#### HATCH WHITFIELD *against*BUCKNER L. HILL AND ANOTHER.

A purchaser (even with notice) from one purchasing fraudulently, at a sheriff’s sale, (as by preventing a. fair competition among bidders,) who has had the land in possession for more than seven years before a suit in equity is brought for a reconveyance, is protected by the statute of limitations.

An action of ejectment, predicated on the assumption that a deed made by a sheriff for land sold, is void on account of a fraudulent suppression of bidding, is not the same cause of action with a right asserted in a court of equity to have the purchaser converted into a trustee, and to have a recon-veyance, which assumes that the sheriff’s deed is valid to pass the title; and, therefore, the pendancy of the former is not a good answer to the plea of the statute of limitations.

If it appear on the face of the bill that the plaintiff’s case is barred by the statute oflimitations, advantage may be taken of it by motion on the trial.

Cause removed from the Court of Equity of Wayne county.

Lemuel II. Whitfield had been the guardian of the defendant, William A. Whitfield, and the *plaintiff,*Hatch Whitfield, was his surety on his guardian bond. The plaintiff, in 1839, removed to the State of Mississippi, and was residing there in the year 1840, when a writ was taken out against the said Lemuel H. and himself on account of the said guardian bond. This was served upon the former, but the plaintiff not being found, a judicial attachment was taken out, which was levied on six tracts of land, lying contiguous to each other, containing about 5973 acres, and two lots in the town of Waynesbo-rongh — and on advertisement being made, a judgment was taken against Lemuel II. Whitfield and himself for $2325,66. There was an execution taken out as to L. II. Whitfield, and levied on his land and slaves, and a venditioni exponas taken out to sell the lands of the plaintiff, which had been levied on by the judical attachment, and they were sold for $2000. At. the sale of the lands, the defendant, W. A. Whitfield, declared, publicly, that he did not wish any one to bid against him for the land about to be offered ; that he only wanted to biing Ins brother, Hatch Whitfield, who was then in Mississippi, to a settlement, and he was afraid if any one else bought *317the land, he would not let his brother have it back; that he would sell the outskirts of the land and let his hrother have the home plantation. Iu consequence of these assurances, and others of the same kind, made before, several persons abstained from bidding, and amongst others, the defendant, Euckner L. Hill, and the defendant, W. A. Whitfield, was thus enabled to buy the land at greatly below its value, to wit, at §2000. A part of the land in question adjoined the defendant, Hill, and he was very solicitous to buy this part, and went to the court-house on Monday, the day advertised ■ for the sale, with the view and purpose of bidding for the land, but he was dissuaded from doing so by, the representations made to him by the defendant, Whitfield, of the character above set forth, so that he was not present at the sale at all. Afterwards, (in a short time) he got from the defendant, Whitfield, the land he wanted, amounting to about 1902 acres, by paying him a full price for it, to wit, §2377,50. W. Whitfield also sold a small portion of it to one Herring.

The bill alleges that the plaintiff had no knowledge of the proceeding in Court, upon which the judgment was taken against him, until after the sale of his lands, living, as he then did, in a distant State, and having received no information on the subject; that Lemuel Whittled, the other defendant in the execution, and the real debtor had abundant means within the bailiwick of the sheriff, consisting of lands and slaves, to satisfy the judgment; that he went forward and insisted', that if any one’s property was to be sold to satisfy this debt, it .should be his ; that the land, bought in by W. A. Whitfield, was worth, at least, §10,000, and that several of his friends, who were present at the sale, urged that the land, shorrld be sold in separate tracts, and that if this had been done, and a fair competition allowed, there would have been no necessity for selling more than the town lots and one of the tracts, but that all this was met by the assurance that Lemuel Whitfield had put money into the hands of the plaintiff to pay the debt, and that all he wanted was to force his brother to a fair settlement of the claims he had aarainst him. *318and that the sheriff, in his course, was influenced by this assurance; that there was a fraudulent combination and agreement between the defendants, W. A. Whitfield and Hill, for the former to buy the land, and for the latter to have it from him at nearly the price he might give for it, and that a few days after this sale, this fraudulent arrangement was consummated by the defendant, Whitfield’s, conveying a part of the-land set forth, distinctively, in the pleadings, for the sum above stated. This bill was filed in 1856.

The defendant, W. A. Whitfield, did not answer the bill,, and a judgment *pro oonfesso*was taken, and the bill heard! *ess parte*as to him.

The defendant, Buckner L. Hill, answered, denying that ho made any arrangement, or had any understanding with his. co-defendant as to stifling competition in the bidding for the' land; or was cognizant of any trust or arrangement between the brothers; or of any equitable claim the plaintiff had to have-the land levied on, or any part of it, reconveyed ; that he did desire to have a part of the land, and went to the place appointed for the sale, in order to bid for it, but the sale was postponed, as he then understood from a friend of the plaintiff, because of some defect in the advertisement, and he gave himself no further coneei’n about the matter until after the sale, (at which he was not present,) when the other defendant approached him and offered him a part of the land ; that after some negotiation he agreed to give, and did give, the sum stated for the number of acres above set forth ; that this was. the very highest market price for the land, and more than he would have given, if he had not previously agreed to abide by the price which a referee, mutually chosen by them, should fix upon ; that he paid $700 down, and the remainder of the sum after the land was surveyed and the deed made to him.

There were proofs taken in the cause, the substance ofi which, material to the case, is set forth in the previous part of the statement.

The prayer of the bill is for a reconveyance- of the land and for an account.

*319After the sale to Hill, he entered upon a part of the premises and has cultivated it ever since; for this part the plaintiff, in 1842, brought an action of ejectment, which has pended ever since in the court of law, and is still there pending. As to another part of this land, this defendant has not been able to get possession, but he commenced an action of ejectment for that part in the said conrt of law, about the time the suit was begun against him, which is still pending. (See 3 Jones’ Eep. 120.)

*E. Q. Maywood*and McEae, for plaintiff.

*J. M. Bryan, W. A. Wright*and *Dortch,*for defendants.

PeaksoN, C. J.

"We are satisfied the defendant, "Whitfield, *“*stifled the bidding,” and was enabled to buy the land for a sum greatly under its value, by assuring several gentlemen, who wished to purchase, that his object in forcing a sale, was merely to effect a *“*brotherly arrangement,” and compel his brother to come to a fair settlement, upon which he would reconvey the land, and requesting them, as it was a family matter, not to bid against him. We are satisfied that the defendant Hill, was one of the gentlemen who was influenced, either directly or indirectly, by these assurances and representations, not to bid. But the allegation that Hill colluded with William A. Whitfield, and was induced not to bid, by reason of an understanding, that he was to share in the spoils and take the part of the land which he wished to buy, “at nearly the same rate, that William Whitfield should buy it at,” is not proved — on the contrary, we are satisfied that he gave a full and fair price. It is true, the fact of his buying so soon after the sheriff’s sale, raises an inference that his conclusion not to attend the sale and bid, was, in some measure, attributable to an expectation that he would be able to buy the part of the land he wanted from William A. Whitfield, should be become the purchaser. Whether this expectation was caused by the circumstance, that the embarrassment, under which William Whitfield labored, in conse*320quence of the delay and difficulty in drawing bis funds *out*of the hands of his guardian, would compel him to sell a part of the land, or by a direct assurance to that effect, is a question which need not be solved ; for, assuming that Hill expected to buy a part of the land, the significance of this fact is, in a great measure, taken way by the fact, that he expected to give, and did give, a full price for it. So, the amount of it is: he was induced not to bid, as well by an expectation that he would have an opportunity to buy a part of the land, as by the assurance that William Whitfield’s objectin forcing a sale, and becoming the purchaser, was simply to place himself in a condition, by which he would be able to effect a family arrangement. But he expected to *malee no gain*other than what is incident to the privilege of buying property at a fair price, provided the parties could agree in respect to it. And the equity of the plaintiff, as against Hill, is attenuated to this: he bought from William Whitfield, *with notice*of the plaintiff’s equity to have back the land upon paying the amount due to William Whitfield ; but he is relieved of all imputation of a fraudulent complicity; and is entitled to this further favorable consideration: the amount paid by him was just about enough to satisfy the judgment, and he made cash payments to meet the necessities of William Whitfied — thus doing what the plaintiff was bound, not only at law, but in conscience to have done; and may fairly claim the benefit of being considered as having done that much in part performance of the family arrangement, which William Whitfield professed to be desirous of effecting.

There can be no doubt, however, that the plaintiff had an equity to have baek all his land, which extended to Hill by reason of the notice, provided he had come forward within a reasonable time, and offered to pay him the amount which he had advanced. The plaintiff was ill advised, and chose to insist upon a supposed legal right to avoid the sheriff’s sale and hold all the land without satisfying the judgment. But for his mistake, in this particular, the whole matter might, at first, have been easily adjusted. He had only to offer to con*321firm the sale to Hill, and in that way satisfy the judgment. By doing so, his right to have a reconveyance of the rest of the land, would have been made too clear to admit of any doubt or opposition. Now, the question is, as he elected to insist upon a right, at law, to which he was not entitled, in consequence of which, there has been much litigation, and a *delay of more than seven*years, during all of which time, he has neglected the duty of discharging the judgment, and availed himself of the opportunity, which this litigation afforded, to evade its enforcement, is it not *too late*for him to fall back upon an equity, growing out of the fact, that the bidding at a sale, made by the sheriff, was stifled, and claim a reconveyance of the property upon an offer, now, for the first time made, to pay the amount due upon the judgment, provided he is allowed credit for the profits made out of the land ; thus, in effect, taking advantage of his own wrong in order to reap the fruits of another’s labor?

In *McDowell*v. Sims, 6 Ire. Eq. 278, it is held that the equity growing out of “ puffing” at a sale, must be insisted upon in*a reasonable time, and it would seem, from analogy, that the equity growing out of “ stifling the bidding,” should be subject to a like restriction ; for the defendant, in the execution, is certainly in default, so long as he suffers the debt to remain unpaid.

But we will not decide the question, for, in this case, by the plaintiff’s own showing, his equity is barred by the statute of limitations, upon the principle established in the case of *Taylor*v. *Dawson,*3 Jones’ Eq. Rep. 86, the sale having taken place in 1842, and the bill filed in 1856.

The pendency of the action, at law, does not bring this case within the exception according to the ruling in *Hall*v. *Da*vis, 3 Jones’ Eq. 413, because the cause of action is not the same. The right which the plaintiff insisted upon at law, was to set aside the sheriff’s sale *in*toto, and treat it as a nullity. The right which he now insists on, in equity, is to convert the defendants into trustees — assuming the validity of the sale to pass the legal title, and admitting the right of the defendants *322to hold the land as security for the amount of the judgment and costs; which two rights, are wholly inconsistent.

In this connection it may be well to remark, that the injunction, in our case, was improvidently granted. The plaintiff ought to have been required, as a preliminary to his coming into a Court of Equity, to enter a nonsuit in the action of ejectment, brought by him, and to permit the defendants to take judgment in the action of ejectment, brought by them, so as not to allow litigation in both courts.

It is settled, that if it appears on the face of the bill that the plaintiff’s case is barred by the statute of limitations-, advantage may be taken, of it by motion on the trial; *Robinson*v. Lewis, Busb. Eq. 58.

The bill, in respect to the defendant Hill, will be dismissed; and the plaintiff will have a decree against the defendant, William Whitfield, against whom there was judgment *pro*confesso, declaring that he is 'entitled to a reconveyance of the land, except the parts conveyed to Hill and Herring, and to an account, in which the plaintiff will be allowed the sums received by William Whitfield of Hill and Herring, upon his agreeing to confirm their title as a credit, and will be charged with the amount of the judgment and costs.

Per, Cubiam, Decree accordingly»