#### DEN EX DEM. CALVIN EDNEY & AL. vs. JAMES WILSON.

The lessors of the plaintiff claimed under a sale hy execution, tested in March, 1832, against one Lewis. The defendant shewed that Lewis had only an equitable title, and that by bond, bearing date in January, 1832, he had contracted to sell the same to the defendant — Held, first, that the title of Lewis having been equitable, the defendant could not therefore be estopped from insisting thereon.

Held, secondly, that Lewis by his bond had conveyed all his equitable interest to the defendant, before the teste of the plaintiff’s execution, and therefore there was nothing on which that execution could be levied.

Appeal from the Superior Court of Law of Yancy County, at the Fall Term, 1844, his Honor Judge Battle presiding

*234The lessors of the plaintiff claimed the premises in dispute, ^le purchasers thereof, at an execution sale of the property of William J. Lewis. The plaintiff alleged, that the de-yencjant ajso claimed únder the said Lewis, and gave him notice to produce on the trial the contract or instruments under which he claimed; and, accordingly, the defendant produced the bonds hereinafter mentioned, and the plaintiff read them to the jury. The one is an obligation, dated the 3d of January, 1832, given by William J. Lewis to the present defendant, in the penalty of $800, with condition that he would, on request, convey or cause to be conveyed to Wilson the premises in dispute, which are therein described as being part of a tract of land, which Blake Piercey had before agreed to sell to James Wilson, (the defendant) and bound himself, Piercey, by bond, to convey to said Wilson, and which land the said Wilson had sold to the said;Lewis, and transferred by assigning to Lewis the said bond so given by Piercey. The other bond produced by the defendant was that referred to in the one just mentioned, and is an obligation, dated November 14th, 1828, given by Blake Piercey to James Wilson, in the penalty of $1000, with condition that he would convey to said Wilson, or his assigns, a certain tract of land therein described; which, it is admitted, includes, as a part of it, the premises in dispute. On this bond is an indorsement, dated January 23rd, 1830, purporting to be a contract of sale from Wilson to Lewis, of the land mentioned in the bond, and to be an assignment of the bond to Lewis.

In March, 1832, judgment Was rendered against William J. Lewis, and execution issued thereon in July following, on which the premises were sold, and the lessors of the plaintiff bought them; the present defendant being then in possession under his contract of re-purchase.

On the trial the counsel for the plaintiff contended, that the-defendant, claiming under Lewis, was estopped to deny a legal title in him; or, at all events, that Lewis had such an equitable title as was subject to be sold under execution, so that the legal title would pass to the purchaser. But the court *235held otherwise, and the plaintiff submitted to a non-suit and appealed.

Francis for the plaintiff.

No counsel for the defendant.

Ruffin, C. J.

The title of Lewis appeared, upon the plaintiff’s own evidence, to have been but equitable at any time, and, consequently, the defendant could not be estopped from insisting thereon.

If Lewis be considered as the cestui que trust in fee, then, the land was not subject to the .execution, under which it was sold, because, before execution sued, Lewis had contracted to sell to the .defendant, which amounted to an assignment of the trust, and took the case out of the act of 1812. Hall v. Harris, 3 Ired. Eq. 289. Indeed, Lewis’ sale to the defendant was some months before the teste of the executions, and even the rendering of the judgments against Lewis, and it is not impeached for fraud ; so that there could be nothing in him, either at law or in equity, liable to execution.

Per Curiam, Judgment affirmed.