Hopkins vs. Stump, et al., 2 H. & J. 301

. Hanson, Chancellor, (October term 1804.,) On considering the bill, answers, depositions and exhibits, &c. it ¡appears to the chancellor, that he cannot grant .the prayer of the bill without a,violation of several principles in this court established.

In the first place,, the contract, of which .the complainant claims the benefit, is such aeon-1 tract as this court has again and again said it will not enforce, It was a speculating contract for continental money, which, if Patrick the party, instead of Hopkins, were; Complainant, this court would not enforce; and it is impossible for any rational man to coiiceive. that an assignee,? or any person claiming in the place of the party, shall be in a better situation than the party himáelf.

But it appears, the idea of the bompLiriant that Stump, in whom alone the legal title how is, was willing- to perform the contract, and so stipulated; bht that arrangements were made to defeat or defraud flie complainant. On this subject the complainant called on the defendants for full explicit answers; but the defendants have, by their answers, explicitly denied the chief important matters charged in the bill.

There is no' principle better established than this, that if d defendant be compelled to answer, whatever he says on oath shall prevail, unless refuted by the testimony of two' witnesses, or of one witness with equitable circumstances^. But the testimony in this case is nothing like such a refutation of the answers of the several defendants; notwithstanding the strong pointed charges made by the complainant.

On the demurrer, the chancellor long since decided ire the complainant’s favour so far as this — the court of appeals having, as he was informed, decided an equitable interest to be liable to a fieri facias, the party wlm has at a sale on a fieri facias purchased fairly an equitable ihtej-est, is entitled to the aid of this court to give hint the legal title. This is the plain meaning of the chancellor’s declaration, which however appears to have been misunderstood. It would seem likewise that the complainant misunderstood the chancellor in another particular.

But no person, acquainted with the laws, or rules or practice of this court, would conceive it the meaning of the chancellor, that, whatever matter stated in a bill is not denied, must be Considered as admitted. No! If interrogatories stated in a bilí are not answered, the complainant lias a right to except to the answer, and if the interrogatories are proper, the defendant will be compelled to answer plainly, fully 'and explicitly. If then any material matter, charged in the complainant’s Rill, has been neither denied nor admitted by the answers, it stands on hearing of the causé for nought.

This assuredly every lawyer will admit. And now let it be inquired, what is that equitable in! terest which the court of appeals has said is liable to be sold on a fieri facias? The chancellor does not fully understand it. But he readily conceives, that if A has purchased land from B, and paid for it, without (receiving a conveyance, or if B holds in trust for A, in either case A lias an interest liable to be taken and sold on a fieri facias, and the purchaser is entitled to the aid of this court to obtain the legal title.

But if A has only contracted and given his bond for the purchase money, and received, ill return, a bond of conveyance, the chancellor questions, whether A has such an equitable interest, as is liable to be sold on a fieri facias, so as to place the purchaser in the room of A. If such be the meaning of the court of appeals, they* in effect, say, that a causé of action or laW suit is liable to a fieri facias.

In short, the chancellor is Inclined to think, that the meaning of the court of appeals was, that if A has a complete equitable title to land, of which the naked legal title is in B, the land is liable to a fieri facias on a judgment against A-. The chancellor cannot conceive, that contracts for land, which ritay be deemed to confer an equitable interest, are so far bound by a judgment, as that, after the judgment, and before a fieri fades, the parlies cannot come to a settlement — For instance, A gives his bond to B for §10,000j the price of Black Jlcre, containing 500 acres.

B gives in return, his bond to A, in the penalty of §20,000, conditioned for conveying the said land. These bonds aré both dated the 1st of January 1800. At May term 18025 C obtains a judgment against A, for §10,000.

In No* ■vernber of the same year, A and B agree to vacate the contract, and afterwards C takes out a fieri facias, is it reasonable to suppose the law to be, that A liad an equitable interest, which being bound by the judgment of C, could not be given upj and that although A may have per» .sonal property, or land, sufficient to satisfy the judgment,' C may insist on laying the execution on the contract? fot laying it on the land is laying it on the contract. Nob The impropriety of th.e idea is glaring.

Another doubt-L Supposing equitable interests in, or mere contracts for\ land liable to a fieri facias, at what time are these interests or contracts bound? Ar.e they absolutely bound by the date of the judgments? Orare they tobe bound in the same manner as personal property is bound, viz. from. the time only of delivering the writ to the sheriff?

The chancellor has always considered, it á most important question, never decided, (that he kiiqws of,) whether or hot land is bound by .a judgment, yo far, as that if A luís a judgment against him, and before execution A bona •fide sells his right to B, C the plaintiff may, on fieri facias, take and sell it, without inquiring or seeking for other property. The chancellor is not apprized of any decision to this effect, if any such has been.

But if such decision has taken place, although he certainly would govern himself accordingly, he could not do otherwise thaa (question its propriety; , In England, whose laws we follow; lands were,-long since, bound by judgment; that is to say, if A, against whom a judgment is obtained, has land, and; after the judgment, conveys it, the plaintiff may, notwithstanding, affect it by the writ of Elegit. During our connexion with England, its parliament passed

an act, subjecting lands in America to be sold under a fieri facias, in the same manner as personal property, to satisfy judgments, obtained by subjects of Great Britain.

The act did not say a word respecting lands to be bound from the time of the judgment; but it seems; that most or many gentlemen of the bar entertain an idea; that although personal properly is only bound by the delivery of the writ, and lands are liable as personal property, the lands are bound from the timé of the judgment, to be taken by fieri facias at any time afterwards; Supposing the law to be so, and supposing contracts, as aforesaid, liable to fieri facias; that is to say, that the purchaser under a fieri facias is to be placed in the situation of the defendant at law, the nature of Patrick's contract is such, that, as the chancellor has already intimated, ought not to be enforced, even if Patrick were the com'plainant, instead of Hopkins* The counsel for the defendants has1 indeed alleged, that the chancellor’s decision on the demurrer is grounded on a mistake, and that the court of appeals never has decided. an equitable interest to be liable to a fieri facias.

If the counsel be right, there is an end of-the case at once. But the chancellor cannot think that the counsel is right, but laments that tribunals, whose decisions are to govern other tribunals, do not give their, options at large on every mpartantpoint. The chancellor, as is his uniform practice, on every important point, has given his opinion pretty much at larger He might still perhaps be more explicit as well as full, but he conceives that he hao said enough. Decreed, that the bill be dismissed.

From this decree the complainant appealed to tills court; and on the cause coming on.to be argued, and the counsel for the parties declining to argu(\ die case, •DSOlySE AFFIRMED, NISI»