The opinion of the Court was delivered by
Knox, J.This was an action of ejectment. Previous to April, 1818, the title to the land in dispute was in Ann Lehman. On the 7th of April, A. D. 1818, Ann Lehman and her son, Abraham Lehman, sold by articles of agreement to Philip Moser and John Exline two tracts of land — the one for which this action was brought, and a mountain tract — for the consideration of one thousand dollars.
In 1823, an action of covenant was brought by Ann and Abraham Lehman against Philip Moser and John Exline, to recover the unpaid purchase-money. Moser died in 1835, and in November, A. D. 1842, a judgment was obtained against Exline, in the action of covenant, for the sum of $854.23. Upon this judgment the tract in dispute was sold in January, 1843, to Samuel M. Barclay, the executor of Ann Lehman, who conveyed it to the defendant Arnold in May, 1843. Philip Moser went into possession in 1818, and remained until his death in 1835, leaving a widow and children, who continued the possession until 1844; since which time the tract has been occupied by the defendant, under his purchase from Barclay. The plaintiff has the title of the heirs of Philip Moser.
The important point in the case is the effect of the sheriff’s sale upon the judgment obtained in the action of covenant. The plaintiff denies that this judgment was a lien upon the land, averring that the purchase was really for the benefit of Moser, and that Exline was a party' to the articles of agreement, not as purchaser, but merely as security for the payment of the purchase-money. He further alleges that the purchase-money for the tract in dispute had been paid by Moser to Ann Lehman in her lifetime. The defendant’s position is, that the judgment, although against Exline alone, having been recovered in a suit brought on the articles of agreement for the sale of the land, was a lien upon the whole equity outstanding, and that the sale extinguished all the interest which Moser and Exline, or either of them, had in the land. The Court of Common Pleas permitted the plaintiff to prove by parol testimony that the purchase was made for the benefit of Moser, that Exline signed the agreement as surety, and that Ann Lehman had said in her lifetime that the tract in dispute had been fully paid for by Moser; and instructed the jury that if they found these facts their verdict should be for the plaintiff.
By the articles of agreement an equitable title passed to Philip *43Moser and John Exline, as tenants in common, with the right to demand a conveyance of the legal title upon the payment of the purchase-money. The equitable title of Exline could not be destroyed by parol evidence that he was a surety instead of a purchaser, first, because this evidence could not gainsay the written instrument under seal, and, second, because it would be a violation of the statute of frauds and perjuries to permit one who has purchased by writing jointly with another to prove by parol that his co-purchaser has no interest in the purchase. The rule is well settled in Pennsylvania that an equitable title to land is within the statute of frauds: Murphy v. Hubert, 7 Barr 423. And it is equally well settled that a transfer from one tenant in common to another can only be by writing, and that the possession of the one is the possession of both: Galbreath v. Galbreath, 5 Watts 146. At the time when the action of covenant was commenced, as well as when the judgment was entered against Exline as between the parties to the agreement, Exline was a tenant in common as to one-half of the equitable interest in the land in dispute, and the judgment against him was unquestionably a lien upon this interest; but no case goes so far as to hold that a judgment obtained against one tenant in common, in an action of covenant brought on articles of agreement for the sale of land against two, is a lien upon the interest of the deceased obligor or covenantor. The rule would doubtless be otherwise as to joint tenants, as the entire interest or estate would pass to the survivor, and be bound by the lien of a judgment obtained against him alone; but the real estate of a deceased tenant in common, whether held by articles of agreement or by deed of conveyance, passes upon his death directly to his heirs or devisees, and cannot be encumbered by a judgment against another where neither the heir, devisee, or personal representative is made a party. The cases cited by the plaintiff in error do not sustain his position, that the judgment bound the interest of Moser as well as that of Exline. Love v. Jones, Day v. Lowrie, and Harbach v. Riley were all cases where the action was brought and the judgment had against the vendee; and they simply decide that a sale upon such a judgment passes to the purchaser the entire estate, legal and equitable; but in nothing that is said in either case is there warrant for the position here assumed.
As Mr. Barclay, the purchaser, represented the holder of the legal title, Ann Lehman, and as the judgment against Exline was a lien upon the one-half of the outstanding equity, a sale upon this judgment vested the entire title, legal and equitable, in the purchaser, to a moiety of the property sold; and, as to this moiety, the defendant has a perfect title; and, as to the other half, the equitable interest still remains in the heirs of Philip Moser, or the plaintiff who claims under them, with the right to demand *44a conveyance, or recover the possession of the undivided moiety, upon paying or offering to pay the one-half of the purchase-money, if this has not already been paid.
As the sale upon the judgment against Exline united the equitable interest in an undivided moiety of the estate with the legal title, it left the other moiety free from the one-half of the purchase-money, so that if Moser in his lifetime, or his heirs since his death, has paid upon this purchase five hundred dollars and its interest, the plaintiff is entitled to recover in this action the one undivided half of the land in dispute. Taking the amount recovered in the judgment against Exline as the true amount then due, it would seem that more than one-half had been paid, for the judgment is for a sum considerably less than the one-half of the purchase-money, and its interest from the date of'the contract, in 1818, to the rendition of the judgment in 1842; but, as this judgment is not conclusive between the parties to the present suit, as to the amount then due, the question is still open for inquiry; and, if it should be found upon another trial that Moser, or those claiming under him, had not paid the one-half of the purchase-money, a conditional verdict should be given in favour of the plaintiff for the one undivided moiety of the land, upon his paying to the defendant within such time as the jury should fix any residue of the one-half of the purchase-money, and interest, after deducting what has already been paid by Moser, the defendant, to be entitled to the money so' paid only upon conveying to the plaintiff the legal title to the one-half of the land. The conveyance should be made by the defendant, because the legal title passed to, the whole estate from Ann Lehman to Samuel M. Barclay, by virtue of the sheriff’s sale and the subsequent proceedings against the estate of Mr. Barclay by the estate of Mrs. Lehman; and being so in Mr. Barclay, it would enure to the benefit of his vendee, the defendant in this suit. If, however, the jury should find, as they probably will, upon a second trial, that Moser had paid his part of the purchase-money, a verdict in favour of the plaintiff for the undivided half of the tract is all that the case requires.
It is unnecessary to pass upon the assignments of error more particularly than we have already done; but, to prevent misconstruction, we will add that there is nothing in the view of the case we ’have taken, inconsistent with the decision of this Court in Mann’s Appeal, not yet reported. There we permitted the representatives of Ann Lehman to show that Abraham Lehman had no interest in the purchase-money due on the articles of agreement with Moser and Exline, although he was, on the face of the agreement, one of the vendors; but this was in accordance with the legal title which was in the name of Ann Lehman alone; here the proposition was to show, in direct contradiction to the written agreement, that Exline was not a purchaser, but a surety, and that too, *45to affect the title of the defendant, without proof that he had notice of any relation between the parties other than what appeared upon the face of the agreement. The difference between this case and Mann’s Appeal is manifest, and we’ only notice it to avoid the conjecture that we have overlooked our former decision.
There is nothing in the allegation that the plaintiff below is estopped from claiming title to the land in controversy,.under the heirs of Moser, because, as attorney for Ann Lehman’s estate, he recovered its value from the estate of Samuel M. Barclay, deceased.
Judgment reversed and venire de novo awarded.