#### JAMES MAXWELL *against*ROBERT B. WALLACE AND OTHERS.

Where one, “by way of transferring his title to a tract of land, assigned the deed under which he claimed to the *purchaser:*— Held, That the contract was within the exception of the Stat. of 1819, and therefore could not he rescinded by parol.

One who purchases an absolute estate from a trustee, with notice of the trust, is affected by the same equity which affected the trustee.

Cause removed from the Court of Equity for Mecklenburg, at Spring Term, 1851.

The defendant, Robert B. Wallace, in 1834, purchased the tract of land in controversy, from one Alexander Wallace, and took his deed therefor. In 183T, Robert bargained and sold the land to the defendant, Frederick, who paid the purchase money, $75., and took,an assignment from Robert, of Alexander Wallace’s deed to him. Frederick sold the land to the plaintiff, and executed his deed for the same ,• and afterwards, Robert sold to the defendant, Mathew Wallace, and executed a deed to him.

The plaintiff alleges, that after his purchase from Frederick, it was agreed between them and Robert B. Wallace, that the latter should make him a deed in fee simple for the land, as soon as *252the purchase money was paid to Frederick ; that he paid the said purchase money, and thereupon applied to the said Robert for a deed, and that Frederick also applied to him for a good and valid conveyance — which he refused to give ; and the plaintiff then charges, that the defendants, Robert and Mathew, his brother, in pursuance of the declared purpose of the former, to defraud Frederick and himself in the premises, and with full knowledge *of the*equity of the plaintiff and Frederick, had the said deed executed by Robert to Mathew, the consideration whereof, the plaintiff charges, was merely nominal. The prayer is for a conveyance of the premises by the defendants, Robert and Mathew Wallace.

The defendants, Robert and Mathew, in their answer, aver that the contract between said Robert and Frederick, by which the latter took an assignment of Alexander Wallace’s deed, had been rescinded by the parties thereto, before the deed from said Frederick to *the*plaintiff, or the deed from Robert to Mathew was executed. For, they state, when Frederick (who, they say, did not enter on the premises) was informed that the assignment to him of Alexander Wallace’s deed was insufficient to pass the title, it was agreed between him and the defendant, Robert, that the said contfact should be rescinded, and that he requested Robert to sell the land, stating that all he wanted was the $75. which he had paid for the land; and the defendant, Robert, states that in pursuance of this understanding and agreement, he offered to sell the land, and offered it to the plaintiff, who at first agreed to give him $144 for it, but that the plaintiff, having learned from him the fact of his having assigned the deed of Alexander Wallace to Frederick,. afterwards purchased of Frederick, and said at the time he did so, being warned that he was buying no title, that he would risk it, and that afterwards, he further stated to defendant, Robert, that he would buy of the man who sold the cheapest. And the defendants aver that the plaintiff and Frederick had full notice of the recision of said contract between defendant, Robert, and said Frederick ; that the latter fully assented thereto, and directed the land to be sold — and they insist that he (hereby abandoned his equity, if any he had, under said assignment. Further answering, they aver that a full and fair price for the land, to wit, the sum of $96 was paid by *253Mathew, who at the time thought, as did the defendant, Robert, that he was purchasing a good title.

The plaintiff replied to the answer, and many depositions were thereupon talsen by the parties ; after which the cause was set for hearing and transmitted to this Court.

*Hutchinson*and Avery, for the plaintiff.

*Oraige,*for the defendant.

Nash, C. J.

The parties in their bill and answer agree, that the defendant, Frederick, had purchased the tract of land in question, from the defendant, Robert B. Wallace, and paid up the purchase money, and that the latter, by way of conveying the title to Frederick, assigned over to him the deed made to him Wallace, by Alexander Wallace, under which he claimed, and each party at the time believing such a transfer of the deed was a sufficient conveyance. They further agree that after such sale to Frederick, R. B. Wallace conveyed the land to his brother, Mathew Wallace, one of the defendants. The bill charges, that the plaintiff purchased the land from Frederick, who conveyed it to him by deed duly executed. This is not denied. It further charges that if Mathew is a purchaser of the land from his brother, he purchased with full notice of the equity of both Frederick and the plaintiff. The answers 'are, that after the sale by R. B. Wallace, to the defendant, Frederick, and' before the sale of the former to the defendant, Mathew Wallace, the contract between the two former was rescinded, and that Frederick directed R. B. Wallace to sell the land and pay him back his money. The defendant, Mathew, denies that at the- time he made his purchase, he knew of the equitable title of the defendant, Frederick, or of the plaintiff, but states, *a*the fact is that he, Mathew Wallace, was informed that the contract was rescinded, as he now alleges the fact to be, and was then informed that the complainant said he would risk the title,, though he knew at the time he purchased from Frederick that the contract had been rescinded. Both the defendants rely upon the alleged rescinding of the original contract, and both by their answers admit, for they do not allege the contrary, that the contract of recision was by parol.

*254The Act of 1819 makes *void “*all contracts to sell or convey lands, tenements or hereditaments, or any interest in or concerning them, unless such contract or some memorandum or note thereof shall be put in writing,” &c. • By his purchase from R. B. Wallace, and by the assignment by the latter of the deed from Alexander Wallace, Frederick acquired such an interest in the land as brought it within the exceptions of the Act, and it could not be conveyed by him so as to transfer a title either at law or in equity to another, unless by some writing. If, therefore, the rescinding did take place, as alleged by the defendants, it did not alter the relation ■ existing between the parties by the sale. The equitable title of Frederick still remained in him, and he transferred it by a regular deed to the plaintiif. . The answer of Mathew Wallace sufficiently shows, that at the time he made his contract, he not only knew of the sale to Frederick, but of the purchase from him by the plaintiff. His allegation, that at that time the contract between his brother and Frederick had been rescinded, cannot alter the relation in which he stood to the transaction. He knew that it was by parol, and was bound to know that under the law, it was void. He was, therefore, a purchaser with full knowledge of the equity of the plaintiff. The plaintiff is entitled to the relief he asks.

Per Curiam. Decree accordingly.