*152The opinion of the court was delivered, February 13th 1873, by
Siiarswood, J.Upon a careful examination of the testimony I am unable to discover anything which varies the agreement in writing set forth as the ground of the bill. The evidence before the examiner was given without objection, and was entirely proper as explaining the relation between the parties, and the circumstances which led to the agreement. These facts are always admissible and may be considered in the construction of a written agreement. It appears that the verbal understanding originally was, that Herst was to have an interest of one-third in the premises, if purchased by Blaylock, but with his acquiescence that was changed, and the final arrangement was as expressed in the writing, that if Blaylock became the purchaser at the sheriff’s sale, he was to hold the property in trust to sell and after paying encumbrances, to apply the proceeds to discharge the debts of the firm of P. Herst & Samuel, and to divide the surplus, if any, equally between Blaylock and Samuel. It is in evidence, and is not a matter in dispute, that all the debts of the firm of P. Herst & Samuel have been settled and paid, so that Herst has no longer any interest in the controversy. It clearly appeal's also, that Herst and Samuel had performed their part of the contract by procuring the consent of David Samuel to accept the bond and mortgage of Blaylock for his judgment. It is true that Blaylock did not covenant to become the purchaser, but it is equally true, that if he did purchase, he could not throw aside the obligations of the agreement by paying David Samuel in cash, instead of giving his bond and mortgage. If he bought he must hold the property upon the trust upon which he had agreed to hold it in that event.
The master reports that Blaylock was in fact the purchaser, though in the name of Zeigler, to whom he lent or furnished the money to pay for it, and we think that he is fully sustained in that finding by the evidence, for the reasons he has stated. The testimony of Blaylock and Zeigler themselves, with the circumstances as detailed by other witnesses, lead the mind to this conclusion, and overcome the answers. This being so, Zeigler’s legal title is equally affected and bound by the trust. Blaylock had no right to substitute another person as trustee without the consent of Samuel. So much, therefore, of the decree below as declared the trust to exist and ordered Zeigler to execute a conveyance in fee to Blaylock to hold in trust, as expressed in the agreement, was certainly right. But we think it should have stopped there. There is no right or equity in Samuel to be paid one-half the net income. Until the sale takes place the rents are applicable in the first instance to the reimbursement of the amount advanced by Blaylock. When the sale takes place Blaylock must, of course, account for the rents. The bill does not pray for an account, nor for a sale, and the prayer that a conveyance should at once be *153made to Samuel of a moiety of tbe property, subject to tbe amount of $10,800 paid by Blaylock and tbe prior encumbrances, is clearly inadmissible, because its effect would be to destroy tbe power of sale and abrogate tbe very agreement wbicb is made tbe basis of tbe relief prayed in tbe bill.
Tbe only equity wbicb tbe complainant bas upon tbe bill was to enforce tbe agreement by a decree that tbe legal title should be transferred.to and vested in tbe trustee named in it.
Tbe decree below is reversed, and now it is ordered and decreed, that George W. Zeigler shall execute a conveyance in fee of the premises described in the bill to Lewis Blaylock, in trust, as expressed in tbe written agreement set forth in tbe bill, and that be be enjoined from conveying or encumbering said premises, and from executing any deed therefor other than is herein ordered; that tbe said trustee shall not sell the premises at private sale without tbe consent and approbation of tbe said Samuel in writing; nor at public sale without reasonable notice thereof beforehand, to be given to him, and that the parties to this appeal shall respectively pay their own costs.