Kerr v. Stiffey

[176] The opinion of the Court was delivered by Huston, J. John Gallaher owned the land in question; and contracted to sell the same to Joseph Irvine, who paid more, than half the purchase-money. 4th of May, 1820, Ebenezer Kerr obtained a judgment against Joseph Irvine, which bound Irvine’s equitable interest in this land. The legal title was in Gallaher, and a right to the residue of the purchase money, before he could be compelled to part with it. John Gallaher brought suit to recover some instalments due, and in October, 1821, recovered judgment: he took out a Ji. fa. to November, 1821, and it was ievied on the land in question. A ven. expos, was issued to February, 1822, and the land was sold, and purchased by John Gal~ laher. If the land has been sold on Kerr’s judgment, and bought by Kerr or any stranger, the purchaser would have bought only Irvine’s equitable interest, and must have paid the balance due to Gallaher, in order to obtain the title. When a vendor on articles sells the land of the vendee for a balance of purchase-money, perhaps the purchaser would take both the legal and equitable title; for he who has the legal title having elected to proceed by judgment and execution and to sell and, could not, perhaps, af-terwards say, there was remaining in himself an interest not sold. But as that case is not before us, I give no opinion, about it; for here Gallaher, the vendor, became the purchaser. Irvine had an equitable interest: that was sold: the legal title and remaining equitable interest, was then in Gallaher; and when he purchased all the interest which Irvine had, the whole estate, legal and equitable, became united in Gallaher, and there was no interest remaining in Irvine. Clearly, Kerr was entitled to the money arising from the first sale, and claimed it: but he lost it by not pursuing the right mode to obtain it. But we cannot do wrong, and unsettle decisions and fixed principles on that account. To put it on the most favorable footing for Kerr, Irvine had only an equitable right, that could be levied on and sold, and the purchaser would stand in Irvine’s place, and must pay the residue of the purchase-money into Court. When he had done this, and got his deed, he had nothing to do with the application of the money. If the money was misapplied, or lost in the sherifPs hands, it did not affect the right of the purchaser. If a stranger had purchased, and the money had gone to Gallaher, so much the better for him; it would have extinguished the legal title: if it had gone to Kerr, the legal title might have been out against him; but still he had Irvine’s interest and all Irvine’s interest. Irvine had neither legal nor equitable title left in him; there was no right or title on which to levy the second execution: nothing to sell, and the purchaser got nothing, and can recoyer nothing. Judgment affirmed.