The conduct of Cooke after receiving Clay’s money, under a promise of applying it in payment of Parkhill’s judgment, though not reconcilea-ble with strict morality, is yet susceptible of some extenuation. The sum was insufficient to pay the debt, and would not, therefore, have arrested the execution. Cooke was himself a creditor, and must have passively witnessed a sale of the property and the probable loss of his own debt ,* hence, the temptation was strong upon him to seize a plank in the shipwreck; and though in justice, such temptation should have been resisted, after his promise, even at the hazard of losing his debt, yet his conduct cannot, in any point of view, be considered as fraudulent upon Clay’s creditors; all that they, or Clay, can rightfully demand from him is, the surplus of the money for which the property *154sold. To a certain extent, Cooke became a trustee for Clay, but to what amount, depended upon the adjustment of accounts between them. But the act of 1813, rendering lands liable to execution against the cestui que trust) does not affect this case; for that act, relates only to those fraudulent trusts in which the trustee has nothing more than the formal legal title, and the cestui que trust, the whole, beneficial interest. For the act provides that on such ■sales, the land shall be held and enjoyed, “freed and discharged from all incumbrances of such person or persons so seised or possessed in trust, for the person or persons against whom such execution shall be sued.” It is very evident that executions were not intended by the statute to reach those equitable interests which depend on the consideration and adjustment of various points of equity, and the settlement of accounts.
I am of opinion, that Clay’s interest in this lot, or rather his equitable claim upon Cooke, was not one of those contemplated by the act.
But, whatever the conduct of Cooke was in the purchase of the lot, it cannot affect the title of Hawkins, he was a fair purchaser, without knowledge of, or participation in, the breach of trust committed by Cooke, and is entitled to recover. — There must be a new trial.
I am at a loss to see how the statute of frauds, has any bearing upon this case; certainly not by the purchase of the property at the day of sale; every person was invited to purchase; and Cooke gave more than any body else was willing to give. With respect to the amount of Clay’s money in his hands, it could have been on the trial, reduced to a certainty, there was not as much as the execution calls for, under which the property was sold: whether, if it had been paid to the Plaintiff in the execution, it would have stopped the sale, is not known. I admit, Clay had an equity against Cooke; perhaps Cooke might have been compelled to rc-convey the *155property sold to Clay, or perhaps to Clay’s creditors; but not without paying the debt which Clay owed him by bond. If he was, in this respect, a trustee for Clay, it was such a trust as could not be sold under execution'.— .1 think there ought to be a new trial.
Henderson, Judge, concurred.