So

use raised is, such a use as would be executed by the statute, there being a seisin to serve it upon a proper conveyance. since the statute and the introduction of trusts, the same difference prevails as to them; they are either raised, or covenanted to be raised, yet still both are executory, for a trust executed is a legal estate. Therefore, in their very nature, though raised, trusts are executory; and so says Lord Hardwicke, in Bagshaw v. Spencer, 2 Atk. 577. A trust raised, then, resembles an use raised before the statute, that is, upon a conveyance with a seisin in the trustee to serve it. A trust articled to be raised, though still a trust, and one which chancery will execute, is without a conveyance and seisin to support it, as money articled or devised to be laid out in land, which, when purchased, should be settled to certain and upon particular trusts; now until the lands are purchased neither the uses nor trusts can be raised, but still they are trusts executory, and the cestui que trust shall compel the trustee to purchase the lands: Saund. on Uses, 122.

Guided by these authorities, I can not say that any other trust is extendible under the statute 29 Chas. II., c. 3, sec. 10, but a trust that is raised by or upon a proper conveyance; that a trust articled or covenanted to be raised is not such a trust, for it depends upon a further act to be done by the party. It wants that seisin which the statute requires, and which until it is had by a proper conveyance, rests only in contract or on covenant.

Equally out of the statute must be all those trusts, that are so denominated on account of the remedy to be afforded to the party injured; and indeed to me it would seem a most extraordinary position to hold that a constructive trust should be within that statute, such an one as may or may not, according to circumstances, be established by a court of equity. Trusts of this nature depend upon controverted facts, and according to the prevalence of these facts on the one side or the other, the decree is molded. The present is one of that kind. The bond from Garrison to Harder exhibits a contract or covenant to convey, at some future time, a certain specified tract of land; upon examination, however, this contract may be molded differently, or it may be entirely cut down by fraud, or it may be shown to be satisfied, or it may be released. These all depend upon the pleadings and evidence, and according to their establishment, or the reverse, is Garrison to be declared a trustee by a court of equity, and the contract or trust to be executed by it.

Such a possible, eventual trust as this could never be the

trust meant by the statute. The subject of an execution ought to be certain, that men may know what it is they buy, and what they ought to give for it, that the judgment may fix the fair marketable equivalent, and not blind chance govern the sale, which unquestionably must be the case if such interests or contracts as the present were salable under execution. Sales of interests of this nature would be productive of both public and private injury; the encouragement given by them to this species of hazard would be impolitic, which, if successful for the bidder, at best would have an unfortunate effect upon his morals, and also upon those of others, followed up, as it would be, by shifts in evasion of the sale, by lawsuits and perjury. Upon the debtor it would be ruinous. An interest worth one thousand dollars or ten thousand dollars might be, and from the uncertainty in which it is involved probably would be sold for a very trifling sum, notwithstanding every honest disclosure of the value and circumstances by such debtor to enhance the value for the benefit of himself and his creditors. His creditors would lose their debts, as by this means a fund sufficient to pay all the debts is swept away from them without value and without redress.

How very different from this is a trust raised by a conveyance; it is as certain as to its nature and existence as a legal estate, and its value can easily be ascertained. It depends not upon controverted facts and the testimony of witnesses, for cither the one or the other; the records of the country, which are accessible to all men, give it notoriety, and the evidence by which it is created (the conveyance) imposes on it the stamp of value, not to be obliterated by the interested doubts and surmises of adventurers.

It only remains for me to say that, not knowing any decision or practice in North Carolina, or this state, authorizing a greater latitude to the statute of Charles than that here mentioned, to wit, a direct trust upon a conveyance and a resulting trust upon a conveyance, or as authorizing any other equitable interest to be subjected to execution by virtue of the expression "real estates," used in the 5th Geo. II., in the act of 1784, c. 11, and in the act of 1786, c. 14, I consider the matter settled and at rest; the demurrer must therefore be sustained and the bill dismissed.

Bill dismissed.

The principal case is cited in Shields v. Mitchell, 10 Yerg. 8; and Lune v Marshall, 1 Heisk. 33, in support of the proposition that an execution at the

common law operated only on legal rights or titles, and not on equitable interests. So an equitable interest in chattels is held not liable to an execution at law, in Childs v. Derrick, 1 Yerg. 79; Wilson v. Carver, 4 Hayw. 90. Neither is an equity of redemption: Hunt v. Reeves, 5 Id. 49. A resulting trust, however, although an equitable title, is the subject of levy and sale: Smitheal v. Gray, 1 Humph. 496; and Butler v. Rutledge, 2 Coldw. 12, both citing principal case. See Combs v. Young, 4 Yerg. 229. In McNairy v. Eastland, 10 Id. 309, it was held that a creditor by judgment may subject the equitable interest of the judgment debtor in real estate, to the satisfaction of the judgment, without first having an execution issued thereon.

EXECUTION-PROPERTY SUBJECT TO.-Equitable interests generally are not liable to: Atkins v. Sawyer, 11 Am. Dec. 188; Roads v. Symmes, 13 Id. 621; Blight's Heirs v. Banks, 17 Id. 136. Interest of a cestui que trust in lands may be taken in execution: Pritchard v. Brown, 17 Id. 431; see Bogert v Perry, 8 Id. 411. Trust property is not subject to, on writ against trustee: Bastick v. Keizer, 20 Id. 237.

ALLEN V. SCURRY.

[1 YERGER, 36.]

REMAINDER IN A SLAVE, after a life estate therein, can not be sold upon an execution at law during the continuance of the life estate.

DETINUE for a slave. Isaac Bledsoe devised a slave named Tom to his wife, Catharine Bledsoe, for her life, remainder to his son Isaac.. John C. Hamilton recovered a judgment against the latter, and under and by virtue of an execution issued thereon, levied on the slave Tom during the life-time of Catharine, and sold the interest of Isaac, the son, to Hamilton. The slave was not taken into possession by the sheriff, nor delivered by him to Hamilton. Plaintiff in error, who was also plaintiff below, claims title to the slave by purchase from Hamilton. After the death of Mrs. Bledsoe, this action was brought in the circuit court of Sumner county against Scurry. Verdict and judgment for defendant. Motion for a new trial, which was overruled, and an exception taken. Appeal in the nature of a writ of error.

By Court, WHYTE, J. The single question presented by this record is, whether the plaintiff is entitled to recover the slave in controversy by virtue of his purchase from Hamilton; or, in other words, whether the remainder of a slave, after an estate for life therein, can be sold by execution during the continuance of the life estate?

No case has been shown on the argument to prove that the interest of Isaac Bledsoe (the son) in this slave is such a one as has been held a proper subject for seizure and sale by fieri

facias. In the case cited from 8 East, Lord Ellenborough, in delivering the opinion of the court, after stating the nature of the fieri facias and venditioni exponas, says: "The language of these writs and returns evidently imports that the goods and chattels which are the subject of them are property of a tangible nature, capable of manual seizure and of being detained in the sheriff's hands and custody; and such, also, as are conveniently capable of sale and transfer by the sheriff to whom the writ is directed, for the satisfaction of a creditor. These principles the chief justice of the king's bench applies to the case before him, and shows that it is not conformable to them."

What is the present case? Was the negro capable of seizure by the sheriff? He was physically so, to be sure, but was he legally so? Was he the goods and chattels of the defendant in the execution (the remainder-man, Isaac Bledsoe, the son)? Catharine Bledsoe, the mother, had a life estate or interest in him, and was entitled to the possession and the use during the whole time of its continuance, for the very nature of her interest being sole, was the exclusive enjoyment of it. A violation of this possession is a trespass, and a writ authorizing the sheriff to take into his possession the goods and chattels of A. is no authority for taking the goods and chattels of B.

But it may be said that the taking by the sheriff in the present case is but a temporary matter, and the tenant for life sustains but little, if any, actual injury. But let us pursue the legal mode as it ought to be, and as cases in general actually exist. The sheriff seizes the chattel, he keeps it in his possession until the sale thereof and delivery to the vendee; this period between the levy and sale must be at least ten days in every case; is not this an injury to the life estate? And suppose the contingency of no bidders, and that the goods remain in his hands for this defect, which the law recognizes, and in such cases directs another writ to issue, authorizing the sheriff to proceed and perfect the execution so commenced, a still greater injury must occur to the tenant for life.

The law can not sanction such proceedings, or any step which may eventually and ex directo lead to them; if the assent of the tenant for life could remove this objection, it is negatived in the present case by the proof; there could not in the present case be a delivery by the sheriff of the chattel sold, and the writ of fieri facias contemplates a delivery to the vendee as incident to the present enjoyment of the thing sold. I can find no case of a chattel sold by fieri facias which does not import imme.

diate delivery upon the sale, and immediate enjoyment of the chattel sold.

In the argument of the case of Scott v. Scoley, 8 East, 467, it was advanced on one side by the counsel, that in a case of land, the lessor's interest, who has made a sub-lease, may be taken and sold, subject to the right of the sub-lessee; and by the counsel on the other side it was said, that it may be admitted that a legal reversionary interest in a chattel, after a sub-term for years, is a salable interest by the sheriff, but it does not follow that an equitable interest is.

This argument was relied on by the counsel for the plaintiff in error, in the present case, as showing that the remainder of a term for years could be sold on a fieri facias. This argument only applies to the case of a reversion of a term for years, and only shows that what was advanced by the counsel on one side was not necessary to be controverted on the other, because it was not in point to the case before the court. But there is a very wide difference between the two cases of a remainder and a reversion of a term; the latter has no similarity to the former; for where the reversioner is the debtor, the whole term is sold, and in the common and usual way; a rent is reserved to the reversioner on the sub-lease, which presently goes to the purchaser, and he is thereby in the actual, immediate reception or enjoyment of the term; this is not the case with the remainder; it is wholly future and nothing present. No adjudged case has been cited to show that the remainder of a term for years could be sold under a fieri facias. The cases in the books cited are where the whole interest of the lease is sold, and that a present interest, and where the lessee was the debtor. See Fleetwood's case, 8 Co. 171; Dyer, 363 a, and Lord Ch. J. Treby's note thereto.

The most analogous case in the books to the present is that in Dyer, 67 b, note, by Ch. J. Treby, from 22 Edw. IV, 10, "that beasts let for years can not be taken in execution for the debt of the lessor. Same case in 10 Vin. 560, pl. 4, which says, that it can not be done till after the lease is determined; for, says the book, the lessor himself could not take them during the year," and yet the debtor has the property in reversion. This case is considered law by Ch. J. Baron Comyns, vol. 4 of his Digest, page 121. But if any decided case has gone so far as to say that the remainder of a lease of land is the subject of a sale under the fieri facias, it is very different in its nature from the present case, for in the case of a lease of land the interest