#### *Samuel Dillard and John T. Kirby*ads. *Solomon Crocker.*

1. S. C. gave to his daughter, P. M. an undivided moiety of a tract of land. Afterwards, in Dec. 1833, her interest in said land was sold by tho sheriff, under an execution against her • and her husband. G. M. a grandson of S. C. bid it off, and transferred his bid to S. C. who paid the purchase money; the sheriff, however, declined to malee him a title without a written order from G. M. who never applied for a title. After the death of G. M., J. M. a brother of the former, insisted on having the title to G. M., which the sheriff, having some time previously made out in the name of G. M. delivered to him. S. C., after the sale by the sheriff, was in exclusive possession of the premises, against whom, in March 1836, J. M. instituted a suit, but whether for the land itself, or for the rents and profits, did not appear, the writ not being produced.

2. The matter was referred to arbitration on the 22nd of March, 1836, both parties being sworn to abide by the decision ; and in May following, the arbitrators made an award under seal, by which they awarded the land in dispute to S. C. and discharged him from the payment of any rents therefor. The suit of J. M. was not prosecuted further ; and g. C’s. possession of the land remained uninterrupted until the 31st of May, 1838, he having in the mean time, since the sheriff’s sale, rented the land to several persons, amongst whom, at one time, was S. D., one of the defendants. On the day last mentioned, S. C. was served with a summonsfrom the Ordinary, onthe petition, as was alleged, of A. M., H. M. and J. M., brothers of G. M. dec’d. and, with their mother, his heirs at law, praying a division of the premises. S. C. resisted the application, on the ground, that under the circumstances, he was the exclusive owner of the land. The Ordinary doubted his jurisdiction, but ordered the land to be sold. In Feb. 1839, it was sold to S. D. who gave bond and security ; the bond was subsequently paid by the security, and the money remained in the hands of the Ordinary. The purchaser, S. D. brought an action of trespass to try title against S. G. and obtained a verdict with forty dollars damages. The land was purchased in June, 1840, by J. T. K. the other defendant, under an execution against S. D. and on the 29 June, 1841, he not having paid the purchase money, gave his note to the sheriff This petition was filed in Oct. 1840, but no injunction was granted. In June, 1841, the defendant Kirby caused a writ of *haberi facias possessionem cum fi. fa.*to be sued in the case of S. D. against S. C. under which the tenant of the latter was dispossessed, J. T. K. put in possession, and the damages collected and paid over to the plaintiff’s attorney. S. C. charged in his petition, that the heirs of S. M. dec’d. were not parties to the proceedings before the Ordinary, never having directed or sanctioned them. Tho Ordinary directed the land to be sold upon S. D’s. testimony. It was *21charged in the petition, and against S. D. taken *pro confesso,*that at the time ofthesaleby order of the Ordinary, he had full notice of the petitioner’s equitable claim. The Ordinary testified, that none of the petitioners for a partition applied to him — that the application was made by attorney. None of the parties had applied for the proceeds of sale in the Ordinary’s hands. The counsel who had signed the petition to the Ordinary, stated on examination, that he did not recollect to have had any authority from *the*applicants.

3. It was *held,*by the Court, that so far as the rights of the petitioner were involved, the decree of the Ordinary was to be regarded as null and void. The Act of 1824, (6 Stat. at Large, 248,) authorizing the Ordinary to make partition of real estate, where the value does not exceed one thousand dollars, was only intended to apply where no dispute exists as to the right of the land. If an adverse claim be interposed by the party in possession, the right should be adjudicated in the ordinary tribunals.

4. *Prima, facie,*the signature of counsel to a proceeding, is regarded as sufficient evidence of their authority: where a decree has been pronounced and a sale made under it, the Court would scarcely permit any other than the party himself to question the authority, to the possible prejudice of a *Iona fide*purchaser. But *held,*that S. D. was not entitled to this protection.

5. To have rebutted the petitioner’s equity, the defendants must have shewn that they were purchasers for a valuable consideration, without notice of the petitioner’s title; Sugden on Vendors, 303. The money must have been actually paid, and not merely a security given for the payment, before notice of the title. *Snelgrove*vs. *Snelgrove,*4 Dess. Eq. Rep. 274 ; 2 Atk. 241; 3 Id. 304, 814. Nor will the defence be allowed, where the purchaser might, by due diligence, have ascertained the true state of the title. It is enough, if he has been put on the inquiry. *G. and Jackson*vs. *Rowe,*2 Sim. and Stuart, 472.

6. The defendants not having brought their case within these rules, it was *held,*that the petitioner’s title must prevail.

7. In a controversy between third persons, on a collateral issue, the authority to act for the heirs of S. M. dec’d. could not have been questioned.

This case came up on an appeal from a decree of Chancellor Dunkin, before whom it was heard, at Spartanburgh, June Term, 1842. The facts and the evidence will appear from the decree.

Dunkin, Ch. The petitioner was the owner of a tract of land, containing about two hundred acres, situated on the waters of the Pacolet, under a grant from the State, *22dated 4th Nov’r. 1816. He states in his petition that he had given an undivided moiety of his land to his daughter, Patsey Robertson, at that time Patsey McBee.

In December, 1833, the interest of Patsey Robertson in this land was sold by the sheriff of Spartanburgh district, under an execution against Patsey Robertson and her husband. The testimoney of the sheriff (Poole,) is, that the land was bid off by Greenberry McBee, (the grandson of the petitioner,) that he did not comply with the terms, and witness was about to re-sell — that Greenberry, however, came and. told witness that he had transferred his bid to the petitioner, who would call and pay the money, and the witness was then to make title to the petitioner — that the petitioner called and paid the purchase money, and wished his title — that the witness declined to malee the title without a written order from Greenberry McBee, as in case of death there might be difficulty. Greenberry McBee never applied to him for a title, nor did he ever see him afterwards.

After the death of Greenberry McBee, witness was applied to by John McBee, a brother of Greenberry, who insisted on having the title to Greenberry, and threatened to sue witness if he did not deliver it. Witness had sometime previously made out a conveyance in Greenberry Mc-Bee’s name, which he kept by him, but on this demand of John McBee, he delivered the deed to him.

It seems that after the sale in December, 1833, the petitioner was in exclusive possession of the premises. In March, 1836, John McBee instituted a suit against him in the Court of Common Pleas; whether the suit was for the land itself, or for the rents and profits, is not very clear, as the writ was not produced.

The matter was referred to arbitration, both parties being sworn, on the 22nd March, 1836, to abide by the decision. On the 22d May, 1836, the arbitrators made an award under seal, in which they state that they are satisfied the contract with Greenberry McBee. was in good faith ; that the petitioner paid the purchase money, and was entitled to the land; they therefore, “ award the land in dispute to Solomon Crocker, and discharge him from the payment of any rents therefor.” . The suit of John McBee was no further prosecuted.

*23The possession of the petitioner then remained uninterrupted until 31st of May, 1838. In the meantime he had, since the sale of the sheriff, rented the land to several persons ; at one time his tenant was Samuel Dillard, one of the defendants.

On the day last named, the petitioner was served with a summons from the Ordinary, granted, as was alleged, on the petition of Asa McBee, Henry McBee and John McBee, as brothers of Greenberry McBee, deceased, and, with their mother, Patsey Robertson, heirs at law of said Greenberry, praying a division of the premises in question, which are alleged to be in possession of the petitioner Crocker, who had purchased their mother’s right.

The petitioner resisted the application, on the ground that he was the exclusive owner of the land, under the circumstances as hereinbefore detailed. The Ordinary, doubting his jurisdiction, and intimating his opinion that the parties ought to have their rights elsewhere adjusted, proceeded nevertheless to determine the case against the petitioner (Crocker,) on the ground (principally,) that the right could not be established by parol. The land was ordered to *be sold on*a credit *of*twelve months. In Feb. 1839, it was sold by the sheriff for fifty-one dollars, to Samuel Dillard, who gave bond, with Simpson Bobo, Esq. as security. The bond was subsequently paid by Mr. Bobo, and the money remains in the hands of the Ordinary.

An action of trespass to try title was then instituted by Dillard against the petitioner, and a verdict rendered for the plaintiff with forty dollars damages. The petitioner sought to restrain the enforcement of the execution issued on this writ.

It appeared that the land was, in the meantime, sold under an execution against Dillard, and purchased by the other defendant, John T. Kirby, for fifty one dollars. Kirby purchased in June, 1840, and on the 29th June, 1841, he gave to the sheriff his note for the purchase money, with interest from June, 1840, which is yet unpaid.

This petition was filed 5th Oct. 1840; but no injunction was granted. In June, 1841, the defendant Kirby caused a writ of *haberi facias possessionem,, cum fi. fa.*to be sued *24out in the case of *Dillard*vs. Crocker, under which the petitioner’s tenant was dispossessed, and the defendant Kirby put in possession — the damages, (forty dollars) were collected and paid over to Mr. Bobo, the plaintiff’s attorney.

All the testimony, verbal and written, which was submitted at the hearing, accompanies this decree. It is difficult to perceive on what principle the petitioner could have been ejected at the suit of Dillard, if there be no mis-ápprehension in the statement as to the original rights of the parties. But it may be, that the Court should infer that the petitioner gave the whole tract, and not an undivided moiety, to his daughter, Patsey Robertson, (or Mc-Bee,) and that the whole was sold by the sheriff in Dec. 1833, as her property.

It is necessary then to inquire what interest, if any, the petitioner derived under the sale of Dec. 1833. It is insisted, that as the purchase money was paid by the petitioner, he had. a resulting trust in the premises, which this Court would enforce.

It seems quite clear from all the cases, as Mr. Sugden says, without a single exception, that where the purchase money is paid by one man, and a conveyance is taken in the name of another, a trust results to the man who advances the purchase money. And this trust may be established by parol evidence, being expressly excepted out of the Statute of Frauds; 2 Sugden on Vendors, 135. It was formerly questioned whether such testimony was admissible, after the death of the nominal purchaser; but in *Dench*vs. *Dench,*lOVes. 511, Sir William Grant says, that whatever doubts might have been formerly entertained the rule was now settled — all, he said, depended upon the proof of the fact. He admitted the testimony after the death of the party, although he ultimately regarded it as too uncertain to establish the trust.

The evidence as to the payment of the purchase money by the petitioner in this case was not questioned. If the conveyance had been afterwards executed by the sheriff to Greenberry McBee, the Court would have declared him a *25trustee for the petitioner, or would have compelled him to execute a conveyance to the petitioner. But the sale took place in Dec. 1833. The petitioner remained in exclusive possession. Greenberry McBee died in Feb. 1835, never having received a conveyance or interposed any claim to the land. As to Greenberry McBee and his heirs, the equitable title of the petitioner could not well be questioned.

But it is urged, that the petitioner is precluded by the decision of a competent tribunal on this very point; and that the defendant Dillard was a *bona fids*purchaser at a judicial sale, and should be protected. This renders it ne^ cessary to enquire into the proceedings before the Ordinary.

By the Act of 1824, passed to remedy the expensive proceedings in a Court of Equity, the Ordinary is author^ ized to make partition of real estate, where the value does not exceed one thousand dollars. It is quite manifest that this Act was only intended to apply where no dispute existed as to the right of the land. If an adverse claim was interposed by the party in possession, the right should be adjudicated in the ordinary tribunals. It may be well doubted whether a differeut construction would not render the Act a violation of the constitution.

It is to be regretted, that' in this case the Ordinary did not act in conformity with his own inclination, and dismiss the case, leaving the parties to their appropriate remedy. But it is insisted, on the part of the petitioner, and is sp charged in his petition, filed in October,' 1840, that the heirs at law of Greenberry McBee were no parties to these proceedings — that they never directed or sanctioned the application to the Ordinary, and that their names were used without their authority.

*Prima*facie, the signature of counsel to a proceeding is regarded as sufficient evidence of their authority. Where a decree has been pronounced and a sale made under it, the Court would scarcely permit any other than the party himself to question the authority, to the possible prejudice of a *bona ficle*purchaser. The Court is disposed to think, however, that Dillard is not entitled to this protection. He had been, if he was not then, the tenant of the petitioner. It *26was upon his testimony alone as to the value of the land, that the Ordinary took cognizance of the cause, and it was upon his testimony that he ordered a sale of the premises. It is charged in the petition, which is taken *pro confesso*against Dillard, that at the time of the sale under the order of the Ordinary, he, Dillard, had full notice of the petitioner’s equitable claim. He bid off the land at $51, and the money (which was paid by his security,) is still in the hands of the Ordinary. If the proceedings before the Ordinary were without authority, the Court is of opinion that Dillard must have been aware of the defect, and that •this is substantially to be inferred from the state of the pleadings as well as from the evidence.

Then what are the circumstances on which the petitioner relies, as he urges, to cast the *onus*on the defendant of producing the authority of the heirs of Greenberry Mc-Bee, for the proceedings before the Ordinary. In October, 1840, the petition was filed, making the charge to this effect.

The Ordinary testified that “none of the McBees applied to, him — that the application was made by attorney.” The petition is filed in the name of Asa, Henry and John McBee. More than two years previously, John McBee had, under oath, submitted his dispute with the petitioner to arbitrators, who had awarded that the land belonged to the petitioner. All these McBees (as the Court understood,) had removed, and were residing in the West. They had never applied for the proceeds of sale in the Ordinary’s hands. The petition to the Ordinary was signed by Henry Bobo, for the petitioners. Mr. Henry was examined by the petitioner — he said that he did not recollect to have had any authority from the McBees' — -that he was never employed after the arbitration — that suit was for the rents and profits — witness never appeared before the Ordinary.

If the validity of the proceedings before the Ordinary depended on the proof of authority from the heirs of Green-berry McBee, deceased, to institute those proceedings, the Court would regard this negative testimony as sufficiently strong to repel, the *prima facie*presumption, and put the party on further proof of authority. But so far as the rights of the petitioner are involved, the Court regards the decree *27of the Ordinary as null and void. It is possible, that if the heirs of McBee had been properly applicants, they might be estopped — but that would not effect the petitioner.

Neither of the defendants, however, could protect themselves, even if they held under a conveyrnce from the heirs of Greenberry McBee, or from their ancestor himself. In order to rebut the petitioner’s equity, the defendants must shew that they were purchasers for valuable consideration, without notice of the petitioner’s title; Sugden, 303. The money must have been actually paid, and not merely a security, given for the payment, before notice of the title; *Snelgrove*vs. Snelgrove, 4 Dess. Rep. 274; 2 Atk. 241; 3 lb. 304, 814. Nor will the defence be allowed, where the purchaser might, by due diligence, have ascertained the real state of the title. It is enough, if he has’been put on the enquiry. *G. & Jackson*vs. *Boive,*2 Simmons *&*Stuart. 472.

It is hardly necessary to recapitulate the testimony in order to shew that the defendants have not brought their case within these rules.

It is ordered and decreed, that the defendant, John T. ICirby, do within thirty days after notice of this decree, deliver up unto the petitioner, the premises of which the petitioner was dispossessed, under the execution issued in the case of *Dillard*vs. *Orocker,*and that he account for the rents and profits of the same since he took possession. It is further ordered and decreed, that the damages and costs paid by the petitioner, in the last mentioned case at law, be refunded to him; find that the defendant Dillard pay all the costs of the proceedings in this Court, except the costs in the answer of his co-defendant Kirby, which are to be paid by himself — and it is finally ordered, that in the event of the insufficiency of Dillard’s estate to satisfy the costs in this Court, then that all these costs, except. those on the answer of Dillard, be paid by the defendant, John T. Kirby.

The defendants appealed, and moved the Court of Appeals to reverse the decree, upon tbe grounds,

1st. Because the decree of the Court of Ordinary was final and conclusive as between all the parties to the record, in the case adjudicated by him.

*282d. Because Dillard was a *bona fide*purchaser of the land at the sheriff’s sale, without notice, express or implied, of any resulting trust in the complainant.

3d. Because the adjudication in the case of *Dillard*vs. Crocker, was conclusive of the title’s being in Dillard.

4th. Because a resulting trust is a legal estate, and might have been set up at law, between Dillard and complainant.

5th. Because Kirby was a *boua fide*purchaser of the land at sheriff’s sale, for a valuable consideration, and as against him, defendant could not set up his resulting trust in equity.

6th. Because the decree is ambiguous, as to who shall pay the recovery and costs in the case at law of *Dillard*vs. Kirby, leaving it doubtful, in the opinion of the counsel, whether Kirby is oris not liable to execution for the same.

7th. Because neither Kirby nor Dillard can properly be made liable for the costs and money in *Dillard*vs. *Crocker.*

8th. Because the legal estate was in Greenberry McBee, in fact, and after his death, parol proof was inadmissible to affect the rights of Dillard and his assigns.

9th. Because the award was improperly considered, the submission being entirely on the demand for rents and profits.

10th. Because the decree is contrary to law and equity.

Henry *&*Bobo, pro appellants.

H. H. Thomson, contra.

*Caria, per*Dunkín, Ch.

This Court is satisfied with the conclusions of the Circuit Chancellor. But, lest some misapprehension might arise from a general affirmance of the decree, it is deemed proper to state, as the unanimous opinion of this Court, that the authority to act for the heirs of Greenberry McBee, in the proceedings before the Ordinary, could not be properly questioned, on a collateral issue, in a controversy between third persons. With this explanation, the decree of the Circuit Court is affirmed, and the appeal dismissed.

D. Johnson, and J. Johnston, Chancellors, concurred.