*Laurens.*

Heard by Chancellor Gaillard.

vcasb *xxsxs.*

#### Hugh O'Neal, *vs.*Samuel Cothran, Samuel Speers and David Waters.

A purchaser at sheriff’s sale under a judgment and execution, or property which really belonged to another, other than the debtor, (who had conveyed away his rights before the judgment,) shall not be protected as a purchaser for valuable consideration, when he bad notice of the true state of the title. Rut the sale shall be declared void, and the title from the sheriff ordered tobe given .up to be cancelled.

The court will not direct an issue in such a case. Rents to bet accounted for.

The application to the court in ibis caso is, to render of no effect the sale of a tract of land, purchased by thculefendants on the eighth of December 3 810, as the property of Moses Lindsey, to satisfy a judgment obtained against him, at the suit of Evans & Co. entered up on tlie 7Th of May 1808,

The complainant all edges that the land was not Lind* Sey’s/but his the complainants, and that the defendants were informed of this fact before the sale by the sheriff. The complainant states in his bill, that lie purchased the land on or about the 1st of January 1808, from Lindsey* and the defendants in their answer admit that they were informed of it. They say, that they were informed that the complainant did purchase the land of Moses Lindsey, as stated in the bill, at the lime therein mentioned.”

Lindsey it appears, com eyed the land to the complainant O’Neal, for $675, by deed, dated the 27th of April, 1808. There was a mortgage on the land from the Conners, the former proprietors of it, to Inman, to secure $350 duo to him. OvNeal was to pay this debt, ami credit was to he given to him for so much out of the *$675.*He settled with Barret Inman’s agent by giving bis note for the amount of the debt due to Inman, and Barret gave him up the mortgage, with a receipt on it in full, dated the 31st of December, 1808. To assert that +hc defendants wore purchasers at sheriff’s sale without *553matice, would be to contradict tbeir own admission and Jones, a witness, says, that notice of O'Neal’s purchase Of the land was communicated to them by him, before the land was levied on; and the mortgage to Inman was oil record in the proper office. Lindsey’s conveyance to ONeal gave him a legal title to the land on the 27th of April 1808, and the judgment against Lindsey was-not entered up until the 7th of May following: Besides the mortgage given to Inman by the Conners in 1805, was a subsisting lien on the land : no satisfaction was entered on it in the office: the receipt on it does not appear to have been even known by the defendants : — The complainant states that he bought it up with a view to strengthen his title in this way. The mortgage must therefore bé considered as a subsisting lien on the land, whether owned by Inman or the complainant.

FEB'Y. 1815

It is strongly insisted that I should send this matter to a jury. The complainant had a right to apply to this court for a discovery, from the defendants, whether' they knew of his purchase from Lindsey, before they made their purchase at sheriff’s sale, and to set up his mortgage. I see no good purpose that can be' answered by directing an issue at law. Both complainant and defendants derive their title from Lindsey. In a court of laW the plaintifflabors under disadvantages: He must recover there by the strength of his own title, and not by th© weakness of his adversary’s. The defendants onght nob to be allowed to take advantage of their own wrong.— They purchased the land as the property of One map# knowing it to be the property of another, and to induce the sheriff to sell it, Fernandis says, gave him a bond ef indemnity. The complainant at the time of the Sale Was a lunatic, he could not protect his own rights. One of his committee was dissatisfied with what had been done, and Mr. Jones says, always declared he intended to en» deavor to get the land back.

The prayer of the bill is, that the defendants be compelled to convey the land to the complainant, who by the finding of the jury has lately been declared sane, f shall not order this, lest by doing so, it might affect th© *554rights of persons not parties to this suit; but declare thje sale made by the Sheris' to the defendants void.

And it is ordered and decreed, that they do deliver their title from the sheriff for this land to the commissioner to be cancelled, and that they do pay the. costs of this suit. The defendants must account to the commie* sioner for the rents and profits of the land.

Theodore Gaiddard.

From this decree an appeal was made, and the following statement was made, and grounds- of appeal stated:

The bill in this suit, was filed for the purpose of avoiding the right of the defendants and confirming that of the complainant to a tract of land.

The complainant claimed under a deed from Moses Lindsey to himself, dated 21th of April, 1808, and which was=registered 5th September 1809. He also claimed under a mortgage from Conner to Inman, dated 18th of Dec.. 1805,. and which was registered the same day. It appeared that on the 31st of December 1808, Barret, who was alledged to be an agent of Inman, delivered the mortgage to the complainant, and gave a receipt thereon for full satisfaction. It likewise appeared that the complainant gave no money or adequate consideration for the deed or mortgage, and that Lindsey was in bad circumstances, and not in the habit of paying his debts.

The defendants Cothran and Speers claimed the land under a sheriff’s deed dated 8th December 1810, founded.on the following facts, to wit: in March 1808, the defendant Waters, and the firm of Evans and Co. (pf which the defendant Speers was a co-partner,) obtained separate judgments against the defendant Lindsey,, which were signed and executions lodged the 7th of May following. On the 8th September 1809, under those executions levies were made on the land, which in November following was sold for its full value at that time. The defendants Waters and Speers became purchasers. Waters sold his interest in the purchase to *555Cothran, and the sheriff executed titles to Speeds and Cothran.

His honor the presiding judge, decreed that the sheriff’s deed to the defendants he cancelled, &c.

The defendants, therefore, move the Court of Appeals to reverse the decree of his honor, or to make such order and decree as to the Court of Appeals shall seem fit, on the grounds,

First, — That the alledged right of 'the complainant being a matter purely legal, was not a proper subject for the jurisdiction of a court of equity.

Second, — That the claims of the defendant should be preferred to those of the complainant.

Third, — It was incumbent on the complainant to prove an adequate consideration.

Fourth, — The conveyance by Lindsey to the complainant will authorize the conclusion of fraud against the right of creditors.

Fifth, — -That the decree is not warranted by the bill, answer and evidence.

Crenshaw defendant’s solicitor.

The appeal was argued before the chancellors Be-saussure, Gaillard and James, who afterwards unanimously aifinned the decree of the Circuit Court.