Terry, C. J., and Baldwin, J., concurring.
The proof of the execution of the deed and of its accidental destruction, is full and satisfactory, and the jurisdiction of a Court of Equity to decree a re-execution of the deed, is unquestionable. The jurisdiction is maintained in such cases where the destruction would create a defect in the deradgnment of the plaintiff’s title, and thus embarrass the assertion of his rights to the property. “ If a conveyance to apurchaser,” observes Sugden, “have accidentally been burned, the seller will be compelled, upon a re-sale, to join in a conveyance to the new purchaser, or, of course, if the estate is not re-sold, to again convey to the first purchaser.” (On Vendors, Chap. IX, § 4, 27; Adams’ Equity, 167.)
The defendant rested his defence upon an alleged subsequent purchase of the premises at a sheriff’s sale, on execution, issued upon a judgment recovered against the plaintiff.' The record of *531the judgment introduced shows a recovery for §182 90 costs; the execution issued recites such recovery to have been for §189 90; the return of the sheriff specifies that the sale was made to Clark; the certificate names the defendant as the purchaser ; and it does not appear that any deed was ever executed. Whether the execution was warranted by the judgment, or whether the certificate of sale can control the return of the officer, are questions which it is not necessary to consider for the determination of the present case. It is a sufficient answer to the defence that there was no consummation of the sale by the execution of a sheriff’s deed. Until such consummation, the estate remained in the judgment-debtor. Until then, the purchaser possessed only a right to an estate which might have been perfected by conveyance. (McMillan v. Richards, 9 Cal., 412, 415; Smith v. Colvin, 17 Barb., 161.)
The execution of a new deed to the plaintiff, will not prejudice any rights the defendant may have acquired under the sheriff’s sale, if, in fact, such sale was ever consummated, as he can recite in it the destruction of the first deed, and the object of the re-execution.
Judgment reversed, with directions to the Court below to enter a decree in conformity with this opinion, but without costs against the defendant.