#### William Morris *v.*Elizabeth Ford, *et al.*

*A*purchaser at execution sale, succeeds to all the rights of the defendant, and where the latter, before the test of the execution, had received a deed for land, which by the fraud of a third person, had before its registration been destroyed, and the legal estate conveyed by the bargainor to that person, the purchaser is entitled to a conveyance from him.

Tha cases of *Tolar v. Tolar, (ante*1 *vol. p.*456,) and *Price*v. *Sykes,*(1 *Hawks,*87,) approved.

The plaintiff *William Morris*filed his bill against the defendants *Reuben Ii. Ford, John Ford, William Ford*and *Elizabeth Ford,*and therein charged, that lie and *one James Morris,*in the year 1812, purchased from the defendant *Reuben,*the undivided moiety of a certain tract of land therein described, with the reservation of one acre thereof for *Elizabeth Ford,*paid the purchase money, and took from the said *Reuben*a bond with *Robert Catlett*surety thereto, conditioned to make a title so soon as a partition could be liad between him, *Reuben*and *William Ford,*who was seized of the other moie* ty thereof that; tiie condition of the bond having been broken, *William*and *James Morris,*instituted an action thereou against both the obligors, and obtained a judg* ment for the sum of £87 0 8 — that the plaintiff caused an execution to issue on said judgment, which was le» *413vied on the said *Reuben's*undivided moiety, in said land ; that the sheriff sold the moiety so levied on, at public sale, that the plaintiff purchased the same at the price 0f forty dollars, and that the sheriff duly executed to him a deed therefor. The bill further charged that the tract of land aforesaid, had belonged to *Zebulon Ford,*who devised the same to *John Ford*— that of this will, the said *John,*and the defendant *Elizabeth,*were the executors — that the said *Reuben*and *William*were entitled to legacies under that will, that a dispute having arisen between the legatees and executors because of the nonpayment of their legacies, and the wasting of the assets, the controversy had been left to arbitration ; that the arbitrators awarded that the said tract should be conveyed to the said *Reuben*and *William,*in satisfaction of their demands with the exception of one acre to be reserved for the defendant Elisabeth, that in pursuance of said award, and shortly thereafter the defendant *Elisabeth*and *Juhn*did *convey the*said tract with the reservation aforesaid, to the defendants *Reuben*and *William,*and that the said *Reuben*and *William*were seized thereof as tenants in common. The bill then charged that the defendant *Reuben*had caused the deed aforesaid fi'om *Elisabeth*and *John*to be proved, but before the same was registered, and by combination with the. other three defendants bad caused the deed to be returned to the defendant *Elisabeth,*who destroyed the same, and that then the defendants *Elisabeth*and *John,*in order to defraud the plaintiff, executed a deed to the defendant *William*for the whole of said tract, who knew at the time, of the plaintiff’s title to a moiety thereof, and who had taken possession of the whole of the said land. The bill prayed a discovery from the defendants, that *William*might be compelled to make a conveyance to the plaintiff of his moiety, and to account for his share of the rents and profits, and that a partition might be made of the lands.

The defendant *Elisabeth*alone answered. In her answer she admitted that *Zebulon Ford*devised the land to her sob *John,*that *John*conveyed the same to her, *414ami that in pursuance of an award, she conveyed the same to *Reuben*and *William.*She alleged that according to the award she was to have the dwelling house and one acre of the land during her life — that there was to be no partition of the land between her sons *Reuben*and William, nor was either to sell his moiety during her life — «-that they were to work the land jointly, and during her life, pay her annually twenty-seven bushels of corn and eight bushels of wheat — that *Reuben*failed to perform his part of this award, furnished her with neither corn nor wheat, left the ¡dace, sold his part to *Robert Catlett,*and gave a bond to make title — that in Consequence of this breach of the award on the part of *Reuben,*she required him to return the deed — that this was done accordingly, and the deed, With the consent of *Reuben*and *William,*was destroyed. Site disclaimed all knowledge of any contract between the plaintiff and *Reuben,*admitted that the plaintiff did purchase under an execution a moiety of this land as the property of *Reuben,*but averred, that at the time of such purchase, he had full knowledge of the terms upon which *Reuben*had held the lands, and also of the destruction of the deed. She further alleged that on the 18th of May, 1814, after the purchase by the plaintiff at sheriff’s sale, certain articles of agreement were executed by the plaintiff, herself and the defendant *John,*which she sets forth in *hoeever-ba,*and which are, that she agrees to sell off all her lands by the 35th of December then next ensuing,on the plaintiff’s giving up his right to the cfaifii of *Reuben Ford*—that if she made sale before that time, the plaintiff would give up Ins right to the claim of the defendant *Reuben*— that, if she did not sell before the 10th of December, she should choose men to value the land or a part thereof and the plaintiff would make payment agreeably to their valuation, and that she should move off the land before the 20th December and riot return to the same — and that either of the parties violating these articles should forfeit five hundred dollars. She then averred that in execution of this agreement, she sold the land to *William Ford*in fee simple, who now held the *415same, and that she moved off before the. appointed day, but afterwards she. moved back to it and resided there with *William*until be moved away and rented it to his brother *John.*

The other defendants have not answered, and a judgment pro *confesso*has been taken against them. The plaintiff replied generally to the answer of tire defendant, *Elizabeth,*and the cause, as between them, now comes on to be heard on the pleadings and proofs.

The proofs filed were very voluminous, and those necessary to a correct view of the case will be found stated in the opinion given below.

Devereux, for the plaintiff.

No counsel appeared for any of the defendants.

Gaston, •Judge.

After stating the pleadings as aboi e, proceeded as follows;—

The plaintiff exhibits what be insists was the award, and proves its execution by *Philemon Morris,*one of tiie subscribing witnesses. It bears date 11th November, 1811, and in relation to the matters connected with this controversy, it awards that *Elizabeth Ford*shall make *A*deed Jo *Eeuben*and *William Ford*for the land on which she lives, and that *Eeuben*and *William*shall deliver to her twenty seven bushels of corn and eight bushels of wheat annually, and give her the house, in which she lives and one acre of land adjoining, during her life.— The defendant exhibits another instrument executed many months afterwards, by three of the four abitrators, but dated the same day, which she alleges was made on purpose to supply an omission unintentionally left in the foj-mei- instrument, and which she insists contains the true award. This differs from the other solely in this, that it contains a clause in these words, “owing to the “smallness of the tract of land, wo do allow that no ‘‘division take place between *Eeuben*and *William*Ford, “ but each to work and to clear wherever they think proper. and that none of them sell without the approbá- “ tioii of the other.** It is unnecessary to examine which of these contains the definitive award as it is proved by *416the testimony of *Butin,*and this proof is cois firmed by the testimony of others, that the contract of *Reuben,*by which he sold ids moiety to *William*and *James Morris,*was made, in the presence and with the approbation of *William Ford.*

The plaintiff does not exhibit the bond which lie charges to have been executed by *Reuben Ford*and *Robert Catlett,*conditioned for the making title to the plaintiff and *James Morris,*of the said *Reuben's*moiety in the land, at though he gives parol proof of a sale and payment of the purchase money and of the execution of a bond for the title, but he exhibits a record, from which it appears that a judgment was obtained by the- said plaintiff and *James Morris,*against the said *Reuben*and *Robert,*for tiie sum of *£8T*0 8, at the May term. 1813, of the Mecklenburg Superior Court, and that a *fieri fa-das*issued thereon, and exhibits also a sheriff’s deed purporting to have been executed in consequence of a sale made upon tliatjSen *fadas*on the 2d March, 1814, am! purporting to convey to the plaintiff the undivided moiety aforesaid of the said *Reuben.*The plaintiff further exhibits the will of *Ztbnlon Ford,*devising the whole of this tract to his son *John,*and devising to his wife *Eliza*both the mansion house in which she lives, and her maintenance off tiie plantation during her life. It does not appear from the proofs whether this liou-iO and plantation were on tiie tract devised to *Reuben*or not. The plaintiff proves by *Philemon Morris,*that a few days after the award, *John Ford*ami the defendant *Elisabeth*did execute a deed for the tract of land pttr.su* antly to the award, which deed was witnessed by himself and *James Morris;*and also proves by *Daniel Fox, John Wilson*and *Sugar Dtilin,*that there was such a deed. *Isaac Alexander,*tiie clerk of the court, testifies that this deed was proved in court, and before it was registered, the defendant *Elisabeth*applied to him for it —that lie declined to deliver it to her — but that after? wards, on the application of one of her sons, with th$ permission of the court, he delivered the deed to the sou, who made the application, and *William Wilson*tes*417tified that *Reuben*got the deed from the cleric — that *William*obtained it from *Reuben,*stating to *Reuben*that he had held the deed long enough — that upon the delivery *Reuben*charged *William*to take care of it, and called upon *Wilson*to take notice of this delivery and of the charge accompanying it. The declarations of the defendant, *Elizabeth,*produces no testimony to show how she got possession of the deed, when and by whom it was delivered to her, for what cause, under what circumstances or by whose concurrence it was destroyed, or in any manner to explain the fact of the destruction. The exhibits filed shew that on the 28th January, 1814, *John Ford*executed a deed to her for the whole of the land, and thiit on the 2fth of November, *1815, she executed*a deed for the whole of it to the defendant, *William.*

In support of the allegation in tiie defendant’s answer of the specific agreement therein set forth to have been made between herself, *John Ford*and the. complainant, she offers testimony tending to shew that some agreement had been made and a bond executed by the parties to testify and secure the performance of this agreement — but no bond is produced, nor its loss accounted for. nor the terms of the agreement shewn. The witnesses who speak of the agreement also represent that one of its conditions was that she should remove from the laud and net return to it, and they state that she removed for a few days only and then returned to the land. The defence, therefore, so far as it rests on this .allegation, is wholly unsupported.

By the admission of the defendants then, *John, Reuben*and *William,*and on the proof against the defendant *Elizabeth,*it clearly appears, that a deed was. executed by two of the defendants, *Elizabeth*and *John,*to the other two defendants *fieuben*and *William,*for the tract of land, whereof the plaintiff claims a moiefy, which deed was effectual to convey the legal estate therein, in every respect except that it wanted (he formula of registration — that the plaintiff purchased at execution sale, *Reuben’s*moiety of the said tract — that after this deed was proved, but before its registration, *418ami with a view to defeat the claim of the plaintiff, un-cler this pui-chase, or under thejudgment.it wan wrongfully destroyed by the defendant. *Elizabeth,*so that the same cannot now be obtained for registration — and that the evidence of *Iteubcn’s*title to the moiety, conveyed by the sheriff to the complainant, being thus put out of the way, the other defendants *John, Elizabeth*and *William,*have contrived by a conveyance from *John*to Elizabeth, and then from *Elizabeth*to *William,*to vest the legal, or apparently legal title of the whole land in *William,*

An unregistered deed vests in the bargainee an inchoate legal estate, which was liable to seizure uuder an execution, before the passage of tho act subjecting equitable interest to execution sales,

We are of opinion that the plaintiff is entitled *to*be relieved against the fraudulent contrivances. Had *Reuben*been the individual injured by them, he would have been redressed on a bill against the other defendants. In the case of *Tolar*v. *Tolar,*(1 *Dev. Equity Reports,*456.) it was decided that if a voluntary deed, fairly obtained, is destroyed by the donor, before reghs-tration, a Court of Equity will compel him to convey the same *property*to the donee, and certainly the same remedy would bo granted against one who claims the property, subsequently to this destruction, and under a *mala Jide*conveyance, from the donor.— The estate which *Reuben*held under the deed thus destroyed, was duly conveyed to the plaintiff, for it was to many purposes a legal interest, although the title was not legally completed. Such an interest it was holden in the case of *Prince v. Sykes*& *Iles,*(1 *Hawks,*87,) was liable to seizure amásale, under an execution, before our act of 1812,which authorised the levying of executions upon equitable estates. The bargainee after the execution of the deed, and before the registration has not a mere equity in the land — he has an equity and an incomplete legal title. When the registration takes effect. he is then perfect owner from the time of the execution of the deed. If he dies before^ registration, his wife is entitled to dower, as of a legal estate. If a *pre-cipe*be brought against the bargainee, and a recovery upon it, before enrolment, it is good, for he was tenant of the freehold. If the deed from *Elizabeth*and *John*
      *419to *Reuben,*liad been registered after tlie purchase, by tlie plaintiff, at the sheriff’s sale, there eoulil be. no question- but tlie plaintiff’s title to the moiety would have been complete, and the defendants cannot be permitted to set up their criminal act in preventing this registration to the prejudice or destruction of this title.

Tlie court does not consider it necessary to enquire whether under the award, directing a conveyance to *William*and *Reuben,*there was- a Men, on- tlie land for the payment to the defendant, *Elizabeth,*of the animal supplies of grain 'which were awarded in her favour.— Certainly no express charge was created. Tlie conveyance actually made was without condition, and tlie plaintiff is entitled to be placed in the same plight, as if the spoliation had not been committed. If the defendant *Elizabeth*could set up such a lien, site should have brought it forward, either by an original, or a cross bill, instead of alleging it as a pretext for her unjustifiable conduct.

The court will declare the plaintiff to be tenant in common with the defendant *William,*in the tract of land set forth in the bill, and decree that that partition bo made thereof. It will also decree that the defendant *William*shall convey and release to the plaintiff all his interest and theesfatein the portion which shall be allotted to the plaintiff in the partition; but that the plaintiff shall not during tlie life of the said *Elizabeth,*disturb her, or the defendant *William,*in the enjoyment of the mansion house, and one acre of land, to be laid off, adjoining thereto — that an arcount be taken of the rents and profits received from the land since tlie purchase of the plaintiff, at tlie sher'ff’s sale, and by whom the same were received, to a moiety whereof, tlie plaintiff is entitled, and that the plaintiff recover his costs from the defendants, to be taxed by the clerk of tlie court.

Per Curiam — Decree accordingly.