LINCH against GIBSON & others, & F. contra.
Where A & IS contracted to sell ⅜ tract of land to C,bv an nn'leTseal with a penal-tyy and gave up the pos-1 press tinn that the . title should . remain in them until nionev^wls52 vhollv paid, andaftev-wards an ex-sued against was levied^ upon this land, whic.n was sold t.n notice of 0⅛ equitable claim; it was ilecreed that i’^bl'eto Ac execution, , ffewdejdi-ye.ud A & 15⅛ legal t,i-tie, but that sed with no-" tice of 0⅛ \ lia'm,he should conj yeytohiVn ^^tlieun-V paid balance ' of the pur- ■ ¿base money.
D. R? B Fisher were seised of a tract of land in Guib-Jord County, which the former, in behalf of himself, and aS agent for the other, agreed to sell to Linch, to whom executed á .parol contract to make a title, when the purchase-money S278 should be paid ; the contract ex-stipulating that the title was to remain in the the whole of the consideration iponey, with . . . " interest, was paid. ,.
4 The contract was dated the 4th of February, 1801, and unmediately thereafter Linch took possession pf the-land, and continues still to reside there, ‘
jn pne year 1804, the Fishers instituted a suit against Gibson, which they afterwards dismissed, and an execu-tlon f°r the cost:s issued against them, which was levied by the Sheriff of Guilford upon the land aforesaid, which f. •' he duly sold on the 15th of February, 1806, to Gibson, W^° receiving a conveyance, instituted an ejectment against Linch. The latter then filed a bill in equity against Gib- , , , p. ' . . . ' ' . “ *on and tne fishers, praying an injunction against Gibson to stay ^‘S Proceechngs at lawq offering to repay him the money advanced in the purchase of the land ; gad pray-⅛8 that he might be decreed to copvey such title as he acquired by the Sheriff’s sale: The bill further of- , ' • fared to pay to thc Fishers the residue of the money due uPon tbe contract, after deducting what had been paid by Gibson to, the Sheriff, and concluded with the prayer, that he (Linch) mightbe quieted in his possession.
. Gibson, in his answer, admitted, that when he pur.-chased from the Sheriff, he had notice of Linch's pur*245chase from the Fishers ; and offered to convey to Linch, upon his paying him the money which Linch still owed for the land, which he claimed upon the ground that the ' Sheriff ’s sale to him comprehended all the title and in? terest of the Fishers.
The Fishers then filed their cross bill against Gibson and Linch, praying that an account might be taken of the purchase-money ; that Linch might be decreed to pay it to them, and receive a conveyance from them ; and offering to pay Gilson the money he paid the Sheriff, provided he was entilled to it.
Daniel, J.
The legal title to the land mentioned in the bill was in Daniel Fisher and his brother. The bond given to Linch to make title when the purchase money was paid transferred nothing at law, it only gave the complainant Linch an equitable title when the money was paid. The ji. fa. which issued from Salisbury Superior Court for the costs, in consequence of the Fishers having been nonsuited in their action against Gibson, legally covered the land. The sale and deed made by the Sheriff on the J 6th of February 1806, to Gibson, transferred all right, title, and interest, which the. Fishers had in the lands. The cross bill brought by B. Fisher and others, against Gibson and Linch, must be dismissed as they have no title either in law or equity.
In the other case, I am of opinion, as Gibson purchased the land with full notice of the complainant’s equity, he is not put in any better situation than the Fishers would have been, provided the execution and sale had not been jnade; therefore he should be decreed to convey to Lincty en the payment 6f the money mentioned in the bund*
*246errata. Page 131, in the maigittal note, read privity for “priority.*1 Page 140, line 12th from the tops read quieting tor “trying.” Page 143, line 4th from the bottom, read reded for “ redire.” Page 150, line 10th from the top, read materia for “ materna.” Page 151, line 15th from the top, del.- the period and insert a comma, so. as to make the word enactment, a part of the same sentence. Page 162, line 19th from the top, read discussion for “‘discretion.” Page 164, line 10th from the botton, insert -was between “cause” and “ decided.” Page 169, line 14th from the bottom, insert or between “chattel” and “ land.” Page Í81, line 2dfrom the bottom, insert both between “ to” and " the.” Page 182, line 6th.from the bottom, read Court for “ Courts.” Page 183, line 1st from the top, insert a between “ to” and “ subject.” Page 186, line 15th from the bottom, insert that after “have.” Page 186, line 12lh from the bottom, read give^u^^áye,u Page 189, line 1st in the marginal note, reatdHH^aT’ Page 190, line 9th from the bottom, read it Page 196, line 15th from the top read pro for “ fro.” Page 229, line 7th from the bottom forgery for “ perjury.’’ Page 236, line 3rd from the bottom, after “in” insert evidence, Page 240, line i4th from the top, read chattel fot- “ chattle.”