Lessee of Smith et al. v. McCann. terpretation of the exceptional clause in the act. We there fore sanction the construction adopted in the land office. The Circuit Court overruled the demurrer of the defendant to the bill, and made a decree in conformity to the prayer of the bill. This is error. The decree of the Circuit Court is reversed, and the cause is remanded to the Circuit Court, with directions to dismiss the bill, with costs. LESSEE OF ROBERT W. SMITH AND CAREY, W. BUTT, PLAINTIFF IN ERROR, V. WILLIAM MCCANN. In Maryland, the distinction between common law and equity, as known to the English law, has been constantly preserved in its system of jurisprudence. The statute of George the Second which made lands in the American colonies liable to be sold under a fieri facias issued upon a judgment in a court of common law, did not interfere with this distinction, and under it a legal estate only and not an equitable interest could be seized under a fi. fa. In 1810, an act of Assembly was passed making equitable interests subject to this process. But the purchaser at the sale of an equitable interest under this process only buys the interest which the debtor had, and thus becomes the owner of an equitable and not a legal estate. It is not, however, every legal interest that is made liable to sale on a fi. fa. The debtor must have a beneficial interest in the property, and not a barren legal title held in trust. In the action of ejectment, in Maryland, the lessor of the plaintiff must show a legal title in himself to the land which he claims, and the right of possession under it, at the time of the demise laid in the declaration and at the time of the trial. He cannot support the action upon an equitable title, however clear and indisputable it may be, but must seek his remedy in chancery. Where there was a deed of land to a debtor in trust which conveyed to him a naked legal title, he took under it no interest that could be seized and sold by the marshal upon a fi. fa.; and the purchaser at such sale could not maintain an action of ejectment under the marshal's deed. But the plaintiff in the ejectment suit offered evidence to prove that the trusts in the deed were fraudulent, and that the debtor purchased the land and procured the deed in this form in order to hinder and defraud his creditors. And this proof was offered to show that the debtor had a beneficial interest in the property, liable to be seized and sold for the payment of his debts Lessee of Smith et al. v. McCann. This parol evidence could not be introduced to enlarge or change the legal estate of the grantee against the plain words of the instrument. If the evidence were admissible, the fraudulent character of the trusts, as against his creditors, could not enlarge his legal interest beyond the terms of the deed. Although the debtor may have paid the purchase money, that circumstance did not establish a resulting trust in his favor. The lessors of the plaintiff had a plain and ample remedy in chancery, where all the parties interested could be brought before the court. The instruction of the court below was therefore correct, that the plaintiff could not recover in the action of ejectment. THIS case was brought up by writ of error from the Circuit Court of the United States for the district of Maryland. The facts are stated in the opinion of the court. It was argued by Mr. Davis and Mr. F. L. Smith for the plaintiffs in error, and Mr. Campbell and Mr. Malcolm for the defendants. The points on behalf of the plaintiffs in error were the following. The counsel contended that the instruction given by the court below was erroneous, and cited these authorities: McMechen v. Marman, 8 G. and J., 57, 73, 74, 75. Jackson v. Scott, 18 Johnson's R., 94. Jackson ex dem. Cary v. Parker, 9 Cowen R., 85. Jackson v. Bush, 10 John., 223. 84. In ejectment against a defendant in an execution, or those claiming under him, the purchaser of land at a sheriff's sale, having complied with the terms of sale, is entitled, as plaintiff, to recover the possession against said defendant or his alience, and the defendant will not be permitted to controvert the title by showing it to be defective, or by setting up a better outstanding title in a third person. Remington v. Linthicum. Lessee of Smith et al. v. McCann. McMechen v. Marman. Lessee of Cooper v. Galbraith, 3 Wash. Cir. Ct. R., 546, 550. Jackson v. Chase, 2 John. C. L. R., 82. Jackson v. Pierce, Id., 221. Jackson v. Deye, 3 John. C. L. R., 422. Bayard v. Colfax et al., Cox's Digest S. C. U. S., 272, sec. 41. Jackson v. Davis, 18 John. C. L. R., 7. Jackson v. Van Slyck, 8 John. C. L. R., 486. The trusts in the deed from Brown and wife to Richard D. Fenby being fraudulent and void, the deed passed an absolute titie to Fenby of the land in controversy. Bacon's Abr., vol. 2, Bouvier's Ed., 298, 305. Hughes v. Edwards, 9 Wheat., 493. That the terms of trust, in the deed from Brown and wife to Fenby, not being established by any evidence, aliunde, the said trust can be considered as existing, if at all, only from the date of the deed. Hill on Trustees, top pp. 86, 87, note 2. The counsel for the defendant in error made the following points: 1. This action of ejectment being brought in Maryland, and the common law in that State being unchanged, the plaintiff must show, in evidence, a legal title to enable him to recover. The Maryland statute, (1810, ch. 160,) which authorizes a sale on execution at law, of equitable estates, does not change an equitable into a legal title, and the purchaser must assert his rights in their appropriate form. Carroll v. Norwood, 5 H. and J., 155. Wilson v. Inloes, 11 Gill and Johnson, 351. Hammond v. Inloes, 4 Maryland, 138. 2. To show themselves seized of a legal title, the plaintiffs in error give in evidence the deed from Brown and wife to Ferby, conveying the property which was levied on under the judgment against Fenby, and sold to the plaintiff's lessor. Lessee of Smith et al. v. McCann. This deed, (Rec. 25,) which conveyed the legal title to Fenby, conveyed it to him in trust for his wife and children, and gave him but a dry legal title, with no beneficial interest in himself, and so vested nothing in him which could be attached or taken in execution upon process against him. Houston v. Newland, 7 Gill and Johnson, 493. Aware of this insuperable difficulty, the plaintiffs in error seek, by a charge of fraud against the deed, to extinguish the trust, and thus convert the legal ownership of Fenby into a beneficial one. But if the deed be void against creditors, by reason of the trust for Fenby's wife and children, the statute of Elizabeth avoids it in toto, and the plaintiffs in error cannot, at the same time, set it up and destroy it. If the deed be wholly void, for fraud or any other cause, then the foundation of the plaintiff's title fails, for without it Fenby had no estate. If it be relied on as the source of Fenby's title, it must he taken as it is. Mackie v. Cairns, Hopkins, 405. 5 Cowen, 580. 5 Shepley, 369. 4 Yerger, 164. 2 Sanford C. Rep., 630, Goodhue v. Berry. 6 Gill and Johnson, 231, State v. Bank of Maryland. Mr. Chief Justice TANEY delivered the opinion of the court. This case comes up upon a writ of error to revise the judgment of the Circuit Court for the district of Maryland, in au action of ejectment brought by the plaintiff in error against the defendant to recover certain lands lying in that State. The plaintiff, in order to show title to the land claimed, of fered in evidence, that Smith and Butt, lessors of the plaintiff, having sold cotton to Fenby & Brother, of Baltimore, in 1857, drew on them for the sum due, and their bills were protested to the amount of $13,708. They thereupon brought suit on the 3d of June, 1857, and recovered judgment in the Circuit Court on the 6th of April, 1858; and on the 10th of the same month they issued a fieri facias, which was on the same day levied by the marshal on the land in controversy; and after Lessee of Smith et al. v. Mc Carn. wards, on the 2d of September next following, sold at public auction. At this sale the lessors of the plaintiff were the purchasers, and received from the marshal a deed in due form. The plaintiff further proved that a certain Robert D. Brown was seized in fee of the land at the times hereinafter mentioned, and read in evidence a deed from him and his wife, dated April 6th, 1857, whereby they conveyed it to Richard D. Fenby, one of the defendants, against whom the judgment was afterwards obtained, stating at the time he offered it in evidence, that he impeached the trusts in the deed for fraud, and intended to show such trusts to be void against him. The deed purports to be in consideration of $7,800.50, and recited that the land was purchased by Fenby, from Brown, on the 13th of March, 1852, and then grants to Fenby, "as trustee," the lands in question in fee simple, in "trust" for the sole and separate benefit of Jane Feuby, the wife of the said Richard D. Fenby, for and during the term of her natural life, in all respects as if she was a feine soie, free from all liability for the debts of her husband, and from and immediately after the death of the said Jane Fenby, in trust for such child or children, and descendants of a deceased child or children of the said Jane, as she may leave living at the time of her death. Such child, children, and descendants, to take per stirpes. The deed gives authority to Fenby to sell and dispose of any part of the trust property, and to invest the proceeds in safe securities upon the same trusts. The plaintiff further offered evidence tending to prove that Fenby was hopelessly insolvent when this deed was made, and that he was in possession of the land from the time he purchased it in 1852. The defendant, McCann, then read in evidence a deed from Fenby to him, dated March 23d, 1858, purporting to be made in execution of the power conferred by the trust deed, and conveying the property in fee simple in consideration of twenty-two thousand dollars. And the plaintiff thereupon offered evidence tending to show that this deed was intended to cover the previous fraud of the one to Fenby; that McCann was privy to this design, |