#### *E. L. Davis and others*vs. *David Keller and others.*

Husband’s interest in wife’s inheritance was sold by the sheriff. Purchaser, husband and wife, then joined in conveying the land, with warranty, to trustees, in trust (1) to sell the land, (2) to pay purchaser his bid, with interest, and (3) to hold surplus for sole and separate use of wife. Wife died before renouncing her inheritance. There was no sale by the trustees, and husband’s interest was again levied on and sold by the *sheriff:*— Held, that the conveyance to the trustees passed, by way of estoppel, the husband’s interest as heir of the wife, for the purpose for which the deed was made ,* but not the shares of other heirs, her children, two of whom were the trustees.

*Heidi*also, that it was competent for the trustees to show, by parol, other considerations, as that they were to reimburse themselves for certain expenses of husband and wife before the trust deed was executed.

Held, further, that the second purchaser at sheriff’s sale was entitled to no more than the surplus of husband’s distributive share, (one-third,) after all incumbrances under the trust deed were satisfied out of that share.

*Before*Dunkin, Ci-i., *at Abbeville, June,*1852.

Dunkin, Ch. It is admitted that Christiana Hamilton, the mother of the complainants, and of some of the defendants, became, while a widow, the proprietor in fee of the premisés described in the pleadings. She afterwards married Joseph A, Hamilton. In the early part of 1849, the premises were levied on by the sheriff of Abbeville district, under executions against *435Hamilton, and sold to Nathaniel J. Davis, at public outcry, for the sum of two hundred and thirty-three dollars. On 5th February, 1849, the sheriff executed a conveyance of the premises, together with the appurtenances, “ and all and singular the estate, right, title, interest, property, claim or demand, which the said Joseph A. Hamilton, at the time of the sale of the said house and lot, had in the same.” According to the proof, the house and lot were then worth fifteen hundred dollars; and it was announced at the biddings, that the sheriff sold only “ Hamilton’s interest in right of his wife.” It appears, also, that neither Hamilton nor his family were living on the premises during the year 1849.

On the 19th November, 1849, a conveyance of the entire premises was executed by Nathaniel J. Davis, Joseph A. Hamilton, and his wife, Christiana Hamilton, to the complainants, in trust for the purposes therein declared. The rights of Nathaniel J. Davis are recited, and, on his part, the deed purports to warrant the premises only during the joint lives of Hamilton and wife. On the part of Hamilton and wife, there is a general covenant of warranty in fee. *The trusts are, that the grantees should make sale of the premises, and from the proceeds pay, in the first place, to Nathaniel J. Davis, the amount of his bid at sheriff’s sale, with interest thereon, and hold the surplus to the sole and separate use of Christiana Hamilton, not subject to the debts, contracts, control or engagements of her husband; and “to effect and carry out such end, the said Joseph A. Hamilton,” should he have “ any. interest in said proceeds of sale, thereby assigned, transferred, and set over the same ” to the complainants. *(a)*

*436It seems from the evidence, that Hamilton was sold out early in 1849, and that he, with his family, removed to a rented place. The complainants were not inmates of his family, but they furnished the family with two negroes, and purchased a horse, to work in the crop, and made other advances. The witness, N. J. Davis, says that the deed of November, 1849, was made with a view to cover the expenses of living of 1849, incurred by complainants, for Hamilton and wife; that the negro hire was part of the expenses; that “ when the deed was executed, the accounts for hire, &c., were spoken of, and estimated, in making the deed. Witness did not know exactly the amount of complainants’ accounts for rent of land, hire of negroes, horse, furnishing provisions, &c., but he thinks thejr were reimbursed, for their outlay for Hamilton and family, except as to the horse and as to the negro hire.” It uppers to the Court, competent to show by parol evidence, as in *Banks*vs. Brown, (2 Hill, Ch. 565,) additional considerations besides that set forth in the deed. But the complainants specially undertook to reimburse N. J. Davis for the sum paid by him at sheriff’s sale, in February previous. A note of one of the complainants was accordingly given to him, when the deed was executed, for the sum of two hundred and fifty-nine dollars, with interest; which note has been fully paid to him by the complainants. As has been said, both N. J. Davis and Joseph A. Hamilton, and his wife, joined in the deed to the complainants of 19th November, 1849. Six *437weeks afterwards, to wit, 30th December, 1849, Christiana Hamilton departed this life, and the complainants had made no sale of the premises. In January, 1850, the sheriff again levied on the premises, under an execution against Joseph A. Hamilton, whose interest was purchased by the defendant, David Keller, (with notice of the deed of November, 1849,) for the sum of one hundred dollars.

The deed of November, 1849, was supported by a valuable consideration; and Joseph A. Hamilton, or any one claiming under him, is estopped from disputing its validity for the purposes therein set forth. But the ulterior trusts of the deed ceased with the life of Mrs. Hamilton. No provision is made for the appropriation of the fund after her death. If she had executed a formal release of her inheritance on the deed of November, 1849, and the complainants, having sold the premises for two thousand dollars, and reimbursed themselves, had held fifteen hundred dollars for her sole and separate use, and she had then died, her husband would be entitled to his distributive share of what was left. His deed only estops him to the extent of the purposes therein declared. But those purposes were, to reimburse the complainants, and then secure the fund to his wife during her life. Mrs. Hamilton, however, never parted with her inheritance. Joseph A. Hamilton’s interest, which accrued on the death of his wife, was affected by his covenant in the deed of November, 1849. (1 Inst. 476.) Bútthe.complainants can only be regarded as incumbrancers to the extent of their claim ; and, subject thereto, the interest of Hamilton, vested in the defendant, Keller, under his purchase at sheriff’s sales. (2 Story, Eq. § 790.)

It is ordered and decreed, that the house and lot be sold by the Commissioner, at such time and on such terms as the parties interested, or their solicitors, may agree upon ; and in default of such agreement, as the Court may fix by a future order; that from the proceeds of sale the cost of these proceedings be first paid; that two-thirds of the residue to be distributed among the children of Christiana Hamilton, deceased ; that out of the re-*438retaining third, the complainants be reimbursed the amount paid to Nathaniel J. Davis, with interest thereon; as also the value of the services of the two slaves for the year 1849, and of the horse furnished; upon which several amounts the Commissioner is directed to report; that the surplus of the said third be paid to the defendant, David Keller.

The defendant, David Keller, appealed, on the grounds:

1. Because, at the first sale by the sheriff, N. J. Davis purchased the right to the usufruct during the joint lives of Hamilton and wife, which he enjoyed; and he is not entitled to be reimbursed from any source.

2. Because the deed of 19th November, 1849, is a mere nullity. N. J. Davis never executed it. Joseph A. Hamilton had no right which he could convey; all his interest, during the life time of his wife, having been previously conveyed by the sheriff to N. J. Davis; and Mrs. Hamilton, being a *feme*covert, could not convey, without relinquishing her inheritance.

3. Because the distributive share of J. A. Hamilton in his wife’s estate, which had no existence until her death, is improperly charged with the purchase of N. J. Davis, and the expenses of the family of Hamilton for the year 1849.

4. If the deed of November, 1849, is held to be good as against Hamilton, that will not authorize the incumbering of his share with what N. J. Davis paid for the usufruct during the joint lives of Hamilton and wife.

5. But if the purchase of N. J. Davis is an incumbrance upon the estate, it is an incumbrance upon the whole estate, and not a charge exclusively upon the share of Hamilton; and whether it constitutes a charge upon the whole, or upon Hamilton’s share, that incumbrance has already been more than discharged by rents and profits received exclusively by the complainants.

6. The deed required the complainants to sell the lot, and from the proceeds to pay to the said N. J. Davis the amount of his bid, &c. The sale has not been made, but the rents and *439profits, since the death of Mrs. .Hamilton, will more than pay Davis the amount of his bid at the first sale.

7. Because, at the time of the execution of the said supposed deed, Hamilton was largely indebted, by judgments, to defendant, Keller, and others; and any attempted conveyance by him of any interest he had, or might have, in the premises, would be fraudulent, and void as to creditors.

8. If the share of J. A. Hamilton is affected by his covenant in the deed, it can only be so to the extent of the consideration received by himself and family, and. that is limited to the expenses of 1849, already reimbursed. If his share is to be burdened with the bid of N. J. Davis, complainants should be required to account for the rents and profits of the premises, of which they have been in possession.

The plaintiffs also appealed:

Because the deed of 19th November, 1849, founded on a good consideration, was a valid conveyance of the possibility of Joseph A. Hamilton to complainants, and an estoppel to him, and all claiming under him, or was an assignment of all his possible interest to complainants.

Wilson, *McGowan,*for defendant.

Thomson, contra.

(a)

 The following is a copy of the clauses of the deed in which the trusts are declared :

ccIt is understood that the said E. Lewis Davis and Joseph A. Davis will, as soon as convenient, make a sale of the house and lot above described; and a valid and absolute title, in fee simple, to the purchaser, who is not bound in any way to see to the application of the purchase money, below directed, but only to pay the same to E. Lewis Davis and Joseph A. Davis, or their heirs or assigns; from the proceeds of this sale, the said E. Lewis Davis and Joseph A. Davis shall pay to the said 1ÑT. J. Davis the ’amount of his bid at the purchase at sheriff’s sale, as aforesaid, and his lawful interest on such bid, until his money has been paid to him. All the residue of the proceeds of such sale the said E. Lewis Davis and Joseph A. Davis shall keep in their hands, not to be paid to the said *436Joseph A. Hamilton; nor in any way subject to his disposition or control, nor in any way liable for bis debts, nor shall pass by any assignment of him, the said Joseph A. Hamilton ; and in no manner, in I/aw or Equity, the said monoy shall be liable for said Joseph A. Hamilton’s debts, contracts or obligations, nor subject to his control, nor assignment. And to effect and carry out such end, the said Joseph A. Hamilton, should he have any interest in said proceeds of sale, hereby assigns, transfers and sets them over to the said E. Lewis Davis and Joseph A. Davis.

*11*The said E. Lowis Davis and Joseph A. Davis are to hold in trust the said proceeds of sale of said house and lot, for the sole and separate uso and behalf of said Christiana, the wife of said Joseph A. Hamilton, subject to her separate control and disposition, and her’s only. To be paid for her, and to her, in such sums and amounts, principal and interest, as she may designate and desire, by the said trustees, and her separate discharge, acquittance or receipt, shall be a sufficient voucher to the said trustees, E. Lewis Davis and Joseph A. Davis. The whole sum to be subject to her absolute, separate and alone control, as sho may direct the said trustees to apply it. Only the legal interest shall remain in the said trustees forever, whilst any of the said proceeds remain unexpended, in order that the marital rights of the said Joseph A. Hamilton may not attach upon the same.”

The opinion .of the Court was delivered by

*Dunkin,*Ch.

The deed of November, 1849, though void as to Christiana Hamilton, was valid as to her husband, Joseph A. Hamilton; and so it was ruled in *Brown*vs. *Spann, 2*Mill, *12.*The deed purported to convey the entire premises, with a general warranty. However limited the interest of Hamilton might then have been, or if he had no interest, this affected the right which he subsequently acquired upon the death of his wife. Such is the doctrine of the authority cited in the decree ; and in 1 Atk. 489, it is said, if a man convey land which is not *440his, and he afterwards purchase the land, or it descend to him, the lease shall enure by way of estoppel. The subject is elaborately discussed by the Court of Appeals in Equity, in the case of the administrator of *Smith*vs. Buford, Ms. Col. 1822.

The deed of November, 1849, was sustained by valuable consideration, and, if the grantee had been a stranger, it would seem to follow, that, on the death of Mrs. Hamilton, the right of her husband was in bis grantee under the deed of November. The right of Mrs. Hamilton’s children not being affected by the deed, two-thirds of the inheritance vested in them, and they became, at law, tenants in common yiith the grantees under the deed of November, 1849. But, for the reasons stated in the decree, the title in this Court is considered to pass to the grantees only for .certain purposes, and when those purposes were accomplished, the grantees were accountable for the residue or surplus. It makes no difference in the relative rights of the parties, that the grantees in the deed were sons of Mrs. Hamilton. They paid a valuable consideration, and occupy the position of purchasers. The question of most doubt is, whether any interest passed to the defendant, Keller, under the purchase from the sheriff, in January, 1850. The principle is. thus stated by Sir James Wigram, in *Bourne*vs. Bourne, 2 Hare, 38: “If the trustee had taken the property with absolute directions to sell and convert it, the circumstance, that the directions had not been carried into effect at the death of the testator, might have been immaterial, and it might have been treated as personalty. But, in this case, there was *no*absolute or compulsory direction for the sale or conversion of the estate ; it is merely an authority, in a certain event, to enter into possession of this estate, and, at the discretion of the trustee, to sell it, for the purpose of recovering payment of the debt for the mortgage.” So, here, the Circuit Chancellor thought there was no such clear indication that the land should be converted, out and out, as to prevent it from retaining the character of realty. It is not very clear. But Keller is also a judgment creditor of Hamilton; and, besides, there is no appeal on this point. It is not an inquiry in which *441the complainants have any interest. It could only be important to Joseph A. Hamilton, or his general creditors.

It is ordered and decreed, that the appeal he dismissed.

Johnston, Dargan and Wardlaw, CC., concurred.

*Decree affirmed.*