(after stating the case.) This action is to establish bj' parol a trust attaching to the lands conveyed to Levi Bailey by virtue of the agreement stated in the complaint, to have been entered into between him and Alvin Peacock, and to follow and enforce the same against the ancestor of the defendants, and themselves succeeding to his estate. The plaintiff derives his title thereto under mortgages made by Alvin Peacock respectively, to R. A. Hamilton and to Gay, Tyson & Co., the latter of which has date May 29, 1873, and was admitted to registration on June 10, afterwards. The non-suit was suffered upon the ruling that the alleged equity did not pass under a conveyance of the lands eo nomine, to which the alleged trusts adhered, and its correctness is the only matter argued by counsel on the appeal.
Taking the facts to be as represented in the complaint, the deed from Bailey to Stott, made to prevent creditors from reaching the land, or in other words, to defeat the purposes of the pending action and withdraw the property from execution was void, as against the suing creditor, and the sale afterwards made by the marshal passed to the purchaser, Hamilton, as well the several tracts mentioned in the fraudulent deed as the two tracts omitted from it, and thence the *153title to all was transmitted by his deed of March 11, 1873, to said Alvin Peacock. The legal estate and the alleged equity thus uniting in one person, the latter, was extinguished, and said Peacock became sole owner in fee. There was, therefore, no equity incidental to the legal estate in Alvin Peacock, that could be conveyed in his mortgage deed, and to which, under them, the plaintiff could succeed. Upon the plaintiff’s own showing then, he has no such cause of action as he sets out in the complaint, nor is he entitled to the relief demanded. The ruling of the Court that he has no such equity, not because of the structure of the mortgage, but for the non-existence of any equity to pass by means of it, mud be upheld, because correct in itself. Bell v. Cunningham, 81 N. C., 83. We do not, upon the question of title decide upon plaintiff’s right to recover the land, but only that upon his own averments he cannot maintain the action in its present form.
There is no error, and the judgment is affirmed.
Affirmed.