We were inclined at the hearing, after the well considered and able argument of Mr. Ray, to overrule his Honor, and to hold that upon the findings of the jury on the issues submitted, there was error in the judgment dismissing the action, and that judgment should have been entered for the plaintiff at least for the amount of his debt and interest, if not, for a ratable part of the fund in the hands of McKay. This larger equity being put on the ground, that Lutterloh bought the land and took a deed for the use of himself and of McLaurin, and Murchison, and McKethan, creditors of Mc-Kellar, under an agreement that he would act as agent for them, this created an express trust, that is, one by consent' of parties, as distinguished from a constructive trust, that is, one made by a Court of equity, whereby a person against his *434consent, is converted into a trustee by reason of fraud, bad faith and the like.
The objection that this trust, created by agreement, was void, because not evidenced by writing, is met by the case, Hargan v. King, and that class of cases. Let it be noticed, that this class differs from the class of eases where the maker of a deed, absolute upon its face, seeks to convert it into a deed to secure the payment of a debt, to-wit, a mortgage, on the ground that the deed was obtained by fraud, accident, mistake or oppression, of which class, Staton v. Jones and Kelley v. Bryan, 6 Ired. Eq., 283, are the leading authorities. And it differs from the class of cases, in which it is held, that “ an agreement to sell or convey land or any interest therein, unless there be some note or memorandum thereof in writing, &e., shall be void.” The cases under this class, are such as reject the doe trine of part performance, and are too tedious to mention.
The learned Judge held, the agreement “that Lutterloh would buy the land for himself and McLaurin, (they having priority to the amount of their debts,) and for the defendant and Murchison, was void, because not reduced to writing, and did not attach itself as a trust to the land in the hands of Lut-terloh. There is error. Ilis Honor did not advert to the distinction settled by the class of cases represented by Hargan v. King, “ between an agreement relating to land,” and a agreement to sell or convey land.
Assuming that a trust attached to the land in the hands of Lutterloh, and assuming also that the debts of Lutterloh and McLaurin were satisfied, and that they had relinquished all for their interest in the trust fund, as is alleged in the complaint (Note: This fact is not found by the jury.) Then it follows upon plain principles of equity, that Murchison who purchased the land of Lutterloh for value, but with notice. (3d issue,; held it subject to the trust of McKethan ; it also follows, upon plain principles of equity, that as Murchison had become trustee, his purchase of the title of Leak, was for the benefit of the trust fund and operated byway of extinguishment; it also fob *435lows, upon plain principles of equity, that McKay beiDg a purchaser at execution sale, took the plaee of Murchison and acquired no more than what he could rightfully convey ;in other words, stood in the place of a purchaser with notice. It also follows upon plain principles of equity, that the plaintiff has his election to charge McKay with his proportionate part of the trust fund, into which the land has been converted, or to follow the land itself in the hands of Hawkins, who had notice of the trust in favor of plaintiff before he paid the price and took a deed for the land, and was not obliged to go on with an execu-tory contract made (as we will suppose) before he was put on inquiry in respect to the incumbrances upon the title of McKay.
The other two positions taken by his Honor in support of the judgment are not tenable.
1. Mutual promises constitute a valuable consideration ; this is settled.
Besides this McKethan performed his promise by assigning the execution in favor of himself and Murchison to Lutterloh, to be made available, if necessary, to satisfy his bid for the land.
2. It is “a stale demand” that is as we understand his Honor to mean, a demand barred by the statute of limitations or by the principles of the common law.
At what time Murchison bought the land of Lutterloh is not set out in the case' — it was after March, 1857. For that was the date of Lutterloh’s purchase, which created the trust. Suppose this act of Murchison in buying the land, and taking an absolute deed from Lutterloh, was a disavowal of his relation to McKethan as tenant in common, and amounted to an “ actual ouster ” so as to put the Statute of Limitations in motion, as to which a good deal could be said. See Day v. Howard, at this term.
The time in which an equity, raised by the Court in regard to land can be barred in analogy to the statute of Limitations) is seven years. Edwards v. University, 1 Dev. & Bat. Eq, 325. Counting out 1861 to 1870. the statute is no bar. The doctrine of “ stale demands,” which the courts have in the ab*436sence of legislation felt called upon to administer, was never resorted to in England under twenty years, and in this State ten years.
We do not feel at liberty to express any decided opinion upon the matters of law above set out, so as to exclude further argument and discussion, because we consider the objection for want of parties well taken, ore terms and in this Court for the first time. Lutterloh is a necessary party, because he was the original trustee, and ought to be heard, and concluded in respect to his selling the trust fund to Murchison, and in respect to the alleged satisfaction of his debt and his relinquishment of all further claim to the trust fund, which as it turns up is much in excess of an amount sufficient to pay the debts of the respective parties, to the agreement under which Lutterloh took the legal title. The question is presented after the satisfaction of the debts of Lutterloh and McLaurin and of Murchison and McKethan, the trust fund being in excess, how is it to be disposed of? Clearly Lutterloh is concerned in this question, and clearly McLaurin is ajso concerned in it.
We also think that Hawkins is a necessary party, for if the plaintiff gets judgment., and MKay fails to pay, then the plaintiff may follow the land having his election to take|the trust fund iu its converted state that is the $7000 in the hands of McKay, or to hold on to the land in its unconverted state, which would bear on Hawkins.
Our conclusion is, that in order to have a judgment binding upon all persons concerned and settling all matters of controversy in respect to the many transactions in regard to this land, the case be remanded to the end that all proper parties be made. The plaintiff will pay the cost of this Court. In the Court below he will have the benefit of the issues found by the jury, that verdict stands as between the present parties. New issues will only be submitted upon allegation of the new parties,' who may be brought in as plaintiffs or defendants, as they are advised.
Case remanded to make parties.