The judgment of the Supreme Court was entered November 6th 1876,
Per Curiam. —
The only question in this case is whether A. B. Bair had an equitable interest which could merge in the legal estate when acquired, and could in the meanwhile be bound by the lien *488of a judgment.. He bought at a public auction, and afterwards entered into possession, whether with the assent of the vendors is now not material, as they have recognised his purchase by malting a deed founded upon it. It is argued- that no estate passed to Bair, because no writing was signed to evidence the sale to him. This is true only in degree, not absolutely. Under- the statute against frauds and perjuries an estate at the will of the vendors passed to him; and his possession taken under it could only be disturbed by the termination of their will. During the existence of this presumptive estate the judgment was entered and became a lien on his interest, whatever it was. When the vendors recognised this estate and possession, by a final conveyance under the contract, they waived the operation of the Statute of Frauds and gave their assent to the merger of the determinable estate in the fee. The principle of this will be seen in the cases of Christy v. Brien, 2 Harris 248 ; Houser v. Lamont, 5 P. F. Smith 312, and later cases recognising them. A vendor is not bound to set up the Statute of Frauds made for his protection, for in such case neither fraud nor perjury need be apprehended. There was not, therefore, anything to prevent the estate, acquired subject to their will, from merging in the fee when they chose to recognise it. They had it in their power to determine it; and protect their interest in that way; or to secure their purchase-money by mortgage or immediate judgment, when recognising it. They chose to rest upon their bond without entering judgment, and thereby lost what they might have retained; but . this was their own negligence. Pickersgill’s' judgment was a lien on the defeasible estate, and when the estate, was enlarged it attached to the fee, subject to the payment of the purchase-money, had the vendors retained their grasp upon it. Not doing this the entire fee became subject to the lien of the prior judgment, and it became entitled to the proceeds of sale.
Decree affirmed with costs to be paid by appellants and appeal dismissed.