Tompkins, Judge,
delivered the opinion of the court.
Hunter commenced his suit in chancery against Galla-her, McCabe, and one Haverstick. Haverstick failing to answer, the bill as’against him was taken as confessed, and the circuit court entered up. a decree against Galla-her and McCabe, on the bill, answer, and evidence given in the case; and to reverse that decree this appeal is prosecuted.
The complainant states in his bill, that some time in the year 1825, one David Gallaher died possessed of a certain tract of land in said county of Washington, being intestate, and leaving a widow and several children; and that on or about the 21st day of February, in,the year 1835, James Gallaher, the defendant, one of the heirs of the said David, by writing, under his hand and seal, acknowledged that he had sold to Jacob Haverstick all his interest in the said tract of land, which is described in said writing as the land on which said McCabe then ■lived; and that afterwards,(to wit, on the 6th July, 1835,) said Haverstick sold and transferred all the interest he had acquired in said land to said Hunter; and that after the sale by James Gallaher, as aforesaid, to said Haver-*509stick, he had, on the 21st March, 1835, by his deed sold to said McCabe the same-land sold by him, as aforesaid, to Haverstick. The bill further states, that at the time he purchased, and also before he had paid the consideration money, McCabe had notice of the sale by Gallaher to-Haverstick. The answer of James Gallaher denies that he gave McCabe notice of the sale by him to Haverstick-The answer of McCabe denies that he had any notice of the sale by James Gallaher to Haverstick before he had. purchased the land from James Gallaher.
GalIah6r diof laud^a widow and several chil-^"five of the °W who6 were of age, sold ’a"d t0 °ne ¿hereupon"took One the children nou>f age, atThe of Ibis sale, about four-years age^anTre^eivId: from his elder brother, who had above mentioned-bargain, his port'®11 of thepur-expressedwerbal-. ly his acquies-in the saIe:-cured a titlo bond-f°r bis interest in ^ conveyed shortly after to complainant,, aftMthis^ conveyance to H., had-tookflom‘,aines* H^íhatHun-ter,, the assignee ofH., had no a court'of'equity, as his title bond from James gave Cabe^s'posses-son, and should at least put him McCabe’s title., The equities of Cabe^ing,1^0" least, equal’, the legal tide of vai]!.6 nmt pre"
*509Geo., Gallaher, a witness, states that in the year 1830,his-mother and five of the children of his father, then deceased,, which were of age, agreed to sell the land on which his. father died; that McCabe became the purchaser; and: that he, George, being then of lawful age, became agent to pay their dues t-o the children as they severally became of age.. After the sale of the land by the widow and the children, then of competent age, to McCabe, in 1-830,he states that James and John had arrived at years of ty, and had received from him their pay for their interest in, the land, and appeared satisfied.. This testimony of George Gallaher was taken in July, 1837, and the bond of James to Haverstick. was dated in February ding,, and the deed; to McCabe in March, about four weeks later than the bond to Haverstick. From the testimony of Rey burn, another witness, it appears that James ceived from his brotherGeorge amare in part pay for his interest in-this land, in the spring of 1834; and. George testifies that James was then of lawful age, and by receiving his pay and- expressing his satisfaction at the sale, he may be said to have confirmed it verbally. The statute of fraud- is not set up here, and indeed there is no person to set it up. James Gallaher does not contest the claim of McCabe, but is co-defendant, and is desirous to establish the claim of McCabe; and neither Haverstick nor Hunter (his assignee), can claim any favor in. a court equity. Five years-before the sale by James to stick, of his individual interest, George and the children then competent to convey, had joined with their mother in a sale to McCabe, and had received pay for the whole land; one year before the said sale to Haverstick,. James had come of age, and received his pay from George. does not appear that the deed from the widow and the children, then of lawful age, had been recorded, but the bond of James to Haverstick shows that Haverstick notice of McCabe-’'s occupancy of the land for such a length of time as ought to have put on foot an inquiry as *510i0 McCabe’s claim. McCabe took a deed frdm James to secure his title to the land which, five years before, he' had bought from the widow and children, then of age, and for which he had paid the purchase money, and for his interest in which James had, one year before, receiv-et| his portion of the purchase money, and the ^ale of which he had verbally confirmed. McCabe recorded immediately the deed from James to himself, but the bond from James to Haverstick had not been recorded. Tes-C"timony was given to affect -McCabe with notice of the sale by James to him. It does not seem to me to bema-terial in this case; for even if McCabe were proved to information of the sale, yet Haverstick equally had notice of the sale of the whole tract to McCabe five years before.
The ducuit court, then, in my opinion, committed error in decreeing the land to Hunter on the testimony there Its decree ought, then, in my opinion, to be reversed, and the complainant’s bill dismissed; and the other Judges of this court concurring, its aecree is reversed, and the bill dismissed.