#### Doe on the demise of BENJAMIN C. WILLIAMS v. JOHN T. COUNCIL.

A sale of land, by a decree of a court of equity, is, in effect, a sale by the owner of the land, through the agency of the court.

Where the laud of an infant was sold by a decree of a court of equity, and ¡the purchaser went into possession, but no deed was made by the master during his continuance in office, it was held, that during this time the purchaser was in as the tenant of the former owner, and that his taking a deed from the master after his going out of office, did uot change that relation.

Held further, that the purchaser’s making a deed of trust to secure debts, but still remaining in possession, did not change the relation, and make the holding adverse.

Held further, that an agreement on the part of such purchaser to sell the land thus bid off by Mm, absolutely, and an entry and possession of the party contracting to buy, he acknowledging himself the tenant of the person who bid off the land, did not make the holding adverse to the original owner.

This was an action of ejectment, tried before Shepherd, J., at the Spring Term, 1860, of Moore Superior Court.

■Previous to the year 1834, Benjamin C. Williams, the lessor of the plaintiff, was the owner of the land sued for, and Council, the defendant, was in possession when the suit was brought.

The defendant proved that Josiah Tyson, in 1834, purchased the land in dispute, at a sale by the clerk and master in equity of Moore county, under a decree of the court, as the property of Benjamin C. Williams, and went into possession, and so continued for five or six years, when one William Watson took possession. Tyson did not take a deed from the clerk and master until the 9th of January, 1841, when one was made to him by Bryan Burroughs, who was in office when the sale was made, but was not, when the deed was made.— In 1842, Tyson agreed to sell the land to tbe said Watson, for $3500, and the payment was to be made from the proceeds of the estate of Watson’s wife, in the hands of J. B. Cox, her trustee, and he entered into bond to make title to said Cox, as trustee, when the purchase money should be paid. Watson, ¡at that time, entered into the possession as the tenant of Tyson, and continued to hold possession as such, for ten or twelve *230years, viz, till March, 1853, when he left without surrendering the possession to him, or any one for him. The purchase money was paid about 1846, principally by J. B. Cox the trustee, but partly by Moses Cox, a brother of Mrs. Watson. In 1852, Watson called on Tyson to make a deed for the land to J. B. Cox, which was done on 17th of February, 1853.— The defendant also offered, in evidence, a deed from the said Cox, dated 17th of February, 1853, and he took possession of the land not long after Watson left, viz: some time in March, 1853.

Previously to the sale to Watson, to wit, on the 9th of February, 1841, Tyson executed a deed of trust to one Roberts, to secure the payment of debts, therein named, but no sale was ever made under it, and no action taken upon it, and Tyson’s possession was continued as above stated.

It was admitted that Benjamin C. Williams became of age on 20th of September, 1842. This suit was commenced -on 29th of December, 1857.

Upon these facts, His Honor being of opinion that plaintiff could not recover, the plaintiff took a nonsuit and appealed.

JB. F. Moore, for the plaintiff.

Wmston, Sr., and Strange, for the defendant.

Pearson, C. J.

This suit is for the same land which was the subject of controversy in the case of Williams v. Council, decided at December Term, 1856, 4 Jones’ Rep., 206. But the facts now presented, are not the same. The deed of trust, executed by Tyson to Roberts, 9th February, 1841, was not then in evidence, and the Court is not now in possession of the fact, which was then in evidence, that Benjamin C. Williams had commenced an action of ejectment against William Watson, on 20th of June 1845, which pended until Spring Term-1853. So we have one fact added and one fact omitted.

On the facts now submitted for our consideration, we are of opinion the plaintiff is entitled to recover.

- A sale in a case of this kind by a decree of a court of equi*231ty is, in effect, a sale by the owner of the land, through the agency of the court; Smith v. Brittain, 3 Ired. Eq., 351.— So, our case is the same as if Benjamin "Williams had, in 1834, contracted to sell the land to Tyson, who entered under Williams, and held possession by virtue of the contract. Tyson’s possession, consequently, was not adverse at its commence-. ment, and the question is, did any thing take place afterwards to make it adverse.

1. On the 9th of January, 1841, it is admitted Tyson was in possession, under the contract of sale. At that date he took a deed for the land, from Burroughs, who was not authorised to make it. So the title did not pass out of Williams, and the deed was but color of title. There certainly is no principle on which the fact of taking the deed could alter the character of Tyson’s possession. He had color of title, but his possession was not adverse.

2. On the 9th of February, 1841, Tyson executed to Roberts a deed of trust, to secure the payment of certain creditors, but he continued in possession. There is no principle on which the fact of his making this deed of trust, could alter the character of his possession. Suppose the effect of this deed was to pass his color of title to Roberts, and as between them, to make him hold under Roberts, still he was not thereby relieved from his obligation to Williams, and having entered under him and held possession for him, there was nothing he could do, or say, so long as he continued the possession thus acquired, to make his possession adverse, without the concurrence of Williams, or some act done by Williams to put an end to the relation which existed between them. If he wished to assume an adversary position, he could only have effected it by surrendering back the possession. Our ordinary notion of fairness shows that this must be so. As against Roberts, Tyson was entitled to a resulting trust, after satisfying the debts secured in the deed of trust, and as against Williams he had an equity, on paying the purchase money, to call for the legal title, but, in the mean time, he was holding *232under and for Williams. Taylor v. Gooch, 4 Jones, 436.

4. In 1842, Tyson contracted with William Watson to sell the land for $3500, to be paid out of the trust estate of Watson’s wife, and when the purchase money was paid, he agreed to make the title to Cox, in trust for Mrs. Watson. “Watson, thereupon, entered into possession as the tenant of Tyson, and remained in possession until March, 1853, when he left without giving up the possession to any one.” Here then is Watson taking possession under Tyson, and holding as his tenant, and Tyson bound to hold for Williams; of course, Watson’s possession being the possession of Tyson, could not be adverse to Williams.

So, upon the facts before us, there was no possession adverse to Williams, until after March, 1853. This action was commenced December, 1857 ; consequently, his title could not have been divested by the color of title in Tyson or Huberts, as there was only, at most, some five years adverse possession, and it is unnecessary to pursue the matter further.

What would have been the result, had the fact that in 1845 Williams commenced an action of ejectment against Watson been put in evidence, we are not at liberty to say. Did he, thereby, put an end to the congeable relation previously existing between himself and Tyson and Watson, so as, by his own act, to make the possession adverse, as when a bailor makes a demand of the bailee, and the bailee refuses to give up the thing bailed ? or did the obligation imposed on Tyson and his tenant to hold possession for Williams, still continue? These are questions into which we will not enter.

The record does not present this as a “ case agreed,”' so as to authorise this Court to give j udgment for the plaintiff.

Per Curiam,

Judgment reversed, and a venvre de novo.