Reed's Appeal

The opinion of the court was delivered by Gibson, O. J.

If any thing is settled by reason and authority, it is that a judgment creditor is not entitled to the protection of a purchaser of the legal title against an equitable owner or his creditors, or to any advantage which his debtor had not. Throughout a series of decisions, from Finch vs. Winchelsea, 1 P. W. 277, to Ludwig vs. Highley, 5 Barr 132, the law has been so held in England and Pennsylvania. The reason given for it, more explicitly in Brace vs. the Duchess of Marlborough, 2 P. W. 49, than elsewhere, and relied on in Cover vs. Black, 1 Barr 494, that lien is an incident but not the object of judgment, is practically as well as theoretically true. Doubtless a dealer on credit is influenced by the magnitude of the debtor’s visible means of payment; but it follows not that he trusts particularly to the land, for there often is none; nor is it usual, where a mortgage is not taken for a loan, to search the office for incumbrances, or in *479 quire into the solidity of the ostensible ownership. In the ordinary course of dealing, the creditor looks to the debtor’s personal ability, and to nothing else. When he looks to real security, he takes a mortgage, which, alone, if the title be not plainly an inchoate one, makes him a pmehaser of the beneficial ownership, discharged of all secret trusts or frauds whatever. The argument for the appellants is, that to allow another to have the indices of ownership gives him a false credit, which may prejudice those who deal with Mm on the foot of it, but so may the possession of another man’s chattel, which is the index of its ownership, yet no one supposes that the lender of ahorse subjects it to execution for the debt of the borrower. The mischief of such a credit is overbalanced by its public convenience. The lien of a judgment rests on the construction of the stat. Westm. 2d, and not on any principle of general equity or the common law. Not so the immunity allowed to the purchaser of a title perfect on the face of it, who might, without it, be deprived of the subject of his purchase by clogs and burthens on it, which no penetration could discover.— Even as purchasers, ICerr’s creditors could not shake off White’s equity, of which his exclusive residence on the land, and cultivation of it, would be constructive notice. Not to insist on that, it is enough that White made the bargain and paid all that was paid; for it has always been supposed that notice of a resulting trust, or an incumbrance, is early enough at the sheriff’s sale of the legal title. But if the judgment creditor had the immunity of a purchaser, notice would then be too late to impair the value of his security. A sheriff’s vendee, with notice, buys exactly what the judgment creditor can sell; and if he can sell no more than the interest of the debtor, it follows that he stands in the place of the debtor. White and Kerr had each an estate in the land; White a resulting trust, proportionate to the amount of money paid by him; and Kerr the legal title, as a security for what he might be compelled to pay; but the whole was sold on a judgment against Kerr, for the residue of the purchase money, which bound all that the vendor had parted with, and White, or his creditors, became entitled to the surplus made on the execution. The judgment of White’s creditors bound his equitable title to the land, and, consequently, his title to the surplus money substituted for it in the hands of the sheriff; the judgment of Kerr’s creditors bound his legal title, which, as it had. not been paid for, was exploded by the sheriff’s sale. He had paid nothing, and done nothing, and on what ground his creditors could be let in on the price of White’s equity, it is not easy to perceive. It is whispered that the conveyance was taken in Kerr’s name, to keep White’s creditors at bay. What have Kerr’s creditors to do with that ? To allow them to reap the fruits of the fraud, would accomplish the very purpose which the law is anxious to frustrate. A fraudulent agreement *480 binds the parties to it always, but the parties intended to be cheated by it, never. Were the contest between Kerr’s creditors and White, proof of collusion would postpone him; but though a small part of the surplus is coming to him, there is no evidence to affect him.

Decree affirmed.

Coulter, J. dissented.