*Orangeburg.*

Heard by Chancellor James.

#### Barton and others, *vs.*Rushton and others.

Fraud will mot be lightly presumed against the denial of the answer.

A judgment against a man who has contracted to purchase land, and has taken a bond from the vendor to make titles, and has paid part of the purchase money, does not bind this equitable title, which is incomplete, and may be rescinded by the parties, if done without fraud, especially where the agreement was, that if the money was not paid by a particular day, the bond to make titles should be void; and the payment was not made. No such estate vested iu the purchaser as could be subjected to the judgment.

Under such circumstances, this court will not interfere to enjoin the party entitled at law, under a verdict and judgment, from holding, the same.

This case came to a bearing, and the judge delivered the following decree:

This case originated at law, where defendants were enjoined from proceeding on a judgment obtained there, in an action of trespass, to try title to the lands in the bill described.

In the suit at law, the complainant, Martin, was the tenant of Barton, in possession of the land, and need not be further noticed here.

The present case is briefly as follows : One Jacob Hutto, now deceased, being possessed in fee of 100 acres of land, sold it to John liushton, one of the defendants, *374for $80 ; and John [tushton enteje.i into possession of the same. That while he was so possessed, a certain Thomas flail obtained a judgment against him, in the month of March, 1802, and afterwards on the 26th April following, levied his execution upon, the lands. That on the rth Jane, in ths same year, the Sheriff of Orangc'onrgh sold the land, which was purchased by the plaintiff, Hall, for $40 50. That the purchaser ordered the tilles to he made to the. complainant, Barton; and that the sheriff made him a title-, which is dated on tha day of sale.

FEB’Y. 1813

Complainant charges in his hill, that about the time the execution was issu'd, John Rushton fraudulently colluded with the said Hutto, to take back the title for the land, and defeat the judgment. That Hutto did so, and afterwards, on the 26th March, 1806. sold the said la > Is to Sherwood ilushtan. That. Hutto had ni ido a title to John Rushton, which was never recorded, and that they destroyed it. That Sherwood Rush ion afterwards died, and after Ins death the defendants, as his heirs, brought their action at law, and recovered the lands.

The bill states particularly (what in this case is very material) that the reason why the recovery was hud at law, was because of a defect of testimony, which is in the possession or know)' ge of defendants alone. A ¡d that the said defect of testimony consisted in not ssili-cic nil,v proving the, deed of conveyance from Hutio to John Rushton : And complainant now prays a discovery of the same.

AH the answers deny fraud or collusion between John Rushton and Hutto; but only Robert and .folia Rushton have stated what besides the denial of fraud appears to be relevant. Robert Rushton answers, that he witnessed a bond, or writing between Jacob Hutto and John Rushton; and believes, the exhibit A, accompanying the answer1 of John Rushton, to be a copy of the same; but what is gone, with the original, he- cannot sav. That John Rushton lived on the- land about the year 1801. and continued on it. about twelve months. John Rushton stated ia his answer, that Jacob Hutto sold the land to him *375conditional!}', for £>80, about January, in the year 1801f <o be paid the 20th of March, 1802 ,• on whidi event he was to make him *titles;*and in rase the money was not then paid, the contract was to he at an end. All which would appear by a written instrument, if defendant had the same to shew, but a copy of which is hied, marked A. That finding it impossible for him to pay for tbeland, he applied to Hutto early in 1802, io rescind the contract, which Hutto consented to do ; and he dclheml' up to him the the writing abovomentioned. That lie held possession of the land fourteen or fifteen months, and offered it several times for sale, with a vierv of paying for it, and realizing something. The complainant produced much evidence, the most material of which is as follows :

Henry ¡Mills, deposed, that John Rush ton lived on the land at the time of the levy, and he heard Hutto say be had only endeavoured to save the land for the poor fellow. That he had sold him the land and made him as good titles as he could make him; and that John Rush-ton had paid him all the money for it, but fifteen dollars.

Lazarus Kelly also deposed, that Hutto told him all the purchase money of the land was paid, except fifteen dollars.

George Kelly likewise stated, that after Hall obtained judgment against John Rushton, he heard him say, that he would be fast enough for- Hall yet; for he would gh e up the titles to Hutto, and prevent the land from being taken under execution.

Such is an abstract of the evidence so far as it appeals to be. relevant.

I shall now, first consider the plea to the jurisdiction of the court, which has been made *y*and afterwards, the effect of this testimony.

The p!«a is, that the court of law had competent jurisdiction to try the question of fraud, except in the purging of defendants consciences : and the complainant having called fora discovery on that matter, and the fraud being denied by the answers, that he is precluded from giving evidence to contradict them, and from proceeding any further in the case.

*376Hutto, is therefore placed beyond any doubt. And haring established this ground, we now proceed to the eqniiar ble subjects of jurisdiction above mentioned.

We have seen that they arise on the doctrines of discovery, spoliation, and specific performance.

In compelling a discovery, this court has exclusive jurisdiction, and I need not at this day cite an authority to shew it. In cases of loss or spoliation, equity is fa? vorabiy inclined towards the applicant, in odium spolia-toris : and for specific relief, there is an unceasing call for equitable interference. To which may lie added, as it seems to apply here, that correlative branch of equity jurisdiction, which is exercised in putting a salutary stop to injurious proceedings, by decree of injunction. See Ambler, 209 j Anon. Rob. on Frauds, 85, 129 ; 1 Fonbl. 149.

Having premised so much, I shall now proceed on the grounds proposed.

And first as to the discovery — The answers of Jolm and Robert Rushton afford full evidence that the contract was reduced to writing. This fact is very important lor the complainant, since it takes his case out of the statute of frauds. And as complainant, has aliedged, that he could not prove, the deed of conveyance at *law;*and also as the discovery could not have been obtained there, without the aid of this court; these, circumstances go at once to shew that the. subject matter of this suit is proper for equitable, cognizance.

On the grounds ^spoliation and specific performance, there arise two questions for consideration.

The fact of cancelling being admitted by John Rush-ton, and it also appearing that the judgment had deprived him of all right to rescind the contract, First, whether, under these circumstances, coupled with the, testimony against him, such cancelling will not be deemed a spoliation.

Second, — If John Rushton had applied against Kutt» here, for a specific performance of his contract, whether, under the, contract and the, facts developed, the court would not have decreed it j and what consequences would result therefrom as to complainant ?

*377and important discoveries have been made on this head, by the answers above cited.

These are, First, — That the contract was in ■writing,’. Second, — That John Rushton had possession under it. Third, — That the instrument was cancelled. And fourth, — We find from other testimony, that John Rushton was possessed of the land at the time judgment was obtained; and that all the. consideration money was paid except fifteen dollars.

It is true, some of these facts might have formed a ground of defence at law; but still they also give rise to certain subjects here, over which equity exercises, either an exclusive, or a more highly favored jurisdiction than eourts of law.

These are, discovery, spoliation and specific relief. We shall hereafter consider these, mid at present clear the way to them.

First, — 'By establishing the validity of the bond, acknowledged by the answers, which has been said to b e inefficacious.

It has been stated by the defendant, John Rushton, that the bond was conditional, and that if the consideration money named therein, were not paid by the 20th March, 1802, that the contract was to be at an end. He has also denied that any consideration money was paid. But I find that this assertion depends' upon his answer alone, where it is stated as a matter of defence, which is not called for by the bill.

In this shape, it is no evidence, but abare allegation, ■ Which is contradicted : for both Mills and Kelly have agreed in their evidence, that Hutto told them he had received all the money but fifteen dollars. Now what Hutto said was against himself, and therefore ought to he credited. Rut even supposing what Hutto said was not evidence, yet we have other testimony which shews that the judgment attached while John Rushton was possessed of the lands : and after that, how could any power remain in him to rescind the contract with Hutto ? That power had certainly passed over to the judgment creditor. The validity of the bond to transfer all right from *378Hutto, is therefore placed beyond any doubt.. And having established this ground, we now proceed to the equitar hie subjects of jurisdiction above mentioned.

We have seen that they arise on the doctrines of discovery, spoliation, and specific performance.

In compelling a discovery, this court has exclusive jurisdiction, and I need not at this day cite an authority to shew it. In cases of loss or spoliation, equity is far vorably inclined towards the applicant, in odium spolia-tions : and for specific relief, there is an unceasing call for equitable interference. To which may be added, as it seems to apply here, that correlative branch of equity jurisdiction, which is exercised in putting a salutary stop to injurious proceedings, by decree of injunction. See Am* bier, 209 ; Anon. Rob. on Frauds, 35i 129 ; 1 Fonbl. 149.

Having premised so much, I shall now proceed oa the grounds proposed.

And first as to the discovery — The answers of Job a and Robert Rushton afford full evidence that the contract was reduced to writing. This fact is very important for the complainant, since it takes his case out of the statute of frauds. And as complainant, has alledged, that he could not prove the deed of conveyance at law $ and also as the discovery could not have been obtained there, without the aid of this court; these circumstances go at once to shew that the subject matter of this suit is proper for equitable cognizance.

On the grounds (^spoliation and specific perform» anee, there arise two questions for consideration.

The fact of cancelling being admitted by John Rush-ion, and it also appearing that the judgment had deprived him of all right to rescind the contract, First, whether, under these circumstances, coupled with the testimony against him, such cancelling will not be deemed a spoliation.

Second, — If John Rushton had applied against Hutto here, for a specific performance of his contract, whether, under the contract and the facts developed, the court would mot have decreed it j and what consequences would result ■ therefrom as to complainant ?

*379Ou the first of these questions, it inis been seen, that the answer of John Rushton admits the cancelling, yet he wishes to make it out, that it was not a spoliation. B at it is for the court, and not for him, to draw a legal inference from his admission. The evidence of George Kelly shews, that his intention was to defeat the execution, by some means, without positively contradicting bis answer 5 and taken as an independent fact, this testimony goes the length to raise a presumption of spoliation j and this is ail that is necessary. For the fact of destruction, from the nature of the tiling, can only, and therefore 5s required only, to be made out upon grounds of strong inference, and probability. — Ambler 247, Salturn *vs.*Mclhuish ; 1 Vezey, SS7, ’Wiiitield *vs.*Fausset.

On the second question, it appears that little need he said. After paying the sixty-five dollars, if John Rush-ton had brought his bill offering to settle the balance, and praying for specific performance of the contract, there rannot be a doubt but this court would have decreed it. Now, as the assignee of a judgment creditor, tiie complainant stands virtually in the shoes of John Rushton 5 tin* injunction which he has obtained, when properly mo-delled, will operate substantially and in like manner, with a decree for specific relief; and equity, disregard» ing forms, looks only to the substance of things. So that the spoliation and complainant’s title to relief, appear to be \ví ii established.

Hut defendant's counsel have raised an objection, namely, that Sherwood Rushton was an innocent purchaser. But from the several dates mentioned, it is evident that ho bought the, lands from Hutto, more than three years after the judgment, the levying of the execution, and the sale by the sheriff. Now in the face of all these public, proceedings, especially the judgment, I cannot conceive how he i« to Le considered an innocent purchaser. So that the objection falls to the ground ; and. we approach the end of a case, involving little property it is tree, buf as much litigation as if the dispute had not been about a piece of pine barren soil, but a great principality.

*380If Hutto, or us be is dead, if his representatives hail been parties to the suit, I would decree the balance of fifteen dollars to them; but as they are not, I am at a lass where to bestow it,

Therefore it is decreed that the injunction be perpetual *;*That the defendants do deliver the title deeds for the land to the complainant Barton j and that they do pay the costs of this suit.

(Signed) “W. D. James,

From this decree an appeal was made, which was heard, and a majority of the court delivered the following judgment:

The decree of the Circuit Court appears to hav© been predicated on the ground that the recision of the contract between Hutto and John Rushton was fraudulent j and also that the bond for titles vested in John Rushton a sufficient legal estate for a judgment and execution to attach on. As to the first point, to wit, the alleged fraud and collusion between Hutto and Rushton, there is no evidence in support of the suggestion, except the loose and vague expression of Hutto, that he had endeav-oured to save the land for the poor fellow, which is not a sufficient foundation to infer fraud, it being a principle in this court, that fraud shall not be lightly presumed. But admitting this circumstance should be considered as having some weight, its influence is entirely destroyed by the denial of every species of fraud in the answer. The bond for titles was conditional. The payment of the purchase money was a condition precedent 5 and if it was not paid by the 20th of March, 1802, it was to be void. There can be no doubt, but that in every contract, the parties making, possess the power of dissolving it. And this contract was as completely within the controul of the parties as any other which could be formed. They had the right to rescind, and they did so. But admitting this did not take place, the instrument upon the face of' it operates its own dissolution : if the money was not paid by the 20th March, the bond was to bo void. The whole of the money was not paid, and the' bond became a nullity. *381With respect to the liability of this laud to discharge John Rushtou’s debt, there can exist no doubt. He had neither a legal or equitable right; no legal right, because the land had not been conveyed to him $ and he could have no equitable right, until ho paid the purchase money. It is contended that this bond vested a right in John Rusbton to the fee; but the fact is not so j the greatest right that could arise to John Rusbton from this bond, would have been, to have taken the case out of the statute of frauds, in case of his having instituted his suit for a specific performance. It is a very clear case that the land was not.liable to an execution for John Rusliton’s debts. That Hall’s purchase from the sheriff, was invalid ; and of course Timothy Barton’s claim has no legal or equitable foundation.

It is therefore ordered and adjudged, that the decree of the Circuit Court be reversed ; that the injunction be dissolved, and that the appellees Philip Martin and. Timothy Barton do pay the costs of this suit.

Henry W. Desaussttke.

(Signed) Thomas Waties.

W. THOMPSON.

Judge James

differing from his brethren, delivered the following opinion:

In this case there are two points upon which there is a difference of opinion :

First, — Whether the execution of Hall mentioned in the decree below would attach upon the lands in the possession of John Rusbton, under the conditional bond ?

Second, — Whether there was such fraud as would vitiate the second contract made between Hutto and Sherwood Rusbton.

O11 the first question I stand alone. On the second, I am supported by one of my brethren.

As to the first point, it appears that the bill was filed for an injunction and frsem cry. The disooverymade, was that there existed a conditional bond to make titles to lire land between Hutto, the vendor, an..' J-hn -lusiii:i *n*the tendee. This was the first contractjmiuic, which was *382dated in 3 801. The consideration money mentioned therein was eighty dollars; upon payment of which Hut-to waR to make tilles : ami upon failure, the bond was to be void. John Rushton was put in possession of the lands, and held them for fourteen or fifteen .months, and he paid sixty-five dollars of the consideration money. In 2806, he ami Hutto rescinded the contract as between themselves; but there was no proof of the repayment of the sixty-five dollars to John Rushton. They cancelled the bond, and Hutto made a second title to Sherwood Rushton. By other evidence adduced on the trial, it appeared that while John Rushton was in possession in 1802, Hall obtained judgment against him and issued his execution. It was levied upon the land, and Hall offered Hutto, by his agent, thirty dollars to quit his .@1 aim. which he refused, saying, he had made titles tor John Rushton.

From the scope of the evidence, it appears that the sheriff got possession of the grant and title deeds, either from Hutto or John Rushton, and that he afterwards sold the land at sheriff’s sale, and Hail became the purchaser. Hall sold to Kelly, and Kelly to Barton, the complainant. Now, both in an equitable and legal point of view, the execution will attach upon the lands, as those of J. Rushton, under the conditional bond. Both these positions are'capable *of*demonstration. I grant that the parties to this conditional contract had a right to rescind it while it remained executory; but by the possession and payment by John Rushton of a material sum, and not of mere earnest money, the contract became executed by part performance, and upon an offer of the balance, this court would decree specific performance. Hagood *vs.*Neal *g*Pre. Chan. 561. 1 Pow. 30.9.

At this time the right of Hall commenced under his execution; he stepped at *>*nee into the shoes of John Rushton, and offered toj>ay thebalance. This was doing all that equity required; and the liberty of the contracting -parties to rescind the contract, was now at an end, The-y both had notice of Hall’s right; and if they annulled the contract without his consent,' if was an in-*383'fKngement of that right. Now the powers of a Court of Equity, called emphatically a court of conscience, are not confined to things tangible alone by the senses, it will lay hold on the cofsoiences of men, and mould them so as to 'make them conform to the principles of justice. í4And it will prevent a wrong, even where the positive law is silent.” And again, « there is no magic in words, or technical *expressions; the*party contracting has not an election, to perform his contract- or not; in conscience he is clearly bound todo the specific thing which he has covenanted to do. 1 Fonb. 35, *5G*— But. which obligation a court of law cannot in all ease?, enforce.” Hall had a right or demand. Hutto and Rushton were bound by a conseiencious obligation not to defeat that demand. They have attempted todo so. Then will equity give him relief *?*It certainly ought. Setting aside technical forms, equity ought to shape either the execution or its “ injunctions,” in such a way as to cause it to attach upon the consciences of the contracting parties, in order to prevent the wrong intended, and to establish the right, so that metaphorically speaking, and in .such language as this court often adopts, the execution will attach in equity upon the consciences of the parties. But further, at law it will attach upon the condition of the bond, such as it was after part performance. By the common law in England, a man could only have satisfaction by execution out of goods and «battles and present profits of lands upon feudal principles : afterwards by a writ of clegit provided by statute goods ami chatties were not sold, but appraised and delivered to the plaintiff. If these were not sufficient to satisfy the debt, then the moiety of the freehold lands of the debtor, whether held in his own name, or in trust, wore delivered to the plaintiff to hold, till out of the rents and profits the debts be levied.

Thus wo find that executions in England were not issued against the whole estate in lands, tenements or hereditaments. But by the statute of 5 George XL for the moro easy recovery of the debts In the colonies, and Whisk is made of force in this state, feudal principles are *384laid aside, and the houses, land, and negroes, and other hereditaments and real estates of debtors, are made liable to execution. By the county court act, tenements are also made vendible under execution; Hie words he-feditaments is inserted in our common fieri facias, and not in the English precedents. 2 Black. 17.

Judge Blackstone says, that hereditaments, to use the largest expression, are of two kinds, corporeal and incorporeal. Corporeal consist of such as affect lh« senses, such as may be seen ami handled by the body. Incorporeal arc not of sensation; can neither be seea nor handled, are creatures of the mind, and can only exist in contemplation. This definition alone would «aery us to an extent, which those confining themselves to common law principles, and not recollecting that we are governed by statute law on this subject, are but little aware of. But farther, lord Coke says, that a hereditament is anything which may be inherited ; and so a condition, the benefit of which may descend to a man from his an-, cestors, is also a hereditament, which last decision completely proves my position, that the execution at law will attach upon the condition of this bond, to make titles ; for the benefit of such condition as is contained therein, will descend to a man from his ancestor. The extent of this doctrine cannot possibly be an objection to it, since in justice every part of a man’s property ought to be liable for his debts. It is easy too to distinguish between the liability of a vendor or a vendee, if part performance be made to constitute the line of distinction. The good policy of extending the lien of executions is also well worthy of serious consideration. In tlie state of New-York, this policy has been adopted to a great extent, and that too by the bench of Common Pleas judges, where it has been solemnly decreed, “ that a resulting trust capa--ble of proof, is vendible under execution. And by the converse of the proposition stated in another case, that an equity of redemption is also liable to execution at law.”1

On the impolicy of confining the lien of the execution in this case, I will barely observe, that in this lately settled country, slight evidences establish a good title to *385lands. And it is notorious that the most common right made for lauds by vendors, is a conditional bond to make titira: Then to decree that such lauds in the bauds of purchasers» shall nut be liable under any circumstances, *(lav*this goes that length,) will be completely opening the «loor to frauds. All that is necessary for a purchaser to do, will be to pay up a material part of his purchase money, then to leave his titles incomplete, and he may bid defiance to his creditors, if part of the consideration money be paid substantially, if it exceed the hounds of earnest money, and something be done as owner of tlio estate, the \ endec will be equally safe, as against the vendor, so that on all sides his conditional bond will be a wail of defence; against the vendor, because he may pry up the balance and rest upon his imperfect title; and. against the creditor, because by the present decision of the equity beneh, such title, is not vendible, under execution. For the above reasons, i am of opinion that the eíccuífon in this case will at.ach upon the conditional bond, under the circumstance of part performance.

We come next to the second question of fraud ; — I think it more plain than the first, because it does not rest upon abstruse principles.

1 mean to confine myself to statutory, which is peculiarly within the province of equity : and to shew, firsr,- — . that Joseph and John Rushton were the original contrivers of the fraud, and therefore ought not tobe benehthd by it. Second, — That Shenvood Jiushton was. connu-sant of the claim of Hall, and of the fraud, and therefore his title is vitiated — and the claim of all the defendants being derived from it is void.

. John llimhton was called upon for a discovery, and to purge his conscience of the fraud. A simple discovery or a direct denial of the charge was ail that was necessary for his defence, and all that was required by the bill. Ho makes the discovery and denies the fraud *;*bin; he afterwards goes on to state that the contract was rescinded and the bond cancelled, and his intentions were upright in ail matters regarding the rerision and cancel-ling. 0 u£ it was his business to state facts, and for! he court *386to draw the inferences. The fact of cancelling orig'naied with himself j it was neither charged in nor called for by the bill: and mat,tor, pleaded in evidence are not evidence» <• for where a defendant confesses and avoids, as to the evidence, he is as a plaintiff! Then as to the cancelling, the testimony of the witnesses is to be received against tin answer, independent *oi*the plea in bar, and they establish the motive with which the cancelling was done. They testify ;hat John Rushton said, after tho judgment was obtained, that he would be fast enough for flail yet; that he would give bark his title and defeat the execution. His m >tjve therefore- in eanceUiug, was to defeat the rights of Hail, a ihird person who was implicated, and not con, seating to the transaction.

a spoliation íl-imiton, which wujhi oe enough for This evidence is s nleient to establish on the part of J, mv present purpose 3 but the fraudulent motive can ais® be brought home to U.iU'o_Roberts on Frauds, 85-ti.

In 1802, lie bad waived all claim to the land ; and in 180(5 he -ad. the second title to Sherwood IL;sM;m in, the face of his w aiver; and three witnesses have testified that he said he did so t.o save the lands for the poor young fellow, naming John *Rushton;*for his expected loss was tho subject of conversation at that timo. But in saving Itushton, his motive also was to defeat the claim of flail. Now this brings back the intention of Hutto to the same-point with that of John Rushton, namely, to a deceit prac-tised upon one who was not a party to the contract: — . But particular persons in their contracts shall not only contract bona fide among themselves, but shall not contract mala fide in respect to other persons, who stand in such a relation as to be either affected by the contract or the consequences of it. — Lord Hardwicke- in Chesterfield *vs.*Janssen.

Hutto might have been led into this weakness in favor of a neighbor, by mistaken motives of humanity, or by his imposition ; bat still, this will not alter the case; it may acquit him of gr-»ss immorality, hut still the legal fraud will remain. For equity will construe even silence,' *387sonnecfed with a weakness of tbe most amiable kind, into a 1; gal fraud. — gViner, 150, Henderson us. Cherry.

Some doubt was raised here as to the ev ideare — not as to Hutto’s admission, for that point was ceded ; but as to there being loose and vague- declarations.

Now I answer, that it was the evidence of three witnesses-uuirapeaclieiL Admit the doubt here, — then it must apply generally ;■ — -and where will it lead ? YV ill it not be to the entire exclusion of parol testimony ? Certainly it will: arid are those who doubt prepared to meet the objection to this extent. The doubt tlieu must be as to the credibility of the witnesses. But Í have already observed, that their credit stands unimpeached : Besides, I have always thought that tbe court into which witnesses are introduced, and which inspects their manner and attends to their matter, can form as good an opinion of their credibility and accuracy as need be required. — * No other court can have the same opportunity.

What I have said only goes to establish the fraud oa the part .of John Rushton and Hutto ,* but Joseph Rushton is also implicated.

He states in bis answer, that he believes there was no fraud in Sherwood Rushton’s obtaining the. title to the land; but says nothing of the part which he took in the business. Now Kelly has proved that he tampered with him to get possession of the grant and title-deeds. His son, Sherwood, then lived under his roof, subject to his control; and the presumption of collusion becomes in these points of view strong against him; but to place parties under a disability to commit fraud, certain transactions of an equivocal or ambiguous nature, are construed to be fraudulent in judgment of law — Roberts on the Statute of Elizabeth, 189, At present by the death of Sherwood Rushton, both Joseph the father and John Rushton his son have become interested in thasurt. Now it has been a long established rule, that' what is good at the beginning cannot become fraudulent by matter, ex post facto. 9 Roberts on tbe Statutes 189, 517, 521, 2. To which rule however, there are exceptions in favor of creditors and purchasers ; then in favor' *3880f these the converse of the rule- must hold still more ' strongly.

That a transaction fraudulent at the beginning cannot become good by matter ex post facto, more especially when the original contrivers and actors in the fraud are to be be-nefitted. At lav fraud must be proved — in equity it may be presumed, and inferred from suspicious circumstances and equivocal‘dealings,-which is the constructive fraud of the- statutes ;,bnt if it can neither be presumed nor inferred from a case under the circumstances of this kind? then Í am clearly of opinion there is an end of the equitable distinction in this country.

The second point under the last general question,next offers itself for consideration — -that is, whether Sherwood ilnshtou had sufficient notice of the right of Hall, or of the fraud to vitiate his title.

This would again divide itself into two different branches of considerable extent; but I shall consider it bri ñy in ene. For with a knowledge of the rights of Hall, either direct or constructive, his title would be bad. If the validity of the judgment and execution to attach has been established, and l am clear it has, the judgment will operate as a sufficient notice. If it lias not, still there are other grounds of notice. Sherwood Hush-ton lived near to his brother John, and as is before observed, under the roof and subject to the control of his father: both of these defendants were perhaps enemies : the facts relative to Hall’s claim were proved to be noto-yious in the neighborhood : and Sherwood Itushton dealt with Hutto who í¡ad notice.

Under all these circumstances the presumption against him is violent. It is sufficient under the statutes. But further, the grant and other titles, as we have- seen, were in the possession of the opposite party, and when at the second sale they were not produced, this certainly was sufficient to put the. vendee upon enquiry, and he could immediately have resorted to the vendor, who was connusant, for information. Even a defective title, much less a total want of title, was a sufficient construe- - tive notice: it‘was crassa neeligentia, that he sough* *389wot after it, and yet would traffic for what in equity belonged to another : so that the title of Sherwood Rush-ton is wot good against Kail, a creditor and bona fide purchaser. And further tracing it back to the fraudulent source whence it is derived, it becomes vitiated and void in the hands of ail the defendants.

For the above reasons I am of opinion that the decree of the circuit court ought to be affirmed.

W. D. Jambs.-