ON REHEARING.
On the 12th of February, 1898, a rehearing was allowed on the motion of the Roaring Creek Coal & Coke Company. On June 8th, 1898, the case was reheard and submitted.
The first point relied on by the petitioner to entitle it to a rehearing of the cause was that the decision had been based on an appeal obtained by the administrator with the will annexed of Patrick O’Connor, deceased, who, it was claimed, had no standing in court to raise the question considered and decided. It was alleged in the bill, and undenied in the answer, that the plaintiff, Patrick O’Con-nor, was at the time of filing said bill over ninety years of age, and had no home or means of support, his only property being the two hundred and five acre tract mentioned in the bill. At the time the decree was rendered in the circuit court, whichwas appealed from, said Patrick O’Con-nor was still in life. After his death the appellant was duly appointed, and gave bond, as his administrator with the will annexed. When John L. Hechmer took upon himself the duties of administrator, he represented an estate with a considerable indebtedness existing against it, and the only source to which he could look for its satisfaction was the proceeds of said land which had been contracted *370to be sold by bis testator; and, while the circuit court held that the title had been obtained from said testator by fraud, it further held that the land was then in the hands of the Roaring- Creek Company, an innocent purchaser, and the estate of Patrick O’Connor was only entitled to the proceeds arising- from the transfer of the fradulent title acquired from J. P. O’Connor through O. C. Womelsdorff. Althoug-h J. P. O’Connor committed a fraud on his uncle, it is nevertheless true that Patrick O’Connor contracted to sell him the land, and when that contract was vitiated by fraud he contracted to sell it to L. H. Keenan. What effect did this contract have upon the estate? The authorities say that, when land is articled to be sold, itbecomes personalty. On this question Story’s Equity Jurisprudence (section 1312) says: “Anotherclassof cases illustrating the doctrine of implied trusts is that which embraces what is commonly called the‘equitable conversion of property.’ By this is meant an implied or equitable change of property from real to personal, or from personal to real, so that each is considered transferable, transmissible, and descendible according to its new character, as it arrises out of the contracts or other acts and intentions of the parties. This change is a mere consequence of the common doctrine of courts of equity, that, where things are agreed to be done, they are to be treated for many purposes as if they were actually done. Thus, as we have alreadjr had occasion to consider, where a contract is made for the sale of land, the vendor is, in equity, immediately deemed a trustee for the veifdee of the real estate., and the vendee is deemed a trustee for the vendor of the purchase money. Under such circumstances, the vendee is treated as the owner of the land, and it is devisable and decendable as his real estate. On the other hand, the money is treated as personal estate of the vendor, and is subject to like modes of disposition by him as other personalty, and is distributable in the same manner on his death. So, land articled to be sold and turned into money is reputed money, and money articled or bequeathed to be invested is ordinarily deemed to be land.” Yet the Roaring Creek Coal & Coke Company, which claims to have been an innocent purchaser indirectly from Patrick O’Connor, in its petition for a *371rehearing, insists that the proceeds of this tract of land are still realty, and for that reason the administrator had no right to apply for or obtain this appeal. When the administrator assumed his trust, he took the estate as he then found it. Debts existing against it, as appears from the testimony and the will, if we may look to it for that purpose, and the proceeds of this land were all he had to look to for their liquidation. Where the personal estate of a decedent is insufficient for the payment of his debts, Code, c. 86, s. 7, allows the administrator to prosecute a suit in equity to subject the thereat estate to the payment thereof. When this administrator looked to the records, he found a decree of the circuit court of Randolph County, holding that the deed executed by Patrick O’Connor to the defendant, dated June 1, 1893, was fraudulent and void as to his testator, Patrick O’Connor, but that the Roaring Creek Coal & Coke Company was an innocent purchaser for value without notice, and the plaintiff was not entitled to have the deeds from himself to J. P. O’Connor, and from J. P. O’Connor to O. C. Womelsdorff and from Womelsdorff to said coal and coke company, set aside, and the title and possession of said land restored to him, but that said company was entitled to have its title and possession through said deeds confirmed to it. I have endeavored, in the opinion above quoted, to show that said coal and coke company was a pendente lite purchaser, and for that reason bound by the result of the pending litigation, and for the same reason could not be properly held an innocent purchaser without notice; and I refer to and adopt said former opinion, so far as it discusses said question, and the conclusion then reached, as well. Said administrator then found said land in the possession of said coal and coke company under a fraudulent conveyance confirmed by an erroneous decree. What was he to do? A review of the facts in the light of law convinced him at once that the legal title was not in said company. The decree before him held that the deed executed by 'Patrick O’Connor to the defendant J. P. O’Connor was fraudulent and void as to the plaintiff, As a consequence, the deed from J. P. O’Connor to Womelsdorff was void, as J. P. O’Connor could not convey the title he did not possess. *372Counsel for said company in their petition for rehearing-, and argument for the support of the same contend that the administrator with the will annexed has no standing- to prosecute this appeal in his own name to set aside deeds to real estate, and reinvest the title in the heirs of the devisee of the defendant. Now, in the first place, no title has ever vested in said coal and coke company, for the reason that it was manifestly fiendente lite purchaser, and the title of its vendor has been held to be void as a result of the litigation pending-at the time it became a purchaser. Now, if this appeal should be successfully prosecuted by the administrator, the result would only be to remove the cloud from the title to the'land in controversy, by holding the title claimed by said company to be void as a pendente lite purchaser, the circuit court, as I have said, having held the title of John P. O’Connor fraudulent and void; and for that reason he could confer no valid title upon Womelsdorff, under whom the said company claims. That would leave the land articled to be sold to L. H. Keenan under the agreement made between Patrick O’Connor and said Keenan dated June 23, 1893, which agreement was recorded on the next day, for a consideration of ten dollars per acre.
Attention is called in the brief of counsel for said company on a rehearing to an error committed in stating a fact, to wit, as to said Keenan endeavoring to sell said land to O. C. Womelsdorff after the date of the above mentioned agreement. This was an error committed by inadvertence, and the inference drawn from it was also erroneous; but it is immaterial, and does not affect the case. • This land was articled to be sold, and for that reason must be regarded as personalty, and the administrator surely has a right to clear away these false and fraudulent titles which incumber the estate which it is his duty to administer. His success in this case will not have the effect of restoring the property to the heirs at law, but will give it to the personal representative to be administered. I am therefore of opinion that the administrator has the right to prosecute this appeal.
Having expressed my views as to said company being a pendente lile purchaser in the opinion above quoted, Iadopt said opinion, except so far as herein corrected, and on this *373rehearing hold that said Roaring- Creek Coal & Coke Company was & pendente lite purchaser, and bound by the result of the litigation then pending between said parties in said suit, and was not, therefore, an innocent purchaser. The decree complained of must therefore be reversed, and the cause remanded, with costs.