#### WILIE GAITHER vs. EUSEBIUS HETRICK

Where A, had contracted to sell certain land to B. and afterwards conveyed it to a trustee to be sold for the payment of his debts, and, on the day of sale, upon A.’s fotblddlng the sale, It was agreed by parol between A., B. and the cieditors secured by the deed of trust, that the land should be sold and the money, arising from the sale, should be subject, in the hands of the trustee, to the claim of the rightful owner; Held, that the trustee, although he had received the money, was not liable to an action of assumpsit by A., A. having at most but an equitaLle right.

Appeal from the Superior Court of Law of Caldwell County, at the Fall Term 1849, his Honor Judge Manly presiding.

This was an action of assumpsit for money had and received, and non-assumpsit pleaded. The case was, that Philip H. Benick was seised in fee of a tract of land, and, in October 1843, entered into articles with the plaintiff for the sale of it, and covenanted to convey it to (he plaintiff on or-before the 1st of March 1S44. On the 5th of January 1845, Beni.ck conveyed the §#me, with other lands and things, to the defendant, in trust to sell for the purpose,of paying sundry debts; and, shortly thereafter, the defendant offered the land at public sale, when the plaintiff, being present, forbade the sale. It was then agreed. *115verbally, between the plaintiff and defendant, and the creditors secured in the deed, that the plaintiff should withdraw his objection, and that the land should be sold under the deed, and the money be subject,.in the hands of the Trustee, “to the claim of the rightful owner.” The land was accordingly sold and conveyed by the trustee, and he received the purchase money and refused to pay it to the plaintiff, who then brought this action. The presiding judge was of opinion, that the plaintiff could not recover, and ordered a non-suit, from which the plaintiff appealed.

Gaither, for the plaintiff.

Guión, for the defendant.

RuFFtN, C. J.

It is quite clear, for several reasons, that the action will not lie. The agreement between Benick and the plaintiff is merely executory, and vests no title to the land in the plaintiff, nor any interest, which, for the purposes of this action, can be recognized at law. Therefore, there is no consideration, on which a promise can be implied, to pay the price of the land to the plaintiff, as being his money or the produce of his land. But if an equitable interest in the land can be recognized in the plaintiff, still he cannot recover, because first, the contract, being for an interest in land, was not in writing and is absolutely void at law : and, secondly', because the plaintiff has not cancelled Benick’s bond to him, nor released nor assigned to the trustee or to the purchaser his equitable title to the land. The plaintiff has yet all the right in the land that he ever had. The price paid by the purchaser was for the legal title, conveyed to him by the defendant, and it is evident, that, under the agreement at the sale, the defendant holds the money as trustee, either for the plaintiff, or for the creditors secured in the deed, as the one or the other shall be found to be entitled to it, as a part of the trust fund. *116That question can be determined only in a Court of Equity ; and therefore the judgment should be affirmed.

Per Curiam

Judgment affirmed.