On the fullest reflection I cannot agree with the majority of the Court.
Rhoads had purchased by articles of agreement, and had paid $800, and had an equitable title to the property for so much. This equitable interest was the subject of levy and sale, and on it the judgment of Stevens attached, and no more. The legal title, and the residue of equitable interest, remained in Johnston, and on this Stevens had no lien. Dearth paid the balance of the purchase money .to Johnston, and got the legal title. It matters not that it went through Rhoads — it was in him but an instant. Though the deed from Johnston to Rhoads had been executed *113some weeks, it was not delivered until 10th January, 1820; and that instant Rhoads executed a deed to Dearth, who had paid the money to Johnston for him. By a parol agreement or a deed of defeasance, this deed from Rhoads to Dearth was in fact a mortgage: this mortgage was sued, and Dearth purchased the land. He claims to stand in Johnston's place — to hold the legal title and balance of purchase money; and offers to convey to the other party, on being paid what was due to Johnston by Rhoads.
It is well settled, that the interest of Johnston could have been sold at private sale, or levied on and sold by the sheriff; and in either case the purchaser would have had all his rights, and been subject to the right of Rhoads.
Where property passes through a man, without his having paid for it, no right vests in him — it is never his in contemplation of law, 4 Mass. 566; 14 Mass. 351; 15 Johns. 458, and the cases there cited.
But suppose it did vest in him; it remained there but an instant, and was sold to Dearth. I never liked the case of Calhoun v. Snyder, in 6 Binn. 147, but it has been so long decided, so often recognized, and so much property is held under it, that we cannot disturb it; and by that case, the judgment of Stevens did not attach on that after-purchased interest, unless it was levied on while in Rhoads. It was not levied on, and the judgment of Stevens only bound, as before, the equitable interest of Rhoads, i. e. to the amount of $800, and never bound the remaining equity, nor the' legal title. Dearth has that legal title, and that residue of equitable interest.
As a question of sheer law, the owner of the legal title 'is safe, he cannot be disturbed. If the plaintiff asks equity, he must do equity. Suppose Dearth had never interfered; Johnston would have obtained possession, and held against Rhoads, or whoever purchased the interest of Rhoads, until the residue of the purchase money was paid. Why shall not Dearth, who paid Johnston all that was due, and has all the right which Johnston had, also hold till he is paid?
Could Rhoads ever have compelled Dearth to give up possession till he paid him? or could he have compelled Dearth to repay him what he had already paid? and why shall the man, who, with full knowledge of all the circumstances, has purchased the interest of Rhoads, do what Rhoads could not have done?
When a man, having good title, sells by articles of agreement, receives part of the money, and is ready and willing to make a good title to his vendee, on receiving the residue of the purchase money, it is not in the power of that vendee, or any person claiming through him, to rescind the contract — refuse to comply on *114hi's part, and compel the vendor to pay back what he has received, and keep the land ; and yet that is, in effect, what is asked in this case.
Judgment reversed, and judgment for the plaintiff.