all necessity for applying to Equity.

Upon the second argument, Mr. Biggs conceded this point, •and he also very properly abandoned the alternative prayer that the defendant Rebecca might be declared a trustee for the plaintiff, o’f any balance of the value of the land, “ if it shall be found that the defendant Pitt and the said Rebecca .are entitled to any interest therein,” for then it is a mixed trust, not liable to be sold at execution sale, under the act of 1812, and so the plaintiff would take nothing. Page v. Goodman, 8 Ired. Eq. 16; Gowan v. Rich, 1 Ired. Eq. 553. The case is thus narrowed down to this question : A debtor makes a conveyance of land, with intent to defeat his creditors ; they proceed to have the land sold, treating the conveyance as void, under 13 Elizabeth; the plaintiff .becomes the purchaser, and takes the sheriff's deed — has he *56a right to have- the fraudulent deed cancelled, upon the ground of removing a cloud from bis title ?

This is a new question, and we thought it proper to have the benefit of a second argument, Mr, Biggs has applied himself to the subject with his accustomed diligence, during the last six months, but he has failed to satisfy us that there is such an equity in favor of his client. Upon the argument of general principles, it was elear that the matter was too heavy for him to carry, and too weals to carry him: and, taking the entire range of the- English Reports, and all of the United States, his diligence has only enabled him to •find a *single ca \e*in which a Court of Equity has ever entertained such a bill. That case will be noticed below. We will here, however, make this general remark: Considering the infinite number of sales that have been made by sheriffs, and how very desirable it would be, in all cases, for purchasers at such sales to have “ the cloud” removed from their title, the fact that but a single ease can be found in which the aid of a Court of Equity has been invoked for that purpose proves, almost conclusively, of itself, that there is no such jurisdiction.

We will premise also, that, in this case, the purchaser happened to be one of the creditors at whose instance the land was sold. That circumstance does not vary the question. The relation of creditor terminated by the sale, which satisfied the debt so far as this property is concerned, and he now sues in his character of purchaser, and of course the questions are the same as if any other person had become the purchaser.

Although a remedy at law is given to creditors by 18th Elizabeth, Equity still has jurisdiction to protect them against the fraud of debtors. .Story, at page 370 of his Equity Jurisprudence, says: “these cases of interposition in favor of creditors being founded upon the provisions of positive statutes, the question was made at an early day whether *57£hey were exclusively cognizable at law ? or could be carried into effect also at equity ?” The jurisdiction of Courts of Equity is now firmly established, for it extends to fraud, whether provided against by statute or not. Indeed, the remedial justice of a Court of Equity, in many eases arising under the statutes, is the only effectual one which can' be administered; as that of Courts of Law must often fail from the want of adequate powers to reach or redress the mischief. Fontblanque, at page 276, vol. 1, says: “Although regularly, for cases within the statute, relief must be had at law, yet if goods are given to defeat creditors, in such a case, as the gift is not avoidable by the statute, the party may be relieved here ; for this Court determined concerning charities and frauds, long before any statute made concerning the same.”

In cases not within the operation of the statute, a resort to Equity is the creditor’s only remedy : for instance, if a debtor buys property, with an intent to defraud his creditor, and has the title made to a third person, the s tatute does not apply; for to make the deed void, would put the title back in the original vendor, and relief must be had in Equity. Gowan v. Rich, 1 Ired. Rep. 553.

In cases within the operation of the statute, Equity exercises a concurrent jurisdiction on two grounds: 1st. Before the statute, Equity relieved creditors by putting out of their way fraudulent conveyances of debtors. The necessity of resorting to Equity, in all cases, was found to be inconvenient and expensive, and the object of the statute was to give creditors the same remedy, by enabling them to avoid such conveyances by a direct proceeding at law. After some hesitation, it was settled that the remedy given by the statute was cumulative, and did not oust the jurisdiction before exercised by Courts of Equity; it being a rule not to decline jurisdiction because a statute provides a like remedy at law, unless it be expressly taken away.

*582d. The remedy provided by the statute declared the conveyance void: still, the question of fraud or no fraud remaining open at the time of the sale, the property, in conse-sequence thereof, was not apt to bring its full value; so the jurisdiction in Equity might still be beneficially exerted, for by it, a creditor who had a judgment and execution, so as to have a lien, could obtain a decree declaring the fraud, and putting the deed out of the way, and thus the property could be brought fairly into the market, and bring its value — - whereby the creditor would be entirely relieved from the effects of the fraud which the debtor had attempted to practice upon him. Creditors, therefore, have an election either to proceed under the statute and have the property sold under execution and applied to the satisfaction of their debts, or to ask for the relief which is given in Equity.

Our inquiry is: suppose the creditor elects to proceed under the statute, and has the property sold and applied to the satisfaction of his debt, is there any ground upon which the purchaser can apply to a Court of Equity to have the fraudulent deed cancelled ?

Admit the allegation of fraud, and the effect of the aji-plication is to bring into equity a dry question of law. As to the regularity of the judgment and levy, and other proceedings under which the plaintiff jiurchased, the points presented are often very interesting, 'but obuously of such a nature as are fit to be decided by a Court of Law.

The question is, upon what peculiar ground can a pur-ehasor at sheriff’s .sale force upoD a Court of Equity the decision of a pure legal question ? Neither of the grounds upon which a coircurrent jurisdiction is assumed in favor of creditors, has any application to the case of a purchaser at sheriff’s sale. There is no intimation in the books, that such a jurisdiction was exercised before the statute. Clearly, there is no necessity for it, in order to make the property sell for ,a fair price, for the sale has already been consum*59mated, and the purchaser mil hold the property whether it sold for little or much: so the equity cannot he put upon the ground of making the debtor’s property go as far as it can in paying his debts. The rule must be general in its application : Suppose a creditor, by reason of a fraudulent deed, and the sale being forbid, buys for $10, property worth $10,000: has he the same footing in a Court of Equity as if he had, in the first place, filed a bill in behalf of himself and the other creditors, in order to have the cloud removed whereby $10,000 instead of $10 would have been raised for the payment of the debts ? If so, will any creditor hereafter apply until the property has been bought by him for little or nothing ? Equality is equity, and this Court seeks to encourage any mode by which the property of a debtor is rateably distributed among his creditors, and will leave to his remedy at law one, who disregards that rule.

What ground can be suggested in support of such a jurisdiction ? It is said, fraud is involved, and in all matters of fraud, Equity has concurrent, and in some, exclusive jurisdiction. Without stopping to inquire into the correctness of this proposition, so broadly expressed, it is sufficient to say no fraud was practiced upon the purchaser. A fraud was aimed at the creditor ; he avoided it by means of a statute ; and not until it is so avoided, does the purchaser appear upon the scene of action: Indeed he acquires his title, upon the assumption, that the conveyance of the debtor had been nullified by the proceeding of the creditor. It is a strange idea for the purchaser to stop short in a proceeding which had been thus far at law, and turn around and come into a Court of Equity upon the ground that a fraud had been attempted to be practiced upon another person; and the idea becomes absurd when we consider that he comes into Equity and asks to have that done, which a statute has already done.

Again; It is said that a purchaser at sheriff’s sale represents both the debtor and creditor, and has the rights of *60both. This is a general proposition, which is sometimes nsed for the purpose of illustration, but is calculated to mislead when adopted as the ground from which to deduce a position of law. The debtor has no right; for, as against him, tho deed, although fraudulent, is valid.

The right of the creditor is exhausted by his proceeding under the statute, and having the property applied to the satisfaction of his debt; so the purchaser must derive his right from a sale made by the sheriff, in pursuance of a statute which declares the fraudulent deed void as to creditors, and authorizes them to have the property • sold.

Again, it'is said, that although the deed is void, yet its existence “casts a cloud” on the title of the purchaser, and he has an equity to have it removed. It ca,nnót fail to occur to every one, that this complaint about the “cloud,” comes with an ill grace from the purchaser. The effect of it is to injure the creditor, by causing the property to sell at an under value. The matter is however disposed of so far as he is concerned. He has sold the property and received the price, and is therewith content. What right has 1 he purchaser to complain ? He bought the property with the cloud on it. It may be, that in consequence thereof, he was able to get it at an under value. Having thus taken the benefit of the cloud, or, at all events, having taken upon himself the risk, what equity has he to have the cloud removed ? A high sense of morality would induce him to accompany his prayer, with an offer to pay the real value of the property to the creditors, because they were the persons injured by the cloud, and consequently ought to be the persons benefitted by its removal. But a Court of Equity does not attempt to enforce this refined morality, because it reaches too far for practical purposes. Apart, however, from this consideration, the case of a purchaser at sheriff’s sale does not come within tho application of the principle, by which a Court of Equity, in particular cases, decrees a *61deed to be cancelled for the purpose, (as it sometimes fancifully expressed,) of removing a cloud from the title. With regard to deeds wbicb are void at law, but which are voidable in equity, because unduly obtained, we are at present not concerned. The application of the doctrine of cancellation to deeds, which may be avoided at law, is very limited. If he is not -in a situation to sue a Court of Equity, he contents itself, by perpetuating the evidence, to be used af-terwards at law, if occasion should make it necessary. To induce it to go further, and to grant relief, by having the deed cancelled, as a general rule, two things must concur, the person asking relief must be the party directly injured by the deed, and the title apart from the deed must be admittedly .in him, and not liable to dispute. This rule is a deduction from a consideration of the cases, and the reason of the thing. So that the case will be confined solely to matters bearing upon the deed complained of. For, if his title must be passed on, the ease will present a dry question of law. And without these restrictions, all questions of legal title would be drawn into Courts of Equity. For the sake of illustration: A alleges that B, by fraud, deduce, or some other illegal means, has obtained a deed from him; which, although void, and of no legal effect, is calculated to cast doubt upon his title. Mere both requisites concur: he is the party injured; his title apart from the deed is admitted, and he may ask the interference of a Court of Equity to have the deed cancelled, and the “ cloud removed:” jurisdiction being assumed upon the ground, that the ends of justice are not met by a judgment in ejectment, owing to its want of conclusiveness, or by perpetuating the testimony, and the party is entitled to be *relieved entirely from the effect of the deed so obtained, and to ie ■placed in statu*quo, which can only be done by putting ,the deed out of existence; for, although in no danger from its direct effect, he is injured consequentially, by the doubt cast upon his title.

*62So, as we have seen above, a creditor, wbo bas obtained a judgment and execution, finding that tbe property of bis debtor, wbicli is subject to execution, has been fraudulently conveyed, is not obliged to proceed under 13 Elizabeth, but may ask the interference of a Court of Equity, to have the fraud declared and the deed cancelled, so that the property may be sold for its value. Here both requisites concur: the creditor is the party injured, and, apart from this deed, his judgment and execution, without question, entitle him to have the property of his debtor sold, for the satisfaction of the debt. The Court uniformly refuse to entertain a bill, unless the creditor has a judgment, and has issued execution. For debt, or no debt, is a- question of law, and the Courts will not try it, unless where, it arises in some case where it has jurisdiction under a well established head of equity, as in a creditor’s bill for an account.

In regard to a subsequent purchaser of land for value, under 27th of Elizabeth, there maybe some doubt as to the application of the doctrine of cancellation. If his contract is executory, he clearly has relief, by a bill, for a sjjeeific performance. Buckle v. Mitchell, 18 Ves. *100;*Adams on Equity, 146. But, if he has obtained a conveyance, his title is valid at law, and he cannot ask for.the title, because he already has it by force of the Statute, and if he asks to have the fraudulent deed cancelled, the difficulty is, that in respect to the two requisites, he occupies a middle ground. The fraud was aimed at him, but his title is liable to dispute, and it must be passed on before the Court can deal with the fraudulent deed. This presents a dry question of law, and interposes an obstacle to the exercise of the jurisdiction. But, however this may be, in regard to a purchaser at sheriff’s sale, it is clear that the doctrine does not apply. His case has neither of the requisites. The fraud was not aimed at him. His title is liable to dispute, and must be passed on. So the Court cannot take jurisdiction, *63■without undertaking, in the first instance, to adjudicate a question of legal title: sometimes a very difficult one, as in a sale upon a constable’s levy; and this assumption would virtually supersede the action of ejectment, as a mode of trying title; for, carried out to its consequences, it leads to this: any one in possession, whether he has been let in, or has recovered in ejectment, may file a bill, alleging that he has the title, but that another protends to have it, which pretension casts a doubt on his, and ask the Court to decide which of the two has'the better title; and in case his proves to be so, that the deed of the other may be cancelled: putting his right to the relief, on the ground that the judgment in ejectment, not being conclusive, leaves a cloud upon his title. This is precisely the case of a purchaser at sheriff’s sale. He alleges that he has acquired a title, but that the donee of the debtor pretends to have it, and asks the Court to decide between them, upon the ground that the action of ejectment is not an effectual and adequate remedy. This is a novel attempt to extend the jurisdiction of equity, and have it to try and dispose of a pure, legal question.

The action of ejectment has been heretofore considered the appropriate mode of trying a title. The fact of the judgment not being conclusive has its advantages, for it is frequently desirable to have such questions tried a second, and even a third time, and the disadvantage is not often felt practically; for, in that action, the plaintiff must recover on the strength of his own title, and the party in possession need show no title until his adversary has shown a title in himself, good against the world, so far as it then appears to the Court; and when it is felt, the party has his remedy by “ a bill of peace ” — “ a jurisdiction growing out of a defect in the action of ejectment, because, from its peculiar nature, it is not conclusive : thus originating a necessity for the interference of a Court of Equity, to put a stop to litigation which is useleás, and *64purely vexatious Adams’ Eq. 202 ; Mit. 143. Rut this intention to harrass must be made manifest by frequent actions. This is as far as Courts of Equity have ever gone, and in so doing, they do not profess to try the title, but declare that the title, having been established by repeated decisions at law, further litigation is vexatious. A Court of Equity never decides a question of legal title, except when it arises incidentally, and stands in the way of the decision of a cause in which it has jurisdiction, upon some other distinct ground, as in a bill for a specific performance by the vendor, if the véndee objects to the title. If the purchaser at sheriff’s sale is let into possession, he may have the evidence perpetuated, or in a proper case, he may have a bill of peace ; but the doctrine of cancellation cannot be let in so as to sustain his case. So much on principle and gen-ral reasoning.

By way of authority, Mr. Biggs referred to Henderson v. Hoke, 1 Dev. and Bat. Equity Rep. 119. That was a bill by a purchaser at sheriff’s sale, for the purpose of having a deed *re-executed,*to the end, that it might be registered, and the equity is put upon the ground, that by the fraudulent destruction of the deed before registration, the plaintiff could not in an action at law make out his chain of title. So Ayres v. Wright, 8 Ired. Eq. 230. A man had obtained credit by showing a deed from his mother-in-law to him, and by making a deed of trust upon the property: after the sale, the good lady got back her deed, and refused to allow it to be registered. Of course a Court of Equity would protect the purchaser from such a palpable fraud aimed at him. These cases do not bear upon the point, but Frakes v. Brown, Black. Rep. 295, is a case directly in point. It is evident the attention of the learned Judges was not directed to the question. They, as well as the gentlemen of the bar, seem to have taken the question of jurisdiction for granted. And upon consideration of the *65ease, and looking into the cases decided at the same term1, it is clear they hold that a purchaser at a sheriff’s sale has a remedy by action of ejectment; and it occurred to us that, possibly, the application to Equity, in that Gase, grew nut of .the fact that there might have been some doubt as to whether the widow, before alimony decreed, was a creditor -under 13 Elizabeth. The conveyance being made after a *fiat*in the cause restraining the. ¡husband from making a ■conveyance, suggested the resort to equity. Let this -be as , it may, we certainly do not feel authorized, upon the-strength ■of ái single case, to open a new head of Equity jurispru-•denee, for which there seems to' be no necessity: in support of which there is no consideration of equity : and •against which there is a strong public policy: Because it is .always best to hold out inducements to creditors to have the title declared before the sale, so as to let the property •sell for a fair price, and pay off the -debts as far as it will reach.

Per .Curiam. Bill .dismissed with costs.

Nash, C. J.,

*(dissentients.)*I do not agree with my brethren in this case. To me their opinion appears to be a departure from principle.' The jurisdiction of a Court of Equity., in matters .of fraud,, is not -questioiied. That the ■case before us discloses a gross case of fraud between the ■elder Pitt and his children, will not .he denied, and the plaintiff, one of the -.creditors- intended to be defrauded, .prosecuted his-claim to judgment, had .the execution levied on the .property so conveyed, and became himself the purchaser. The bill is filed, to call in*and have cancelled the •deed made to .the defendant Pitt. The power of .a .Court, ■in the cancellation of deeds fraudulently obtained, is recog-nised by every writer on equity jurisprudence, .and is not *66now disputed; but my brethren deny that it applies to a case like this, of a purchaser at a sheriff !s sale.

Justice Story, in his treatise on Equity Jurisprudence, s. 698, observes, that the question has often arisen, how far Courts of Equity ought to interfere to decree deeds or other solemn instruments, to be delivered up and cancelled, which are utterly void and not merely voidable. The doubt rested upon the principle, that a Court of Equity will not interfere in a case, where a Court of Law can give full and adequate relief. In s. 700, he states, whatever doubts or difficulties may have been entertained formerly upon this subject, they seem by the most modern decisions to be put to rest, and the jurisdiction is now maintained in its fullest extent; and he further remarks, that the decisions are founded on the principles of equity being not merely remedial, but also preventive of injustice. If an instrument ought not to be used or enforced, it is against conscience to retain it, as he can do so only for some improper purpose.. If it be a deed purporting to convey lands and other hered-itaments, its existence in an uncancelled state necessarily has a tendency to throw a cloud. Honeywood v. Dimmsdale, 17 Ves. 111; Pierce v. Webb, 3 Bro. C. R. and Mr, Betts’ note, and the authorities cited by Justice Story. The principle is, that the paper, while it exists, is always liable to be improperly used, and may be so used at such a distance of time, that the proper evidence to repel it may have been lost. St. John v. St. John, 11 Ves. *535;*Hamilton v. Cummings, 1 John C. R. 524. In the language of Lord Eldon, (17 Ves. 111): “I conclude that there is a, jurisdiction in this Court, to order a deed forming a cloud upon the title to be delivered up, *though that deed is void at laio,*more especially where the deed is not upon its face void. The first question presented by this case, is, does the conveyance made by old Mr. Pitt form such a cloud uj>on the title of the plaintiff to the premises in question, as to-*67living bis case within the general principle ? If so, is there anything in the case of the plaintiff to take it out of its operation ? As to the first: the conveyance from Belcher to the father, and from him to his daughter, being to defraud his (Belcher’s) creditors, is void both in law and in equity, but its fraudulent character does not appear upon its face-: there all is apparently fair: and its objectionable •character is manifested by extrinsic circumstances dependent upon^ parol evidence, and is- susceptible of being used by the grantee at any time, in opposition to the title under which the plaintiff claims. It is then a cloud.

The" second point is the important one, upon which, with great deference, I differ with my brethren. To me, it ap-peará perfectly plain, that the plaintiff is entitled to the aid of this Court. It is not denied that any one of the creditors of Belcher, at the time the conveyance was made to Pitt, and from Pitt to his daughter, could have maintained a bill for the relief here sought; but it is insisted, that a purchaser at the execution cannot. *First,*because no case can be found in the English Reports of such a bill. I have been able to find no such case, and the learned counsel for the plaintiff has produced none. It is always gratifying to me,.in the discharge of my official duties, to find in those able Reports, cases, which investigate principles contested before the Court, and when they decide a question, I am ever inclined to take them as my guides. But, though the absence of authority is often a good reason for not establishing a precedent, it has never been considered ■as imperative, and there is goo$ reason why purchasers in England should not resort to chancery, when they can get ■at law a redress, which, though not complete, may be satisfactory. The delays and expenses of a chancery suit there may well dispose a person, having a case examinable in both Courts, to pause before throrving himself into the latter. But the absence of authority can only throw us *68back upon our own resources, as to tbe principle and reason of the case. Upon this point, however, I am not without authority to sustain my opinion. Our attention was drawn to the case of Frakes v. Brown, 2 Blackford’s Rep. 295. The substance of that case is, a Mrs. Jones obtained a divorce from her husband Reuben Jones, and a decree for $500 as alimony. An execution to raise the money was issued and duly levied on the land in question, as the property of Jones, the husband, and the plaintiff became the purchaser.. During the pendency of the suit for the divorce, Jones, the husband, to evado any recovery for alimony, fraudulently conveyed the land to Frakes. • The bill was to set aside the conveyance to him, as fraudulent and void, and the Court sustained the bill, though demurred to: and so decreed- I have always understood that the decisions of the Supreme Court of Indiana are of high authority in her sister States.

It is further objected, that the plaintiff does not come into Court under such circumstances, as to entitle him to favorable regard — that knowing the existence of this cloud, he pressed his claim against his debtor to judgment, and purchased on speculation — that he ought to have filed a creditor’s bill, so as to have shared the fund with them all. He certainly might have done so, but I know of no principle in equity which required him to do so. Mr. Adams, at page 480, says: *“*One creditor may file his bill, if he pleases, praying payment of his own debt, but the more-usual course is, for one or more of the creditors to sue for all. Upon this point, therefore, I conclude that the plaintiff could have filed his bill alone for the payment of his debt, without joining the other creditors, upon the principle *vigilantibus non dormientibus servat*lex- It is not denied that a creditor, under such circumstances, may file Ms bill, not only to subject the property so fraudulently -conveyed, but also to call in and have cancelled the convey-*69.anee forming a cloud upon Ms title. In this case, the plaintiff was a creditor of Belcher, and is also a purchaser, and it seems strange to me, that as soon as he clothes himself with the latter character he bares himself of the former. A purchaser at a sheriff’s sale purchases subject to all the equities existing against the defendant, and attaching upon the lands sold, and I should think is entitled to all the equities to sustain his title. The purchaser necessarily represents and stands in the shoes of the creditor. Reid v. Kinnemon, 8 Ire. Eq. 13; Johnston v. Cawthorn, 1 De. and Bat. Eq. 32. It is true, in this case, the plaintiff had ceased to be' a creditor: by his purchase his debt was paid; but if the doctrine established in the above cases be sound, and by his purchase he was clothed with the equity of the creditor, I repeat I cannot conceive by wh.at principle he is stripped of the former. Suppose he had not been a creditor, but had at the time of the sale been ignorant of the cloud hanging over the title, would the doors of the Court of Chancery be closed against him.? I think not. Yet the opinion of my brethren must go that length. Again, suppose the plaintiff, instead of purchasing as he has done, had for a fair price and valuable consideration purchased from the fraudulent donor, his title would have been good, though made with a knowledge of the fraudulent conveyance. Clawson v. Burgess, 2 Dev. Eq. 13 ; Freeman v. Eastman, 3,Ired. Eq. 81; Buckle v. Mitchell, 18 Ves. 111. Both of the last cases were upon titles acquired upon voluntary settlements, involving no question of actual fraud; yet the purchaser, for a fair ánd *Iona fide*consideration, was aided in a Court of Equity, and in the latter, Sir William G-RANT observed: *“*If a settlement were shown to be really fraudulent, in the ordinary acceptance of the word, I presume it would not be contended that the Courts would, out, of regard to such settlement, refuse to give the party purchasing, *with*notice, the benefit of his contract.”

*70These cases are cited, to show that a purchaser from a fraudulent grantor or donor will be aided by a Court of Equity in protecting his title, although he purchases with full notice of the fraudulent conveyance. And in WALKER AND OTHERS, 1 At. 94, and in Oxley & Lee, 1. At. 025, the same principle is declared by Lord Hardwicke, where the deed forming the cloud is accompanied with circumstances of fraud. If, tiren, a purchaser for a full consideration from a fraudulent donor, can ask and receive the aid of a Court of Equity, in removing a cloud on his title, though he had full notice, at the time of his contract, of its existence, I cannot see why a purchaser at an execution sale of the same premises, under a judgment against the same donor, though having notice of the fraudulent conveyance, is not entitled to the same equitable relief. I think, then, that I am justified in concluding that, as a general principle, the purchaser of real estate, under an execution sale, acquires all the equitable rights of the creditor, the plaintiff in the execution, and is subject to ail equities in the hands of others.

It is further said, that, if the conveyance from Belcher to Pitt, and from him to his daughter, were to defraud, hinder and delay his, Belcher’s, creditors, it was valid at law. and that, therefore, there was no necessity for the plaintiff to come here. He could effectually both defend himself in an ejectment, brought by the fraudulent donee, and could recover the possession from him. This question is answered by Lord IIardwtcke, in the case of Bennet and Mus-grove, 2 Ves. 51. His language is: “ Where a subsequent purchaser, for a valuable consideration, would recover the estate, and set aside or get the better of a fraudulent voluntary conveyance, if that conveyance vrere fairly made, (lu-is speaking of a voluntary settlement,) *without actual*fraud. the Court will say, take your remedy at law,” But, where the conveyance is attended with actual fraud, though they *71might go to law by ejectment, and recover the possession, they may come into this Court to set aside -the conveyance. Sug. L. of Vendors 475.

But'again, it is said, that to allow the plaintiff in this case- to come into a Court of Equity to remove this cloud, would be to reward him for a course of conduct not just to the other creditors of the defendant; that the premises purchased by him ought to have formed a common fund, to be appropriated to their several debts, and that ho purchased under this cloud, and ought to be content with the title a Court of Law would' secure him. It' might have been made a joint fund, if the other creditors had chosen to take the necessary measures; but they did not, and it has been shown that the plaintiff was under no obligation, equitable or legal, to take care of them. Nor can I consent to consider the plaintiff in this case as a speculator, any further than every purchaser at a sheriff’s sale maybe so considered. No man purchases either at public or private sale, but for his own benefit, either in the use of the property or on .a re-sale; and, in that sense, the lav/ encourages the speculation. If there be but one single bid, no matter what proportion it bears to the real value of the property, the sheriff’ may sell, and the purchaser acquires a good title, if there is no fraud between the officer and the purchaser. Executions /are the end and spirit of the law, and it is of the utmost importance both to debtors and purchasers, that the rights of each should be protected. While, therefore, the law forbids all illegal combinations to cause the property to sell at an undervalue, it, at the same time, creates a'free competition -among those disposed to buy. In some respects, the purchaser stands upon higher ground than the creditor. The latter, before ho can raise the question of fraud against a party claiming the property adversely, must reduce his claim against his debtor to a judgment at law, thereby establishing the justice of it.. Hafner, v. Irwin, 4 Ired. 532,. *72A purchaser satisfies tbe law when be shows a judgment, and an execution and a sale under it. He has nothing to do with the creditor’s original claim. While, therefore, we guard against the danger of multiplying suits in Equity, it will be well to consider whether we shall not be introducing a greater evil by lessening the confidence of purchasers in titles acquired* under execution sales. Will it not, on the contrary, encourage competition at such sales, in giving confidence to bidders, by showing them- that they cannot only protect themselves at law, against the claims of a fraudulent donee, but that equity will aid and assist them in removing the cloud upon the title so created, and not leave them to the casualties of time and loss of evidence ? Years might elapse in the case of a female infant, to whom a parent makes a conveyance of property to defraud his creditors, before a purchaser at sheriff’s sale might be called on to litigate his title in a Court of law. Considering the evil pointed out by my brethren, as ensuing upon the establishment of the principle contended for by me, as problematical only, and that attempted to be shown by me as certain, and that the former, if certain, is not to be compared in importance with the latter, I should not have hesitated between the two : but, believing as I do, that the preventive power of a Court of Equity extends to the plaintiff’s case, I am compelled, however reluctantly, to dissent from my brethren.