1. It is settled law that, where the estate or interest in real property is legal in its nature, a court of equity will not assume jurisdiction at the suit of the owner to try and determine a dispute to the title, unless he is in possession, but will leave him to his remedy at law. In this case there are no special circumstances affording ground for equitable jurisdiction. The plaintiff’s title, if any, is a legal one, founded upon adverse possession. The proceedings in the action of Hanthorn & Company against Watkins gave the purchaser no title to the property, either legal or equitable. Although Watkins purchased and paid for the land, and, it may be conceded, caused it to be conveyed to his wife for the purpose of defrauding his creditors, he had no¡ interest therein to which the lien of a judgment could attach, or which could be sold under an execution. Where land is purchased and paid for by one person, but conveyed to another, a trust results in favor of the person who' paid the price (Parker v. Newitt, 18 Or. 274, 23 Pac. 246; Taylor v. Miles, 19 Or. 550, 25 Pac. 143); but it is a mere equitable interest, and *511in this state cannot be seised or sold on execution: Smith v. Ingles, 2 Or. 43; Bloomfield v. Humason, 11 Or. 229 (4 Pac. 332). Nor in such case can the title be reached by an execution against the cestui que trust, even if the conveyance was made for the express purpose of defrauding creditors. The property may, of course, be made to contribute to the payment of the debts of its real owner, but the remedy of the creditor is in equity, and not at law. Mr. Freeman says: “Where a debtor has fraudulently conveyed his property, it may be taken on- execution against him, because, in favor of his creditors, he is still considered as the owner of the legal as well as of the equitable title. But when he has fraudulently bought property, and had the title taken in the name of another, the circumstances are different, though the object is the same. If the transfer were treated as void, the title would remain in the person of whom the purchase was made, and this would be of no advantage to the creditors. The transfer must therefore be treated as valid, and as transmitting the legal title to the person named in the deed. This legal title cannot be reached by the levy of an execution against the debtor, because he has never owned it. The creditors. must therefore resort to equity, except in a few states, where statutes have been enacted to enable them to reach it at law”: 1 Freeman, Ex’ns (3 ed.), § 136. See, also, 14 Am. & Eng. Enc. Law (2 ed.), 313; Wait, Fraud. Conv., § 57; Robertson v. Sayre, 134 N. Y. 97 (31 N. E. 250); In re Estes, 6 Sawy. 459 (Fed. Cas. No. 4,536).
2. It follows, therefore, that the plaintiff has no standing in equity, on the theory that he has an equitable title which he could not assert at law; for no1 title or interest whatever in the property was acquired by the sale under the judgment of Hanthorn & Company. His title, then, rests entirely upon adverse possession, and, before he can assert such a title in equity, he must be in possession of the property: Coolidge v. Forward, 11 Or. 118 (2 Pac. 292); *512O’Hara v. Parker, 27 Or. 156 (39 Pac. 1004). The complaint alleges, the court found, and the evidence shows conclusively, that, at the time the suit was commenced, the defendant Lee was, and had been for some time, in possession of at least a portion of the premises, occupying the only building thereon, and was asserting and claiming possession of the remainder. The plaintiff seeks tO' have his title to the entire tract quieted, but is admittedly not in possession of a considerable portion thereof, and is therefore as effectually barred from the relief sought -as if entirely out of possession. It may be, under proper pleadings and evidence, that the court could, in a case of this character, ascertain what definite part of a tract of land, if any, a plaintiff is in possession of, and quiet his title thereto'; but nothing of that sort was attempted by the pleadings and evidence in this case. We think, therefore, the court had no jurisdiction to determine the dispute between the parties by a proceeding in equity. The decree of the court below must therefore be reversed, and the complaint dismissed. Reversed.
