#### JESSE WOMBLE vs. JOSIAH CHEEK & AL.

Where the plaintiff has an equitable title to a tract of land, the legal title to which is in the heirs of a person deceased, and the plaintiff’s wife is one of those heirs, he cannot have a decree against her to compel her to join in the conveyance of such legal title.

When he dies, his representatives may file a bill against her, or, when she dies, he may file a bill against her real representatives, to obtain her legal title.

Cause removed- by consent from the Court of Equity of Moore county, at the Fall Term, 1844. The facts, appearing from the pleadings and proofs, were these:

The bill states, that the plaintiff, some six or seven years, ago, contracted with one Travis Harper, to purchase a tract of land Jying in Chatham county, containing 171 acres, more or less, at the price of $650, payable in three instalments ! that he paid the first instalment, ($300) and gave his bonds for the residue, and was put into the possession of the land, *406he has retained ever since; that Harper, thereupon, made a conveyance of the land to the plaintiff. Before the second instalment became due, Harper required him to give furt]ier security for the payment of the said bonds; whereupon, he called on the late John Cheek to become his surety, who agreed to do so, upon condition that Harper should convey the land to him, for the purpose of indemnity. He therefore surrendered the deed, which Harper had before executed to him, (it never having been registered) and the plaintiff, as principal, and Cheek, as his surety, executed to Harper their joint bonds for the residue of the purchase money, and Harper then executed to Cheek a deed in fee for the said land. The plaintiff avers, that the conveyance was made to Cheek to secure him from any loss on account of his suretyship. And that it was agreed between them, that when the purchase money should be paid by the plaintiff) the said Cheek was to convey the said tract of land back to him. The plaintiff says, that, since that time, and before the death of Cheek, he paid all the purchase money that was due to Harper, and that Cheek then promised him to make him a deed for the said land, agreeably to the original contract; but he said he had mislaid the deed that Harper had given to him for the land, and could not do it then. Cheek died in the year 1836, without executing to the plaintiff any deed for the said land, as he intended. The bill states, that the defendants are the heirs at law of Cheek, and the widow, who has filed a petition for her dower in the said land, and is prosecuting the same to execution. The bill prays for a conveyance to the plaintiff of the said land, and that the widow of Cheek be enjoined from proceeding in her suit for dower.

As to the adult defendants, there is a decree against them pro confesso. The guardian of the infant defendants has made the usual answer, that he knows nothing of the matter ; and he prays that the plaintiff be put to full proof, &e. The wife of the plaintiff is one of the heirs of John Cheek, and the plaintiff makes her a party defendant.

*407 Winston for the plaintiff.

No counsel for the defendants.

Daniel, J.

In equity, -a wife may, by her next friend, sue her husband. And it is said, that, if a husband is a plaintiff in a suit in equity, and makes his wife a defendant, he is considered as thereby renouncing his marital right over her, and she is allowed to answer separately, without an order of' the court for the purpose. Calvert on Parties, 273. 1 Ba. A. C. 737. But this plaintiff is now tenant in common in possession in right of his wife. How can this court force her to make a conveyance of the legal title in fee to her husband? Although the wife, by her next friend, has not in this case made any resistance to the plaintiff’s claim, we do not see the mode in which we can, by a decree, carry into execution the prayer of the plaintiff against her. We must therefore dismiss the bill as to her, leaving the plaintiff or his heirs to seek a proper remedy against the wife or her heirs, when the relation of husband and wife shall have ceased by the death of one of them. We have examined the testimony taken in the ■cause, and it proves to our satisfaction the case .made by the bill, to wit, that the plaintiff purchased of Harper the said land, and paid the money, and that Cheek took the legal title by a conveyance from Harper, only to indemnify himself against any loss in his becoming the surety for the purchase money. There is, therefore, a resulting trust in favor of the plaintiff, and he has a right to call for the legal title, so far as the same is now in the other heirs of Cheek. From the necessity of the case, a decree must be made for a conveyance to the plaintiff from the other children of John Cheek, deceased, excluding the plaintiff’s wife. And, furthermore, he is entitled to a perpetual injunction, restraining the widow of Cheek from prosecuting her suit for dower in the said tract of land.

Per Curiam, Decree accordingly.