#### *Ellen McGuire and others*vs. *James Jefferys and others.*

Before payment in full of the purchase money and execution of titles undor a contract to purchase land, a prosecution for retailing was commenced against the purchaser, and it was then agreed between him and the vendor, that the vendor would protect the purchaser’s property, and, in the event of a conviction, would make titles to his wifo and children. The purohaser was convicted, and the balance of the purchase money was paid: *Held,*that the wife and ohildren could not maintain a bill to enforce tho contract to make titles to them, the same having been'conoocted in fraud.

*Before*DunkiN, Ch., *at York, June,*1853.

Dunkin, Ch. It is alleged that, in 1841, John McKoy, deceased, agreed to sell to John McGuire a tract of land on the Catawba river for eight hundred dollars ; that two hundred and fifty dollars were paid down, and in March, 1844, the balance due was levied and satisfied, under an execution of McKoy against McGuire. It is further alleged, that, in 1843, a prosecution for retailing spirituous liquors was instituted against McGuire ; that McKoy was to protect his property by means of a confession of judgment in case of conviction, and, in that event, that he would execute titles for the land to the complainants, who are the ffife and children of McGuire.

McGuire and his family were in possession of the premises, or a part of them. But it appears that he had from time to time given notes to McKoy for rent due therefrom. McKoy died in June, 1851; and on the 13th January, 1851, when John McKoy was ill and supposed to be on his dying bed, McGuire executed to him a note purporting to be for the rent of the premises for the current year.

After the death of McKoy, and after the expiration of the year 1851, the defendant as his executor, sold the premises and when possession was required resort was had to a magistrate and freeholders, who ordered restitution.

This bill was then filed by the wife and children of John McGuire for a specific performance. John McGuire himself seems to be no party to the proceedings, although he alone has sworn to the bill.

*362There are many very serious obstacles in the way of a decree for the plaintiffs. The alleged original agreement was for a conveyance to John McGuire. Three or four years afterwards it is said McKoy agreed to make a deed to McGuire’s wife and children, if McGuire should be convicted. It does not appear from the pleadings what became of the prosecution, although the evidence shows that a conviction took place, and that an execution issued for the fine imposed. But so far as the Court can perceive, the agreement was concocted in fraud, and no party could claim the aid of this Court to enforce the performance of it. If McGuire had not been convicted, then it would seem that he alone was entitled to enforce the contract, and as has been said, he is no party to these proceedings. But if McGuire, or his family were entitled to a conveyance in March, 1844, why did he or they suffer seven years to elapse, and Mc-Koy to descend to his grave, without any demand for title, and in the meantime, McGuire acknowledging by his rent notes that he held as his tenant ? It may be, as is suggested in the bill, that this was to cover the property from his creditors. There is much in the evidence to induce the conclusion that McKoy was paid for the land, and if McGuire had asked for a specific performance, it may be that the evidence is strong enough to entitle him to the aid of the Court. But the basis of this proceeding is an alleged agreement to convey to McGuire’s wife and children, in order to defeat his creditors. In such cases this Court can.only leave the parties to their legal remedies, if any they have.

It is ordered and decreed, that the bill be dismissed, but without costs.

The complainants appealed on the grounds:

1. Because it was held that the agreement was concocted in fraud, and that the complainants are therefore not entitled to the aid of this Court, whereas it is submitted that the complainants were no parties to the fraud, if any, and are therefore entitled to specific performance.

2. Because his Honor erred in supposing that the contract *363was, that if McGuire was convicted in the State case, that then the titles were to be made to the complainants; if not to John McGuire. Whereas, it is submitted that the contract of McKoy was to make title to the complainants, unconditionally.

*Clawson,*for appellants.

*Williams,*contra.

*Per Curiam.*

We concur in the decree ; and it-is ordered that the same be affirmed, and the appeal dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CC., concurring.

*Appeal dismissed.*