The defendant was sued in an action of trespass to try title and recover damages, for certain lands described in the declaration. The plaintiff claimed the land under a purchase at sheriff’s sale, made by virtue of an execution against one McNair, and proved that McNair had purchased the land from James M. Calhoun, and had executed his notes and a mortgage on the premises to Calhoun, to secure the payment; that Calhoun foreclosed the mortgage by decree in chancery, and’ the land was sold by the Register in obedience to the decree and purchased by one King; that McNair applied to King to redeem the land under the statute (Clay’s Dig. 502) and paid him the, redemption money; but requested King to make the title to JM. McClanahan, the trustee for the wife of McNair, which was done to prevent the land from being liable to certain judgments which had been rendered against McNair, and which he protest*631ed be did not intend to pay; that King thereupon executed the-conveyance to said' McClanahan. Under these circumstances - the land was sold, and the Circuit Judge instructed the jury in. effect, that notwithstanding the deed from King to McClanahan; was made to defraud the creditors of McNair, still it operated to vest the legal title in McClanahan,, and left the equitable title only in McNair, which could not be sold under execution at law. This charge,.it is insisted by the plaintiff in error,,.is erroneous,, first, because the title of McNair was merely suspended by the operation of- the act allowing him-.- to redeem, and that when he • paid the money required to make the redemption, he was remitted to his original title derived from Calhoun; secondly, that if,' such is not the operation of the redemption, still McNair had, such title as was subject to sale under execution, namely,.a resulting trust, in his favor.
It is a proposition too well settled by ‘ the decisions of.' this court now to be controverted, that an equitable title to land cannot be sold under an execution at law, but resort must he had to equity for its sale, after exhausting the legal remedy.—Doe ex dem. Davis v. McKinney, 5 Ala. 719; Elmore & Willis v. Harris, 13 ib. 300; Hogan v. Smith, 16 ib. 600; Clay’s Digest. 350, § 31.
Was the interest of McNair legal or equitable 1 Suppose the deed to McClanahan were held void for fraud, where would the title then he 1 Most unquestionably in King. This shows that the alleged fraud in making the deed to McClanahan instead of' McNair, cannot have the effect of vesting the legal title in the latter. It is wholly unlike the case of a fraudulent- conveyance by a debtor of his estate to delay, hinder, or defraud creditors,. upon which the statute operates and declares void as to the creditors whose debts are delayed, &c. — Clay’s Dig. 254, § 2.. Here the legal title is in King,, who purchased under the decree of foreclosure, and who, but for the statute authorizing a redemption or re-purchase by McNair, would have taken an indefeasible title. It is too plain, we think, for argument, that after the mortgage has been regularly foreclosed, or a sale decreed by a proper proceeding in a court of equity, and the land is sold and a title executed to the purchaser by the direction of the Chancery Court, or in conformity to the decree, the title, which, the parties to the suit had, vests in the purchaser. The morí-*632gagor is thrown upon the statute to re-purchase, by paying the amounts thereby prescribed, and upon such payment, is entitled <to a re-conveyance. If the party against whom the statute authorizes the redemption, refuses to convey, a court of equity in a proper case will compel him to do so, and thus re-vest the mortgagor with the title. But we have seen no case which holds that -the payment of the money operates to vest any title at law in the absence of a deed under the circumstances here presented. This is not the case of the mortgagor paying the money due upon the mortgage to the mortgagee, or his assigns, whereby the mortgage becomes defeated and released after satisfaction enter-' ed according to the provisions of the statute. — Clay’s Dig. 156, 4 32. The right of redemption, so far as secured by the mortgage, is taken away and barred by the foreclosure, and can only bo assorted under the statute, and we see no more reason for holding that the payment by the original mortgagor shall re-vest ■the title without any conveyance, than if such payment had been ¡made by any one else entitled to redeem under the statute.
The counsel says this is a resulting trust in favor of McNair. Grant this proposition, still it by no means follows that it confers a legal right upon McNair. On the contrary, the fact that a trust does result from the payment and the execution of the deed -to McClanahan, is conclusive to show that the right of McNair is equitable. If the conveyance to McClanahan was made in fraud of the rights of McNair’s creditors, a court of equity would most unquestionably imply a trust in favor of McNair, so as to subject it for the payment of his debts. Whether this would be done in favor of McNair himself, the claims of creditors aside, is another question, and one upon which wo are not called upon to express an opinion. It is clear, we think, that if the creditors of McNair would subject his interest, they must resort to a court of equity, which alone can enforce the trust for their benefit.
The cases in Now York, which militate against this view, arose (under statutes very different from ours, (1 Rev. Stat., ed. of 1829, 727,) and cannot therefore bo regarded as authorities in point. There is certainly as strong reason for holding a resulting trust beyond the reach of legal process, as an equity conferred by bond for title. The statute makes no distinction between equitable titles, whether by bond or by parol. Whether *633•the trust is expressly declared in writing or is left to bo implied ‘from the nature of the transaction, so long as it confers but an equity, that equity cannot be sold under legal process. The ease of Doe ex dem. Davis v. McKinney, supra, we think is decisive of this case, and aside from that decision, were the question now for the first time presented, we should feel constrained to hold that McNair had not such interest under the facts .pre- • sented as could be sold under execution at law.
■Judgment affirmed.