The opinion of the court was delivered' by
Is ham, J.To sustain this action, it is necessary for the plaintiffs to prove in themselves the legal title, and right of possession to the premises in question, and that the defendants wrongfully withheld the same from them. For this purpose, the plaintiffs gave in evidence the record of a judgment in their favor against James Long, upon which execution was duly issued and levied upon the land, for which this suit is brought. No objections have been urged against the validity of the judgment, or the levy of the execution. We are therefore to treat them as valid, and sufficient to transfer to the plaintiffs, whatever right and interest James Long had in the premises, at the time of the levy.
It appears from the case, that the premises were owned by Messrs. Brickett & Thayer, and were conveyed by them to John Long, on the first day of April, 1842, and that James Long never had any record title, or deed of the premises. It is insisted, however, that this purchase from Brickett & Thayer, was in reality made by James Long, and that the purchase money was paid by him from his own money, and that the deed was executed to John Long, for the purpose of keeping the property from the creditors of James Long, against whom the plaintiffs have recovered this judgment. Upon this question, the parties respectively introduced their evi*568deuce for the consideration of the jury. It is not within the province of this court to examine the evidence, which is detailed in the exceptions, for the purpose of seeing whether the jury have come to a just conclusion. Our investigation is condoned to the legal questions arising in the case, and to the inquiry whether the case was properly submitted to their consideration.
The principle is clearly correct, that if a conveyance of land is made to one person, and the purchase money is paid by another, a resulting trust is thereby created, and the person who has the legal title, will hold the same for the use and benefit of the person paying the money; and if the transaction was had with fraudulent intent, the property will be held subject to be taken by the creditors of the person who paid the money for the land. If James Long paid the money, for the land conveyed to John Long, these plaintiffs, as his creditors, can in some way enforce their claim against the property so conveyed and purchased.
The jury, under the charge of the court, have found that there was no fraud in fact, and that the deed to John Long was not executed to keep the property from the creditors of James Long. Of the charge of the court, the plaintiffs have no reason to complain. It gave them the full benefit of every fraudulent consideration urged in the case, and the finding of the jury is conclusive.
The exceptions detailed much of the testimony, on the question whether the purchase money or any portion of it was paid by, and belonged to, James Long; and it was insisted, that the money realized on the sale of lot No. 15, over and above the amount paid by John Long, was the money of James Long, and that that amount, having been paid as part of the purchase money, gave James Long an interest in the premises to that extent. The court charged the jury, that if the deed of lot No. 15, conveyed to John Long by the request of James Long, was understood and treated by them as a security merely, for the money paid by John Long, on the Cummings notes, and he sold the same for a greater amount, the surplus would belong to James Long; but if, as between James and John Long, the conveyance was understood and treated as an absolute conveyance, and James Long had at the time sufficient to pay all his debts, and no fraudulent intent existed, the conveyance would not be fraudulent or void as to the subsequent creditors of James Long, even if the consideration was not to the full value of the *569property. In considering the propriety of the charge, we are to bearin mind, that as between James and. John Long, the relation of parent and child existed, and that the relation of itself is what is termed a good consideration. The jury under the charge, have found that the deed to John Long was intended and treated as an absolute conveyance, and that James Long, at the time of the conveyance, was possessed of other property sufficient to pay his debts, and that no fraud was intended. Under these facts, the case falls within the principle decided by this court, in the case of Brackett et al. v. Waite et al., 4 Vt. 389. In that case the court remarked, “That “ where one, in prosperous circumstances, and not much embarrass- “ ed with debts, in consideration of natural love and affection, makes “ a voluntary conveyance of a portion of his estate, unaccompanied “ by fraud, and retaining sufficient to pay his debts; such eonvey- “ anee is good and valid, as against a subsequent mortgage given to “ secure a debt existing previous to such voluntary conveyance; “ and that such conveyance will not be defeated, by subsequent “ events rendering the grantor insolvent.” The application of this principle to the facts as found by the jury in this case, leads to the conclusion, that no trust was created in favor of James Long,, in the conveyance to John Long of'the property, on which the plaintiffs have levied their execution. We see no error, therefore, in any of the matters, on which exceptions have been taken.
There is another objection, which is regarded as fetal to- the plaintiffs’ recovery in this case. James Long, against whom the judgment was rendered, had not the legal title to the premises up,on which the execution was levied. That title was in Brickett &. .Thayer, and passed from them to John Long. If James Long had paid the purchase money in whole or in part, Ms right and interest in the premises was equitable and not legal. The- legal title was .in John Long, and the levy of the execution ag'jrinst James Long, would only give the plaintiffs his equitable rights; and to recover that, the action of ejectment cannot be sustained; for at law, the legal title will prevail over the equitable interest. The remedy of the plaintiffs is in equity. For tMs purpose 'the attachment and levy of the execution, laid a proper foundation for a court of equity, on a-creditor’s bill, to interpose and decree a conveyance of the *570property to the creditor, whose execution is thus extended; and this, we think, is the only mode of relief.
The judgment of the County Court must be affirmed.