| W. Va. | Jan 15, 1871
The only question for consideration is whether or not the paper executed by Sherrard Clemens and wife, on the 10th day of April, 1867, purporting to be a deed of trust, creates a lien on the tract of land therein named, prior to the liens created by the judgments of the appellants Alonzo Child and Thomas Hughes. The paper purporting to be a deed of trust is not such because it has no seals. It is contended, however, that although it is not a deed of trust so as to create a legal lien, it is, nevertheless, a contract for a deed of trust, and creates an equitable lien, under the 4th Sec. of Ch. 118 of the Code of Va., in force when the paper was executed. This section provides that any contract in writing, made for the conveyance or sale of real estate shall be as against creditors and purchasers, as valid as if the contract was a deed conveying the estate or interest embraced in the contract. I do not think that this paper comes within the meaning of the terms used in the statute of a contract for the sale or conveyance of real estate. "While it might be technically a contract for a conveyance of the land, it is, in substance, nothing more than a contract for a lien upon the land to be created by deed of trust. The judgment creditors, Child and Hughes, have equal equities with the parties seeking to set up the deed of trust, and have the advantage over them at law. It is, therefore, not a proper case for a court of equity to interfere to set up the deed of trust against the judgment creditors. Not one of the numerous cases cited is inconsistent with this view of the case, while the case of White v. Denmen and others, 16 Ohio Rep., 59, fully sustains it.
The decree .complained of will have to be reversed, with costs to the appellants, and a decree entered here that special commissioner Brady proceed to sell the land under the
Decree reversed.