#### Lester Richards, *vs.*Daniel M‘Kie *and*John Vaughan.

*hand in the possession of a vendee, under an agreement to con- ■ vey upon the payment of the purchase, money, is not liable to be sold undt r judgment and execution against the vendee, though part of the consideration has been paid; nor ivill the court eompel the vendor to convey to the purchaser at sheriff’s sale, Upon his paying the balance of the purchase money.*

*Vendee, in possession under such agreement to convey, not having paid the whole of the purchase money, cannot acquire a title against the vendor by the statute of limitations.*

*The vendor having consented that the land should be sold under execution against the vendee, but having afterwards forbidden the sale in the hearing of the purchaser at sheriff’s sale, will not be compelled to convey to the purchaser.*

The bill stated that Daniel M‘Kie sold the land in dispute for *‡*500 to Henry Edge, who paid *‡*200 of the price sand took a bond for titles, and took and held possession of the land for tv?o years; that Edge sold the land and transferred the bond for titles to one John Vaughan, to whom he delivered the possession of the land, and he paid *‡*250 more to Daniel M‘Kie, who received the same, which left a balance of only *‡*50 to be paid, for which M‘Kie took Vaughan’s note of hand: that judgment was obtained by a creditor of John Vaughan, on or about the 20th November, 1820, and the land was sold under the execution and was purchased by complainant, for the sum of *‡ 137:*that Daniel *MiKie, before the sale,*repeatedly declared that *$*50 was all that was due to him, and when that should be paid he had no other claim on the land, hut would make titles therefor, and complainant procured the consent of Thomas Edge to the sale; but the said Daniel refused to receive the balance of the purchase money and interest, which was tendered to him, unless the sum of *$*800 was paid *185him, and colluded with Jolra Vaughan to defraud the complainant and to secure to themselves the laud. The bill prayed that Daniel M‘Kie might be decreed to execute titles to the land in question, and give up the possession thereof, upon the payment of the balance due to him, and which was tendered to him, or that the complatuant might have the relief adapted to his case.

The defendant Vaughan put in no answer, and a decree was taken pro. confesso against him.

The defendant Daniel M'Kie filed a demurrer, and also an answer to the bill. The demurrer was first argued, and was overruled, chiefly on the ground that the bill charged a collusion between the defendants, Daniel M!Kie and John Vaughan, to defraud the complainant and to secure to themselves the land in question, of which the complainant had been a fair purchaser. The answer of Daniel M‘Kie stated that the defendant bargained the tract of land to Thomas Edge about the year 1813, for the sum of $500; that $200 w'ere paid down and he gave a bond for titles, which were to be executed on the payment of the balance; that about 1818, Edge sold to John Vaughan and transferred the bond for titles; that at that time $200 more were paid, leaving unpaid *‡*100 and the interest on the whole from the purchase; that in the year 1821, Vaughan, finding himself unable to pay the balance of the purchase money, proposed to relinquish his contract and rescind the purchase; that it was acceeded to by defendant; that Vaughan gave up the bond for titles and a general and mutual settlement and discharge took place; that Vaughan relinquished all claim to the land, and the defendant advanced him a sum of money and released him from some demands to a considerable amount previously due; that on the 10th of August, 1821, Vanghan, by an instrument in writing filed, became the defendant’s tenant on the same land and promised to pay an annual rent; that after this, he the defendant understood that the land was advertised for sale. He denied that he caused any rumour to be circulated as stated, or that he made it known that on being paid the balance of the purchase money, he would execute titles to *186the purchaser at sheriff’s sale. On the contrary, he caused the sheriff to be directed not to sell, and employed a person to attend and forbid the sale. He admitted that complainant called on him and offered him some money, he knows not how much, and required a title; that he refused to make one, and evaded giving him any satisfaction as to the situation of the land, and admitted that he did not intend to make him any titles on the terms stated in the bill, nor on any other, except being paid a reasonable price for the land.

At the hearing of the cause, the following evidence was given on the part of the complainant: the bond from Daniel M‘Kie to Thomas Edge, dated 27th July, 1813, in the penal sum of *‡*1000, with condition there under written, that if Daniel M‘Kie, his heirs, executors or administrators should well and truly make or cause to he made a good and sufficient title of, in, and to a certain tract of land therein described (the one now in dispute) and should comply with his contract in relation to said land, then the above obligation to be void. On the bond was an endorsement by Thomas Edge, requesting Daniel M'Kie to make titles for the land to John Vaughan.

Mr. *Greer,*the witness who proved M'Kie’s bond, testified that he had it in his possession some time in August, 1822, or a little before the sale of the land by the sheriff- That Vaughan had placed it in his hands as a security for a debt. The witness offered the bond to M‘Kie, and requested him to make titles to him, under an order from Vaughan,' which he had. M‘Kie said there were *$*50 and interest still due him, and when that was paid, he would make titles, but not to witness;- and he requested him to tell Vaughan to come to him. Witness did not then offer the money to M‘Kie, because he said he wanted to see Vaughan; witness- told Vaughan, and Vaughan went to see’him; witness placed the bond back in Vaughan’s hands; after this, M‘Kie set up a pretence that he was owner of the land and Vaughan only his tenant, and Vaughan came back with a message to forbid the sale of the land as Vaughan’s property. He accordingly forbade the-sale, as M‘Kie had diyected; Richards, the complainant, was present and heard the *187¿ale forbidden, as M‘Kie claimed it as his own; all that passed witii M‘Kie was verbal.

*Charlas*Dea» testified that he saw Daniel M‘Kie a few days before the sale of the land. lie went to M‘Kie to know what was due on-tbe bond of Vaughan, and told him the reason of the enquiry and his desire to purchase was because he had a judgment against Vaughan, next in date to one other judgment. M‘Kie told the witness that *‡*50, and the. interest on it, was all that was due him, and when that was paid, he would make titles to the land, for he had no other interest. M‘Kie also said he might tell the sheriff he might sell the land as Vaughan’s property, and he would make titles when the money should be paid him: He added tha't Greer had been with him to make titles; he had not money to pay the balance due M!Kie, and. offered him a note, which was refused. Witness saw a bond in the hands of Greer, which is the one now produced to the e^rt. Vaughan was poor. Witness was present when Richards;applied to M‘Kie to make titles, and he said, I am willing to make titles on payment of the balance. Richards asked what was due? M‘Kie said there are seven or eight hundred dollars. Richards replied, you know that there are but *‡*50 due, and ' the interest on it. M‘Kie then said, where is my bond to make titles? — I cannot make titles till I get up my bond. Richards said, you have the bond — Vaughan says he has given it up to you; which M‘Kie denied, Richai'ds offered M‘Kie a hag of silver money to pay the balance; there were about *$*40 in silver and some paper money; but M‘Kie said I cannot take the money without my bond is given up to me. Vaughan was in possession of the land, and continues so now'.

*Shephard*testified that he accompanied Richards to M'Kie’s, on the 6th of September, 1822, directly after the sale of the land by the sheriff Richards informed M‘Kie that he had *bought*the land, and that he understood he, M‘Kie, had directed the sheriff to sell the land, and would make titles for it when the balance due should be paid. M‘Kie replied that he had, and that he would make titles when the balance due him was paid, which was all he wanted. At one moment M‘Kio *188said he would receive the money from Richards; but after .&• while he paused and said, I would rather have my bond up, or something to acknowledge that it was fulfilled, from Edge or Vaughan.

*Abraham Coffin*testified that when Greer went to M‘Kie to get titles, in August, 1822, Vaughan gave añ order toM‘Kie to make titles to Greer. Vaughan said there were about *‡*50 due to M'Kie.

*Mr. Crowder*testified that when sheriff, he sold Vaughan’s land under execution — that Richards was the purchaser — and witness executed conveyance to him on 5th Sept. 1822; which be proved.

The judgment wasin November, 1820; sale in September, 1822. It was admitted that M‘Kie forbid the sale. There was no evidence offered on the part of the defendants.

Chancellor *Desaussure.*— The bill being taken pro con-fesso.as to Vaughan, the charges, supported as they have been, by the testimony, will be taken for true against him. With respect to the other defendant, MdKie, there are two distinct grounds relied on, to prevent a decree against him. It is insisted that Vaughan, the holder of the land under the contract with him, which was a mere agreement to convey the land on the payment of a stipulated price, had agreed to rescind the contract, and had given him up the agreement or bond, on certain terms and pay - ments, which had been performed by him — and that Vaughan had a right to make this retrocession of the land to M‘Kie, because the first contract with Vaughan gave him a mere equitable title, and that the land was not boimd by the judgment against Vaughan, as equitable titles are not subject to the operations of judgments and executions.

There is no other evidence of Vaughan’s having agreed to rescind the agreement and return the land for a consideration which is alleged to have been paid, than the defendants answer.. He does indeed in his answer say, that such an arrangement was made and completed between him and Vaughan, prior to the sale by the sheriff. -His answer however is not evidence on this point: he was not interrogated to such facts, and his *189answer stating them is a new allegation and requires to be supported by proof. Such a recision of a written contract relating to lands must have been susceptible of proofs and required them: none are given. Defendant M‘Kie, in his answer states with precision the price originally agreed to be paid him by Vaughan for the land, and sets forth the exact payment .which he says were made him, but he cannot tell how much was to be paid Vaughan bn the recission, only that they had a general settlement of accounts, and he satisfied Vaughan by a horse, and in other things. Not a single , document of such transaction is produced. The defendant sets forth, f at in the year 1S21, John Vaughan made the recission in question: now it is distinctly in evidence by several witnesses, that in 1822 and down to August, Vaughan made no pretence of such an arrangement to rescind the original contract with M‘Kie: that he was in possession down to that period, not only of the lands but of M’Kie’s bond to make titles to it, and he actually placed that bond in the hands of á creditor as a security for debt and desired M‘Kie to make titles to the land. The evidence also establishes, that long subsequent to 1821, the al-lodged time of the rescission, M‘Kie did not pretend that such recission had taken place; but he said again and again to different persons, that there was a balance of *‡ 50*and interest due him, and that when that was paid, he would make titles. The evidence on these and other particulars is wholly at variance with the answer and must overcome it. There is some variance in the statements of the witnesses as to the different conversations of M'Kie, but this variance might arise from the different language of M‘Kie at different times, for he states in his answer, that when the complainant Richards, who had purchased the land at sheriff’s sale in Sept. 1822, called on him and required him to make titles, and offered him money said to be the balance due him, he evaded the demand and gave him no satisfaction as to the true state of facts. Upon the whole, I feel bound to say that there is no evidence of the recission of .the original contract between M‘Kie and Vaughan, and that the -instrument alleged to have been made in August, 1821, *by**190which Vaughan became tenant to M‘Kie, seems not to have been a real transaction, but a contrivance clumsily got up and contradicted by all the facts of the case, to defeat the complainants claim, by what is called in the bill a collusion with Vaughan. If however such recission had been made in *1822,*or even in 1821, it might not have affected this case, as will be presently discussed.

It was further argued that in any event, the complainant could not have relief in equity, because the debtor Vaughan had only an equitable interest in the land, which was not subject to the judgment and execution of his creditors, and therefore the sale by the sheriff to the complainant being illegal and void, this court would not interfere to perfect or protect a right thus acquired. In support of this doctrine, the counsel for the defendant cited and relied upon a very important case ill 3 *Aik,*352,'6, *Edgell,*vs. *Hayward*& *Daw,*hut in examining that case, it does not apply conclusively to the one we are considering. The question was, whether an execution at law could be made to operate directly of itself or by the aid of this court, on a pecuniary legacy, which was a mere *chose*in action; and lord chancellor Hardwick decided that the plaintiff at law could not, as a judgment creditor, come into this court for a satisfaction out of the legacy; for according to the general rules of this court, dioses in action are not liable to execution, because the creditor lias a remedy by seizing the person or by an outlawry; which last has been the chief ground upon which this court has proceeded in denying a specific remedy. Now it might be sufficient to say that this chief ground does not exist in this country, and therefore this court ought to be more ready to give the relief sought. It is however certainly true, that dioses in action are not liable to executions at law. This general rule, distinctly laid down by the lord chancellor in 3 *Aik.*357, is supported by the cases cited by the counsel from 12 *Johnson's New- York Law Reports,*220, 395; *§th John, Rep,*1G7; 1 *Crunch,*133; 4 *Johns.*96; 9 *Johns,*42.

The case before us however, is not exactly one of a chose in action. It is real estate, in the actual possession of the debtor, *191Iield tindei' a. bone from M‘Kicto make titles, and levied on a# ike property of the debtor* The counsel for the defendant,M‘Kie, contends that this property is not liable to the judgment and execution at law, and he cited and relied upon the case of Rogers, vs. *Perry and others,*IT *Johns.*351 ¿ (and see 1 *Johns, eh. cas. 52, 57)*where it was decided first by the court of chancery and then by the supreme court of errors, that a judgment and execution does not bind real estate held by a purchaser under a contract for the sale and conveyance thereof, even where the purchaser Cor his assignee) or vendee has paid part of the consideration and entered into the possession of the land, but neglected to pay a balance which still remained due. The chief justice Spencer, who delivered the. unanimous opinion of the court of appeals *(17 Johns. 353)*stated that though by the provisions of the statute of uses *(27 Hen.*8, *ch. 10,)*the cestui-que use is the real owner of the land, and his interest is bound by the judgment and may be sold under execution, yet the vendor or contractor to sell, who merely stipulated to make a convcj anee when the purchase money should be paid, is not seized to the use of the vendee or contractor to purchase, or in trust for him or his assignee, until the whole of the consideration money is paid. The reason given for this is, that if the *person contracting to sell*and *convey the*land should be considered as seized in the first instance in trust for the vendee or his assignee, then the purchaser at the sheriff’s sale, under judgment and execution against the purchaser or his assignee, would, by force of the statute, hold the land purchased on the execution freed and discharged from the incumbrance of the vendor’s claim for the balance of the purchase moncjR The payment of great part of the purchase money is not allowed to have any influence on the case, because there can be no divided use, partly in the vendor and partly in the vendee, in proportion to their interest in the estate; and the learned chief justice adds, that the statute embraces those cases only, where the entire estate out of which the use arises vests in the ces-tui que use, in consequence of his having paid the whole of the consideration money. He admits that if the assignee of *192the contract bad paid the whole of the consideration money, the statute would have applied, for then the vendor’s retaining the legal estate, would as regarded creditors have been fraudulent; but as the whole of the purchase money had not been paid in the case the court was considering, the vendee or his assignee had only an equity in the lands, which could not be touched by an execution. This is certainly a great authority, both on account of the learning and talents of the court which decided if, and of the force of reasoning on which the decision is founded. It is also in conformity with the case of *Barton*&s *Rushton,*decided by our own court much earlier than the decision in New-York, see 4th *Eq. Rep.*878. These decisions will be conclusive on the case I am now considering, unless there be something in the case which may distinguish it from those, and take it out of the principles so firmly settled by them.

Two circumstances which may be supposed to distinguish this case from that in *Johns. Rep,*requires tobe examined: the first is, that the purchaser Edge, or his assignee or sub-purchaser Vaughan, were in the actual possession of the land from July 1813, the date of the contract, to Sept. 1822, the time of the sale of the land by the sheriff, as the property of Vaughan; ,which possession gave a legal estate to Vaughan, and subjected it to judgments and executions against him. The evidence of that possession is very clear; the witnesses testify it and the answer admits it. The answer states that Edge, the contractor to purchase, occupied the land till he sold it to Vaughan, who then occupied it under that purchase until August, 1821, when he gave up the purchase and became the tenant of M‘Kie. The witnesses bring down the possession of the land by Vaughan from his purchase in 1815, till the sale in Sept. 1822 and since. The other facts of the case disprove the alleged recission and tenancy of Vaughan, and leave the question of the effect of the possession of Vaughan as the real one. Did this actual possession of the land for seven years by Vaughan.’ give him such a legal title as to subject it to the judgment and execution under which it was sold by the sheriff to Richards fhe_complainant.? The decision of this question in the affirmative, *193will certainly distinguish this case in one strong feature from those which have been strongly relied on; for in them, there is no pretence of such a .possession as gave a legal title. The possession of Vaughan for seven years is longer than is sufheient to establish a legal title against all the world, unless prevented by the disabilities recognized by the same law which gives effect to the possession, or unless there be something to prevent in the relation between the parties contending. The circumstances do not bring the case within the usual disabilities established by law, so as to prevent the statute from running and giving title by possession; but there does seem to be something in the relation of the parties here which prevents this possession from giving a legal title; for it is a settled doctrine that the possession is always consistent with the title or claim under which the party enters. Thus a tenant cannot set up his possession of many years under a tease into a legal title to the land. So here, Vaughan held under Edge and Edge entered on the land and held under his contract with M‘Kie, which gave him an equitable title, and which was to be converted into a legal title by a regular conveyance, only on the payment of the whole of the purchase money. That payment has never •been made, and the tender by Richards, the purchaser, after the sate, which was tolerably well made out by the evidence, cannot remedy the defect and give validity,to the sate, which was irregular and illegal when made, because there was no legal title in Edge, or Vaughan the sub-contractor. Such at least is the doctrine in the great and well considered case decided by ihe highest judicial authorities in New-York; and •though I may be permitted to entertain some doubts whether the ill effects would follow to the vendor which are stated in the New-York case, I should be reluctant to depart from authority on my own undecided judgment.

The other ground relied upon is, that the sale was regular and legal, because made with the consent of M‘Kie. The affirmative evidence on that point is, as we may remember, that M'Kie said to Greer, that if the balance due to him was paid, he would make titles, and he told the witness Dean that *‡*6ft *194•and interest was all that was due to him, and that he might in* form the sheriff he might sell the land as Vaughan’s property, and that he would make titles when the balance due was paid liim. The witness Shephard testified, that after the sale, M‘Kie acknowledged to Richards, in his presence, that lie'had directed the sheriff to sell the land and would make titles when the money was paid; but on Richards offering to pay M‘Kie the money really due to him, he set up first a pretence that a great deal more was due to him, to wit, *7*or 800 dollars, and after-wards that he must have his bond to Edge produced and given up to him, though he had at -that very time obtained the bond, from Vaughan by collusion. All this looks like a sufficient proof of the consent of M‘Kie to the sale of the land by the sheriff as Vaughan’s, and that he agreed to make titles to the purchaser on being paid the balance due to him, and it would *be*hard to shake a sale made under such circumstances to’ the prejudice of the purchaser; for however parol the directions were for the sale of the land, yet they were obligatory oft M‘Kie, on the ground that though a contract for the sale oí land must be in writing to satisfy the statute of frauds, yet the agent’s authority to sell need not be in writing, and the sheriff in this case must be considered as the agent ofM‘Kie, who had sent him word to sell. The authorities cited were *Rob. on*frauds, 111, 113; also9 Ves. jun. 2-51. Unfortunately, however, for the application of the whole of this argument, there is no doubt, that whatever difference of language ivas held at different times and to different persons by M‘Kie, (and of which there is abundant proof) he did at least give orders to forbid the sale. The complainant’s witness, Greer, testified to this, and he adds that Richards was present and heard the sale forbidden. Now if the validity of the sale be made to depend upon M‘Kie’s consent and direction to the sheriff) surely he could recall that consent and annul the authority given to the sheriff to sell, and this it is even admitted that he did. £ have thus come to the conclusion that this is a case in which I am not at liberty to give relief; and I acknowledge that I regret it. I have been so satisfied of impropriety in the conduct of defend*195ants, that I have long straggled against the conclusion to which I have been forced. It would be very satisfactory to me if my brethren could take a different view of this case. I should have been glad to have decreed a specific performance of the contract by the defendant, on the ground of the original contract; but it does not appear to me that complainant can claim under that contract. It was never transferred to him, and Vaughan who held it is a defendant resisting his claim. Complainant’s title is by a sale of the land under execution against Vaughan, who as we have found had not a legal estate subject to such a sale; hence, even the improper conduct of the defendant’s does not affect the case. Their collusion was for the purpose of preventing or defeating the sale of the land under the judgment and execution against Vaughan, but the sale was illegal and void of itself. It is therefore ordered and decreed that the bill of complainant be dismissed; but I cannot under the circumstances decree costs.

The complainant appealed on the ground that M‘Kie was bound by his promise, made both before and after the sale, to make title to the purchaser on the payment of the balance due, .and that it would be permiting him to practice a fraud to refuse to decree a conveyance.

In addition to the arguments and authorities relied on before the circuit court, the case of *Moore,*vs. *Millet,*decided in this court, was cited. In that case, the laud in possession of the vendee under an agreement to convey, was sold at sheriff’s sale, and upon a bill filed for that purpose, the vendor was decreed to make title to the purchaser. It was replied that in that case, the land was sold with the consent of the vendor, which consent was never retracted, and that the whole of the purchase monies had been paid before the sale. The case of *Higgins,*vs. *Coates and others,*decided at Newberry and af-terwards in this court, was also cited.

*Chancellor Desaussure*

*delivered the opinion of the court.*

On considering this case, we are of opinion that the decree is correct. It is in conformity with the decision in *Barton*& *Rushton,*4 *Eq. Rep.*and indeed with other decisions in this *196state and. New-York; which establish that an equitable interest-is not subject to sale under a judgment and execution at law. It was. supposed that this case resembled the case of *Moore,*vs. *Millet,*decided in Sumterville, and afterwards by the court of appeals. There is a general resemblance between. But there are essential differences. Those differences were correctly stated by the counsel for the respondent to be, that Vaughan, the holder of the equitable title, never consented to the sale of the land; as Rees didin the case of Moore, vs. Millet; and though M‘Kie, the contractor to sell, at- first consented verbally to the sale of the land under the judgment and execution, as the property of Vaughan, provided the balance due to him were paid, he recalled that consent before the sale, and forbade the sale whilst Richards, the purchaser was present; the whole of the purchase money was paid in Moore and Millet; not so in. M'KieV case: nor would the possession of Vaughan, from the date of the bond to make him titles on payment of the money, till the sale in 1822, give him a legal title. This possession was consistent with his equitable title, and not adverse to it, nor could it.be^ till he paid the purchase money. In *Higgins*and *Coates,*from Newberry, this court decided the same point, and all these decisions are supported by other cases. *See*3 *Atk.*342; 1 *Johns. C. C.*52 *and*16 *Johns. Law Reps.*351. It. is therefore ordered and agreed, that the decree *of*the circuit court be affirmed.

Davis and *W.*Thompson, for appellants.

*Earle*for respondents.

Chancellors *Gaillard, Waties, Thompson*and *James,*coik eurred.