O. Sprinkle v. . Julius Martin

Pbabson, 0. J. The defendant acquired no title by his purchase at the Sheriff’s sale, for Sprinkle (the defendant in the execution) had no estate or interest in the land, which could be'sold by the Sheriff under execution. Thompson v. Ford, 7 Ired, 418. Harrison v. Battle, Dev. Eq., 537. When a debtor conveys to a trustee, in trust to sell and satisfy certain, creditors, the trustee holds in trust for the creditors, and then in trust for the debtor, as a resulting trust. This resulting trust cannot be sold as an equitable or trust estate, for, by the provision of the statute the purchaser at execution sale takes the legal, as well as the equitable estate, which would cut off *57 the creditors who are secured by the deed of trust. After all ot the debts’ secured by the deed of trust, are satisfied, the resulting trust becomes liable to sale under execution, for the purchaser may then take the legal as well as the equitable estate, without prejudice to third persons. Such was the case in Harrison v. Battle. But where there is a mixed trust, as in our case, that is, a trust to pay debts which are unsatisfied and a”resulting trust for the debtor, such resulting trust cannot be sold under execution ; for the purchaser cannot take the legal estate without prejudice to the creditors named in the trust as in Thompson vs. Ford, and in our case. So, His Honor erred in his instruction “ that the plaintiff being the maker of the trust to Cook, had a legal estate in him on the 3d day of May, 1858, liable to execution and sale.” The plaintiff at that time had no legal estate, and his resulting trust was not liable to execution sale. Ekkoe. Yenire de nono.