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land described in the patent and warranted the title thereto. That G. M. Deadrick and others, in March, 1805, recovered judgment against Brown, and levied upon a tract of tbree thousand acres granted to Armstrong, and sold one thousand one hundred acres, the part now in dispute, by metes and bounds, to McNairy, who, on the twenty-second of December, 1812, received his deed therefor from the sheriff. It appeared that on the day of the sale Brown delivered to the sheriff a plat of the land levied on, and on which the land was divided into three lots, and the bounds and number of acres in each lot specified. The sheriff was directed to sell the land by lots, as laid down on said plat, and to sell the lower lot first, which he did, McNairy purchasing it. That the said patent, with said deed indorsed on it, was, some time after said sale, delivered by Brown to Vance, and Armstrong, at their request, executed' to Vauce, on August 25, 1809, a conveyance for the whole tract, who, at the time of receiving his conveyance, was informed of the sale thereof to McNairy. Vance recorded his deed, went into the possession of the one thousand one hundred acres, claiming it as his own, and retained and concealed the deed so made by Armstrong to Brown. The supreme court divested the title of the defendants to the one thousand one hundred acres, and vested it in McNairy. A petition for rehearing was overruled. The bill alleged the following errors in the decree: 1. That the levy is not sufficiently certain and descriptive. 2. That Morgan Brown had not such an interest in said land as was subject to sale by execution. 3. The proceedings on said sheriff's sale were void, and no right vested in the purchaser.
The bill having been dismissed, an appeal was granted to this court.
Thompson, for the complainants.
By Court, GREEN, J. The deed from Armstrong to Brown vested in the latter the entire right to the land, and nothing remained to make the legal title complete in him against all the world but the probate and registration of the deed as between parties; this deed was valid without registration. By virtue of it, an inchoate legal title was vested in Brown, and so far as lis creditors are concerned, he must be regarded as the legal owner; for the legal estate is vested in the bargainee, upon the execution of the deed: 2 Saund. on Uses, 5. Brown was present at the sheriff's sale, divided the land into lota.
and directed which should be sold first, thereby claiming it as his.
The sheriff's deed conveyed all Brown's right to the one thousand one hundred acres to McNairy. It was Brown's duty to have delivered to him the title papers, or to have registered the deed from Armstrong to himself. He did not do so, but suppressed the deed, and Vance himself and Armstrong entered into a fraudulent combination by wbich to defeat McNairy of bis right. The deed being suppressed, and its registration prevented by a fraud, to which Vance was a party, as to him it shall be taken as though it were registered: 2 Call, 198. It is admitted Vance gave no consideration for the deed from Arnstrong to him. It was made at the request of himself and Brown, for the consideration Brown bad paid Armstrong. Vance was fully apprised of the sheriff's sale, and of McNairy's right. In procuring the deed to himself for McNairy's land, and suppressing the one to Brown, he was guilty of a fraud, which as against McNairy vitiates his own deed; and hence the jurisdiction of this court to decree out of him whatever title he may have acquired by the deed from Armstrong, and to vest it in McNairy: 1 Hawks, 87. The sheriff's levy does not deseribe the land so specially as it might have done. But as Brown was on the land at the time of sale with a plat, dividing it into three lots, and designating the one to be sold, every benefit to be derived from the most special levy was hereby attained. The owner knew precisely what was offering for sale, and the bidders saw delineated on the plat the land they were purchasing. We think, too, that the levy so describes the land as to distinguish it from all other tracts. The same specialty of description is not necessary here, where a deed from the sheriff, constituting the purcbaser's title, follows the sale, as would be required were the title to rest upon the levy. We therefore affirm the decree of the chancellor.
Cited upon the following points: That a deed conveying land is, as between the parties, valid without registration, and vests an inchoate legal title in the grantee, which is subject to levy and sale by execution, in Shields v. Mitchell, 10 Yerg. 7; High v. Batte, Id. 337; Montgomery v. Hobson, Meigs, 454; Ward v. Daniel, 10 Humph. 607; Roger's Lessee v. Cawood, 1 Swan, 146; Ready v. Bragg, 1 Head, 514. In Roger's Lessee v. Cawood, 1 Swan, 146, to the effect that registration of a deed is necessary to vest in the grantee a perfect legal title, upon which ejectment may be maintained: See Montgomery v. llobson, Meigs, 437. In Parker v. Swan, 1 Humph. 84; Brown v. Dickson, 2 Id. 396; Gibbs v. Thompson, 7 Id. 181; Helms v. Alexander, 10 Id. 86; and Trotter v. Nelson, 1 Swan, 12, to the effect that a leyy on land is sufficient if it so describe the land as to distinguish it from all other tracts.
DEED, as between the parties thereto, is valid without attestation, acknowl. edgment, or recordation: Fitzhugh v. Croghan, 19 Am. Dec. 139.
ARMSTRONG v. CAMPBELL.
(3 YERGER, 201.) TRUSTEE CAN NOT PURCHASE AT HIS Own Salz, either in person or by an.
other, and a sale made to himself of the trust estate is invalid, and the
cestui que trust is entitled as of course to have it set aside. COURTS OF EQUITY, equally with courts of law, are bound by statutes of
limitation in all cases of bailments, loans, etc., although express trusts,
where the remedies at law and in equity are concurrent. Trusts CREATED IN A Party by implication, as where he has obtained
property by fraud or unlawful means, although there is no remedy at law, also come within the statutes of limitation. In such cases the trust is not created by contract, nor does the relation of trustee and cestui que
trust exist. WHERE A TRUSTEE HAS POSSESSION of the trust estate for his cestui que trust,
he can not, by any act of his own, without communication with the cestui que trust, so change the nature of his possession as to make it ad. verse; and if he part with the possession to a third person, in whose favor time would operate, and regain it by purchase or descent, he takes
it charged with the trust. WHERE BY CONTRACT between the complainant and defendant, the latter
was authorized to sell the lands of the former, and account for two thirds of the proceeds, retaining the other third as compensation, this consti. tutes the relation of trustee and cestui que trust, and although the remedies at law and in equity are concurrent, the statute of limitations is no bar to an account; and if the defendant contracts to sell the lands to a partnership, of which he is a member, the sale is voidable at the instance of complainant, and if the defendant sell the warrants of survey for such of the lands as can not be discovered, and then take them back from his vendee, and locate them in his own name, he can not hold the
lands thus located, against the principal. Bill filed in January, 1823, setting forth that in May, 1799, Martin Armstrong contracted with defendant to attend to his land business in east Tennessee, and to sell lands there situated upon an allowance of one third; that defendant sold larga quantities of land under said agreement in Martin's life-time, and concealed the sales, under the pretense that they could not be identified; that in November, 1806, defendant, with a view to defraud Martin, sold a large quantity of warrants to James Trimble for a pretended consideration, with a contract that Trimble was to reconvey half to defendant, and pay a higher price for the residue; that in pursuance of said agreement Trimble drew warrants, transferred one half to defendant, and paid the increase price for the other half, as agreed, from which defendant deducted large sums for expenses, which he had agreed to pay himself by his said contract with Martin; that upon said warrants defendant has purchased and had granted to him large tracts of land, which he is in possession of, enjoying the rents and profits; that defendant has been repeatedly called on for an accounting, but has neglected and refused to account; that Martin during his life-time was superannuated and incapable of doing any business of importance; that between 1802 and 1805, defendant by fraud procured conveyances from Martin of one tract of five thousand acres, and another of five thousand seven hundred and sixty acres, which descended to him from John Armstrong, without any consideration; that on an agreement between General Robertson and Martin, a certain judgment obtained by William T. Lewis against the latter, wag satisfied by Robertson, after which defendant procured an assignment of and pretends that he purchased said lands under the assignment at sheriff's sale; that Martin died in 1807 or 1808 intestate, and that no administration was ever taken out on his estate, and that complainants are his heirs at law; that defendant received large sums of money for lands and warrants before and since Martin's death, which he refused to account for. Complainants prayed that defendant be compelled to account, and the matter be referred to the clerk and master to ascertain the various sums of money received by the defendant for sales of land and land warrants; that defendant be compelled to pay such sums as may be found due; that defendant be divested of all right and claim to said two tracts of land, and also of all lands entered or granted in his name upon warrants drawn from grants of the said Martin; and also that he be required to account for the rents and profits thereof, and for general relief.
The defendant's answer admits the agreement or contract entered into in May, 1799, as set forth in the exhibit, which is a copy of the contract, and alleges that the said Martin Armstrong himself stated, that in pursuance of it, defendant made many and persevering efforts to find and identify the lands of Martin Armstrong, embraced by said contract, which were ineffectual. That grants did not agree with entries, and could not be found, which state of things continued until the legislature authorized the issuing of certificates for lost land, soon after which defendant entered into an arrangement with James Trimble, in November, 1806, by which he sold and transferred to Trimble a large amount of land claims, with the expectation and understanding that he (Trimble) would draw certificates for said land, they being well understood to be what was called lost lands.
That said sale was for fifty cents per acre, upon a credit of one, two, and three years, which is insisted to be a fair and full price. That Trimble, being unwilling to purchase so largely, would not make the purchase, unless defendant would take one half of the purchase, or become responsible to Armstong for one half, which defendant agreed to do; that said arrangement was fair, bona fide, public, without imagination of fraud, and known to all who chose to inquire about it; and was soon after placed upon the records of the county.
The quantity of land thus sold was ten thousand one hundred and fifty acres, of which defendant was, by the contract under which he acted as Armstrong's agent in making the sale, entitled to one third; so that all he could possibly have gained by the trade with 'Trimble, upon the supposition that he intended to commit a fraud, was a right to purchase one thousand six hundred and ninety-one acres, at fifty cents an acre; an advantage, if any, certainly too small to influence a man of ordinary honesty, property, and standing in society. Defendant also insists that there was a provision in the contract, by which he was created Armstrong's agent, and under which he acted in the sale to Trimble, by which he was allowed to act in the whole matter according to his “ skill and judgment,” which, defendant says, was purposely introduced to give him latitude as an agent, and prevent him from being restricted in the exer. cise of his functions, by all the rules of law and equity applicable to agencies in general; and he insists that in the whole matter be acted according to his best “skill and judgment.”
Answer further states, that by the agreement between Trimble and defendant, Trimble was to dispose of such warrants as he thought fit, over and above his half, and account for one half the proceeds to defendant. Denies that the price to be given by Trimble was lower, because certificates bad not been obtained, as, in fact, most of the preliminary facts had been ascertained, and some steps taken towards procuring the certificates, before the agreement with Trimble; and that all subsequent expenses were to be borne by Trimble, the purchaser.