The first question to be disposed of in this case, is the demurrer to the bill. It is claimed that the demurrer should have been sustained as to the defendant William Fluharty, upon the ground of uncertainty and want of mutuality in the contract, as alleged and set out in the bill; while on the other hand, it was insisted, on behalf of the appellee, that such a case was shown, either as an oral contract, with part performance, or as a declared or resulting trust, as would require a court of equity to enforce it.
It is not deemed essential to enter upon an inquiry as to which class the present case properly belongs. For whether it be assigned to the one or the other, the allegations of the bill, if true, furnish a case that a court of equity, it seems to me, would not hesitate to enforce, by compelling a conveyance, by the appellant to the appellee, of the property in controversy.
The question then arises, are the allegations of the bill sustained ? It seems to me they are, in every material respect, and that the testimony in the cause fully sustains the appellee’s version of the transaction.
In the first place it is evident that the relation subsisting between the appellant and appellee, after the sale of the lot in question under the decree, at the suit of Beatty’s creditors, was not that of landlord and tenant The evidence and circumstances forbid that, and it is not so claimed by the appellant.
In the next place it is proved explicitly by James O. Watson, at the time Beatty paid the last of the purchase money, that he or his son was to have a deed for the property upon the payment to Fluharty of a certain sum then unpaid, and that he (Watson) prepared a writing to that effect, and gave *529it to Fluharty, which he was to sign, when' such .amount was paid to him. But Watson is, silent as to the amount that was to be settled by Beatty on account of the failure of his memory.
Fluharty and Beatty each testified in his own behalf. Fluharty states that Beatty was to pay, in addition to the 100 dollars which he (Fluharty) had paid of the purchase money on the lot, the further sum of 232 dollars, which he claimed Beatty owed him for a lot of cattle, purchased some years before the sale of the lot in controversy. This is denied by Beatty, who swears that he was to have a deed, Upon the payment of the purchase money on the lot; and further, that he does not owe, and is not liable to pay the 232 dollars. Fluharty is not supported by other testimony; while Beaty is sustained by the witness Glendenning. It is not, therefore, made to appear satisfactorily, that the 232 dollars was any part of, or in any wise connected with the purchase of the lot, or that Beatty ought, in fact, to pay it. It was argued that Beatty ought not to be entertained in a court of equity, because the transaction between him and Fluharty is shown to be a fraudulent arrangement to cover the former’s property in fraud of his creditors. Nothing, it appears to me, is disclosed by the record to sustain the proposition. It is not claimed that the property sold for less than its value, on account of the arrangement between Fluharty and Beatty, or that the creditors of the latter did not receive the benefit of the proceeds of the same. Nor does it appear that the creditors of Beatty were in any manner injured thereby, or that they were ever heard to complain of the transaction. And it is not perceived how the fact of Beatty’s purchasing in the property, improving and enhancing its value, and claiming it as his own, without any attempt to conceal it from his creditors, could be to their prejudice, nor upon what principle Fluharty could be heard to make such objection here.
The remaining objection urged against the decree is, that Fluharty is required to convey the property in dispute to *530Beatty without requiring, as a condition precedent, the payment of the 100 dollars and the interest still due from the latter on the purchase money.
It cannot be doubted that the circuit court might very properly have done so, but as the debt is made entirely secure and is a paramount lien on the property, and as it was once tendered to and refused by Fluharty, and might be again refused if tendered, I do not think the objection to the form of the decree in this respect is sufficient to require Reversal,
TTpon the whole, I think the decree complained of ought to be affirmed, with costs and damages.
The remaining members- of the court concurred.Decree aeeirmed.