By the Court,
Nelson, Ch. J.1. The principal question in this case arises out of the charge of the learned judge when he stated, that though the deed from Vail to Dudly was in fact delivered before the judgment, still if he (Vail) afterwards re-purchased the premises and paid the consideration money, a trust resulted in his favor, which was subject to be sold on execution; and that the title would pass under a sale to the purchaser, notwithstanding Dudly had before conveyed to Benjamin at Vail’s request.
This charge should be taken in connection with the proposition put forth by the counsel for the defendant, which was, that assuming the title to have passed to Dudly in good faith before the docketing of the judgment, yet, if Vail was justly indebted to Benjamin, and for the purpose of paying or securing said debt, he had procured a conveyance to him from Dudly, this would not create such a resulting trust as would be subject to the judgment, though the consideration passed solely from Vail to Dudly.
Considerable proof appears in the case tending to establish such indebtedness; and also that Vail procured the deed of September, 1827, from Dudly to Benjamin in part security or satisfaction of same. It is admitted that whatever consideration was received by Dudly for said conveyance, was paid by Vail.
The case of Jackson v. Seelye, 16 Johns., 197, is a decisive authority against the view taken by the judge. There one Beekman contracted, by paroi, for a lot of land with one White, and paid the purchase- money, against whom (B.) a judgment was afterwards recovered; but before the sale on execution White had conveyed, at the request of Beekman, to one Little to secure the payment of a debt due, and under *188whom the defendant claimed. The lessor of plaintiff was the purchaser under the execution. The court held, that the conveyance of White to Little did not create a resulting trust in favor of Beekman although White gave the deed on the consideration paid by Beekman, yet as between Beekman and Little the former renounced to the latter the benefit of the consideration in satisfaction of a debt, which was the same, in effect, as if Little himself had paid the consideration.
The judgment is not a lien upon the interest of the cestui que trust under the 22d Car., 2 (1 R. L., 1813, p. 75), as it only authorizes the sheriff “to make and deliver execution of all such lands as any other person is seized or possessed to the use of, or in trust for him, against whom execution is sued,” &o., “ at the time of execution sued.” So that at law, while the judgment binds the legal estate of a party from the time it is docketed, it only affects his trust property at the time of execution sued out. (Hunt v. Coles, 1 Comyn, 226, and Haines v. Pugh, 4 Bing., 335, cited in 18 Wend., 249.)
Again, as a resulting trust may be proved, so it may be rebutted, by paroi, and hence, says Mr. Sugden, such proof will be admitted to prove the purchaser’s intention that the person to whom the conveyance was made should take beneficially, and, if satisfactory, he will be entitled to the estate; but the proof rests upon him to show that the man from whom the consideration moved did not mean to purchase in trust for himself, but intended a gift to a stranger. (Sugden on Vendors, 619; Jackson v. Feller, 2 Wend., 465 and 469, and cases there cited.)
Now although the proof was clear, that whatever consideration may have been received by Dudly for the conveyance to Benjamin was paid by Vail (the defendant in the judgment), there was evidence tending to show an indebtedness from Vail to the latter, and that the deed was made to him in part satisfaction of, or security for the same; and hence the broad proposition of the learned judge, that the title would pass to the purchaser, notwithstanding this deed was given by the direction of V., when applied to the facts *189in the case, can not be upheld. Assuming the transaction between Yail and Beekman to have been fair, and founded „upon a good consideration, no trust would result; an absolute title passed by the deed to the latter; and so the judge should have charged upon this branch of the case.
If the relation of debtor and creditor did not in fact exist between Yail and Benjamin, and the latter is to be regarded as a naked trustee of Y.; or, if-the deed was made in fraud and hinderance of creditors, I do not deny but that such an interest resulted to Y. as might have been seized and sold on execution, within the statute. The case of Jackson v. Bateman, 2 Wend., 570, is a full authority for this conclusion. See also Bogart v. Perry, 1 Johns. Ch., 52, and same case in error in 17 Johns., 351; 3 Paige, 220.
2. Assuming that the deed from Yail and Smith to Dudly was actually delivered, in respect to which fact there is much ground for doubt, then the question as to the effect of a paroi partition among the purchasers from Winans does not arise. The whole title passed by the conveyance; and the case must turn upon the repurchase by Yail and deed to Benjamin. But upon the other view, to wit, the non-delivery of the deed, it becomes material to inquire as to the amount of interest acquired under the judgment and execution. Winans conveyed to Yail and Smith, who held the estate for themselves and the two other purchasers. A written agreement was entered into between all the parties in interest, partitioning the premises by metes and bounds; but no release was executed in respect to the parcel in question. This was set off to Dudly, but he, not being a party to the deed of Winans, at law took no part of the legal estate, and stood only in the relation of cestui que trust in respect to the portion set off to him. The title was still in the two grantees, Yail and Smith, even after the agreement making partition; and hence the judgment against Yail could attach only to a moiety of the lot.
If Dudly had been a party to Winans’ deed, then the agreement making partition among the several tenants in common would have had the effect of severing the interests, even without a release. (Ryers and others v. Wheeler, 25 *190Wend., 437, and cases there cited.) But as he was not a joint grantee, and stood only in the relation of cestui que trust, I do not see that this effect would folio w,the partition' as to him.
Be this as it may, however, it is clear the only legal interest that can be claimed for Vail in this parcel, and upon which the judgment could operate, is an undivided moiety.
But, assuming the deed from Vail to Dudly has not been delivered, and further, that Vail has purchased out Dudly’s interest, he would then have an equitable claim upon Smith for eC conveyance, which might be enforced in chancery; a judgment against Vail would also operate as an equitable lien upon such interest, which might be enforced in the same way. (18 Wend., 236.)
There is also another view of the law in relation to this part of the case that may, perhaps, arise upon the new trial, if it does not already appear, which will supersede the one taken above.
Vail, it is said, was in actual possession of the whole lot at the rendition of the judgment, and continued thus to occupy till he surrendered it to Benjamin. He, therefore, would be estopped from denying the title of the purchaser under an execution against himself, and so Would all persons subsequently claiming under him. (3 Caine, 189, and 10 Johns., 223; 9 Cow., 81.) So in respect to strangers or intruders entering without right. (2 Johns., 22; 4 id., 211; 7 Cow., 637.)
Now, assuming that the deed from Vail to Dudly had not been delivered; the one from Dudly passed no estate or interest wdiatever to Benjamin, and his subsequent entry was without right. If he entered under Vail, he takes his place ' and is estopped from controverting the title of the purchaser; if under the deed of Dudly, then he is without right and equally estopped, for Dudly had not even an equitable interest at the time of this conveyance if the deed from V. to him had not been delivered. That was rebutted by the proof that Vail had returned the purchase money.
It has been urged, if the plaintiff is only entitled to a moiety of the lot and is to be regarded as standing in the re-*191lotion of tenant in common with Smith, he can not recover without first showing an actual ouster.
The answer is, the defendant does not connect himself with the title of Smith, and can not therefore set up that relation with the plaintiff. The principle has no application to the defence, as the objection can be taken only by the co-tenant or by one under him. (1 Hill, 121.)
There is nothing in the objection that the plaintiff has not paid the purchase money to the sheriff, as the fact, if true, would not invalidate the deed given in pursuance of the certificate of sale. If it has not been paid, the plaintiff is still liable to the sheriff, who may enforce payment or not at his pleasure. The effect of his deed can not be avoided in this way.
New trial granted.