said twenty-ninth of September, 1732, the houses, lands, regroes, and other hereditaments and real estates, situate or being within any of the said plantations belonging to any person indebted, shall be liable to and chargeable with all just debts, duties, and demands, of what nature or kind soever, owing by any such person to his majesty, or any of his subjects; and shall and may be assets for the satisfaction thereof, in like manner as real estates are, by the law of England, liable to the satisfaction of debts due by bond or other specialty; and shall be subject to the like remedies, proceedings, and process, in any court of law or equity of the said plantations respectively, for seizing, extending, selling, or disposing of any such houses, lands, negroes, and other hereditaments and real estates, towards the satisfaction of such debts, duties, and demands, in like manner as personal estates in any of the said plantations respectively are seized, extended, sold, or disposed of, for the satisfaction of debts:" Schley's Dig. 365.

It would seem that the alteration in the fieri facias, from goods and chattels, to goods and chattels, lands and tenements, owes its origin in this state to the statute, and that the authority for its introduction rests solely upon it, and not upon the judiciary act of 1799, and the subsequent acts amendatory thereof. It establishes another fact very conclusively, and that is, that the parliament of Great Britain subjected negroes, not by inference or implication, but by name, to levy and sale under execution for debt, in Georgia and the other colonies. We have seen what estates were liable in England, by the common law, to the satisfaction of debts by execution. The statute, 29 Charles II., c. 3, sec. 10, expressly adopted in this state, Prince, 916, in addition, makes trust estates liable. That section is in the following words: "It shall and may be lawful for every sheriff or other officer to whom any writ or precept is directed, at the suit of any person, of, for, and upon any judgment, statute, or recognizance, to do, make, and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents, and hereditaments, as any other person or persons be, in any manner or wise, seised or possessed in trust for him against whom execution is so sued, like as the sheriff or other officer might or ought to have done, if the said party against whom execution was sued, had been seised of such lands, etc., of such estate, as they be seised of in trust for him at the time of the said execution sued; which lands, etc., by force and virtue of such execution, shall accordingly be held and enjoyed, freed and

discharged from all incumbrances of such person or persons as shall be so seised or possessed in trust for the person against whom such execution shall be sued; and if any cestui que trust hereafter shall die, leaving a trust in fee simple to descend to his heir, then, and in every such case, such trust shall be deemed and taken, and is hereby declared to be, assets by descent; and the heir shall be liable to and chargeable with the obligation of his ancestors, for and by reason of such assets, as fully and amply as he might or ought to have been, if the estate in law had descended to him in possession, in like manner as the trust descended."

Thus it will be perceived, that this statute, as far as it goes, changed the common law, and made a trust, before cognizable in a court of equity only, the subject of a legal proceeding. Now, is the interest of Sims, which was seized and sold under the execution, against him and Underwood, at the instance of Smith and Kingley, for the use of George Smith, such an interest as could have been seized and extended in England under this statute? No case has been cited, and I can find none, which broadly and directly meets this inquiry. The principle which it involves, however, I am satisfied has been clearly settled. In Jackson ex dem. Livingston v. Bateman, 2 Wend. 570, one S. D. Mumford, being seised of the premises, entered into a contract to convey unto Jonathan Case, a house and lot in the village of Rochester, upon the payment of one hundred and twenty-five dollars, by annual installments, the last falling due the twenty-second of March, 1825. It was in proof that Case paid all installments, except the last, which was paid by James Gregory. It did not appear on whose account Gregory made the payment; it was supposed, however, to be on account of Case. Jonathan Case entered into the possession of the lot under the article of agreement, built a house, and occupied it until about two years before the trial. Livingston brought ejectment for the premises, under a sheriff's deed, executed to him, the first of February, 1827, by virtue of a sale under an execution on a judgment in favor of W. Pitkin and J. K. Livingston, against Jonathan Case, for five hundred and ninety-five dollars, docketed the thirty-first of May, 1825. The sale took place the eighth of October, 1825, when the premises in question were struck off for four hundred and fifty dollars to Livingston, the plaintiff in ejectment. The defendant showed a deed to the lot from Mumford, the original owner, to Samuel S. Case, dated the twenty-eighth of September, 1825; consideration expressed one

hundred and forty dollars. A lease from Samuel S. Case to W. Tappan, jun., bearing date the twenty-eighth of March, 1826, for one year, at the rent of seventy-five dollars; an assignment to Bateman, the defendant in ejectment, in 1826, and a renewal of the lease, the twenty-eighth of March, 1827, at a rent of eighty dollars. The defendant further showed a lease from Samuel S. Case to Jonathan Case, of the premises in question, bearing date the seventh of June, 1824, for one year, at the weekly rent of one dollar, and proved that Jonathan Case remained in possession of the premises until the date of the lease to Tappan, who entered and continued in possession until the transfer to the defendant, who had been in ever since. It was further proved, that at the date of the lease from Samuel S. Case to Jonathan Case, an arrangement was made, by which the article for the sale of the lot, obtained from Mumford, was transferred to Samuel S. Case.

The circuit judge, upon this statement of facts, decided that Jonathan Case had not a resulting trust in the premises. And the same having been conveyed by Mumford to Samuel S. Case, the legal title was in him, and a court of law could not protect or enforce the equities set up by the lessor of the plaintiff; and, under this direction, the jury found a verdict for the defendant, which was moved to be set aside. The court granted a new trial. And Justice Marcy, in delivering the opinion, after recapitulating the facts, says: "Mumford having received the stipulated consideration for the sale of the premises, but not having executed a conveyance, he held the premises as trustee for the purchaser, from the date of the payment of the last installment. Who was the cestui que trust? It was Jonathan Case; and the judgment on which the property was sold, having been recovered during this time, became a lien upon it, by virtue of the fourth section of the statute of uses, 1 R. L. 74 (which is an exact copy of 29 Charles II., c. 3, sec. 10), as effectually as if he had been seised. It is, however, clearly settled, that the statute only applies to cases where the entire estate out of which the use arises vests in the cestui que use, in consequence of his having paid the whole consideration money. It is a question then, and an all-important one in this case, whether the whole consideration for the premises was paid by Jonathan Case. . And the evidence should have been submitted to the jury, for them to determine whether it did or did not make out the fact of the payment of the whole consideration money by Jonathan Case. It also appears by the case, that the judge decided that

>

the plaintiff could not recover if Jonathan Case had a trust resulting from having paid all the consideration money for the premises. I apprehend that this opinion is too broad to be sustained by this court. It is not only opposed to the cases cited, but militates against the plain provisions of the statute. If the proof in this case made out that the whole beneficial interest in the premises was in Jonathan Case, and that Samuel S. Case was a trustee, with a mere naked or formal legal title, the plaintiff should not be sent from a court of law to a court of equity for the recovery of his rights."

The cases cited in this decision were Foote v. Colvin, 3 Johns. 216 [3 Am. Dec. 478], and Bogart v. Perry, 17 Id. 351 [8 Am. Dec. 411]. In the first of which it was held, that if A. buys land with the money of B., and takes a conveyance to himself, he is a trustee for B.; and that the land might be seized and sold on an execution under a judgment against B., the cestui que trust. And Spencer, J., says: "In the present case the evidence offered and overruled would, we are to presume at present, have established the fact that the farm was purchased with James Litchfield's money, and that Josiah C. Foote was the mere pipe of conveyance. The proof would consequently have shown an estate in James Litchfield, liable to be sold on execution under the tenth section of the statute of frauds. Indeed, without the aid of that statute, I consider James Litchfield, if he advanced the purchase money, as having an interest liable to be sold on execution."

In the case in 17 Johnson the same court ruled, that the tenth section of 29 Charles, rendering lands liable against the cestui que use or trust, applies only to those trusts where the cestui que use or cestui que trust has the whole beneficial interest in the land, and the trustee the mere naked or formal legal title. And that it is not applicable to a case where one person enters into a contract for the sale and conveyance of land to another, and the vendee pays part of the consideration, and enters into possession of the land, but neglects to pay the residue of the purchase money; for the vendor is not seised to the use of the vendee until the whole consideration is paid, and until then the vendee has a mere equitable interest, on which a judgment at law is not a lien, nor can it be sold under an execution. Spencer, now chief justice, remarks: "It is true, that since the statute of 27 Henry VIII., c. 10, the cestui que use is the real owner of the estate, and his interest is bound by a judgment, and may be sold on execution: and our statute concerning uses,

1 N. R. L. 72; 1 R. S. 727, sec. 47, contains the provisions of the British statutes of 19 Henry VII., c. 15; 27 Hen. VIII, c. 10; and 29 Charles II., c. 3, sec. 10. But it can not admit of a doubt, that the statute embraces those cases only, where the entire estate, out of which the use arises, vests in the cestui que use, in consequence of his having paid the whole consideration money; and it intended to subject to execution the real estate or hereditaments of a person having the entire interest therein, but which was nominally and formally vested in another person; and I have met with no case or dictum, countenancing the doctrine of a divided use, vested in the vendor and vendee." And this case Chancellor Desaussure, in delivering the opinion of the court of appeals of South Carolina, in Richards v. McKie and Vaughan, Harp. Eq. 184, Columbia, December, 1824, calls “a great authority, both on account of the learning and talents of the court which decided it, and of the force of reasoning on which the decision is founded."

When the case of Bogart v. Perry, 1 Johns. Ch. 52, was first heard, in June, 1814, and which was among the earliest chancery decisions of Chancellor Kent, he having been appointed the February preceding, he said: "The provision in our statute of uses, rendering lands liable to execution against the cestui que trust, was taken from a branch of the English statute of frauds, and it relates only to those covinous trusts, where the cestui que use has the whole real beneficial interest. If the contract had been fulfilled, so as that Smith (the vendee) had been entitled to a deed, when the judgment was obtained and the sale made to Perry, the statute might have applied, and there would have been reason and fitness in the application." This doctrine underwent a searching and thorough examination in the case of Lynch et al., Appellants, v. The Utica Insurance Company, Respondents, 18 Wend. 236. And Chief Justice Nelson, in pronouncing the judgment, after referring to the fact that the New York statute was taken from the English statutes, said, he considered it settled that in the case of a clear and simple trust for the benefit of the debtor, the judgment has a lien thereon, and that it is such an interest as could be sold on execution within the statute." Jackson ex dem. Ten Eyck v. Walker, 4 Wend. 462; and Jackson ex dem. Cary v. Parker, 9 Cow. 73; Richards v. McKie, Harp. Eq. 184; Hopkins v. Stump, 2 Har. & J. 301, are all cases in support of the same doctrine; i. e., that lands are liable on an execution at law against a cestui que trust, who has the whole beneficial interest and the trustee only a