What the exact nature of that estate is, which a bargainee in a deed of bargain and sale acquires upon the execution and before the registration of his deed, and whether he can, by a simple act of surrender or of cancellation of the unregistered instrument, unaccompanied with any written agreement, determine that estate, and revest it in the bargainor, seem to be still vexed questions in this state, and the authorities with reference to them hopelessly irreconcilable. But important as they may be, and desirable as it is that they should be put upon a more certain footing than they now occupy, it is not necessary, and therefore not proper, that we should assume that task in the *386present case, since, irrespectively of them, the court thinks the plaintiff clearly entitled to the relief he seeks in the action.
That some estate, of some sort, vested in him upon the execution of theVleed by Welsh on the 1st of October, 1870, and its delivery to his father for him; and that, being an infant, he was incapable of parting with that estate, or of assenting to the destruction of the deed under which he took — and that no one could lawfully do so for him — are all propositions that admit of no argument against them.
Whatever, then, the nature of his estate may have been, it still abides, unimpaired, in the plaintiff; and it is in order that he may be in a condition to assert it, that the court of equity will restore him to the position he was in before the unwarranted destruction of his muniment of title.
In Tolar v. Tolar, 1 Dev. Eq., 456, and in Plummer v. Baskerville, 1 Ired. Eq., 252, it is said, that whenever a deed which has been once duly delivered is improperly withheld from registration, a court of equity will compel its production for that purpose, or, if destroyed, will have its place supplied by another.
In Walker v. Coltraine, 6 Ired. Eq., 79, the jurisdiction of the court in such case is said to be founded purely in the fact, that certain rights were acquired by the delivery of the deed, which by its destruction are obstructed.
It is no answer to this right of the plaintiff to be put in statu quo, to say, as was said in the argument, that he himself paid nothing as the consideration of the deed made to him by Welsh, and that, having nothing but a bare equity, he should be postponed to the superior title of the defendant, who has paid the full consideration called for in his deed, and withal has acquired the legal estate.
In the first place, the promises of the plaintiff’s brothers-in-law to pay the purchase money to Welsh, evidenced by their bonds to him, constituted a consideration amply sufficient under the statute of uses to support the conveyance to the plaintiff. In 2 Saunders on Uses, 58, it is declared that the consideration of a *387deed of bargain and sale need not be paid upon the execution of the instrument, nor by the party to whom it is made, but that it will suffice, if secured to be paid at a future day, and by another on his account; and as to the priority asserted for the defendant-on account of his having secured the legal estate, it is sufficient to say, that he acquired it, as well as his equitable estate, not only with a knowledge of the plaintiff’s claim, but in pursuance of a tortious agreement, made with the party intrusted with the plaintiff’s deed, for its destruction, and it would be contrary to every principle which should obtain in a court of equity, to permit him thus to take advantage of his own wrong, and thereby acquire precedence over the older and bona fide claim of the plaintiff'. To entitle himself to such a priority, as is claimed for him, he must show, not only that he is a purchaser for value, but one without notice. See Crump v. Black, 6 Ired. Eq., 321, and May v. Hanks, Phil. Eq., 310.
This court can perceive no error therefore in the judgment of the court below, of which the defendant Herron can complain, and the same must be affirmed. '
As to how far the plaintiff, when restored to the legal title in the land, may be affected with a trust in favor of Mrs. Welsh, by reason of the fact that it was originally purchased with her judgment against the plaintiff’s father constituting her separate property, is a matter we have not considered upon this appeal. So far as we can discover from the record, it was not made a point upon the trial, by either party, and no issues were submitted, or instructions asked, with reference to it; and if there had been, it could avail nothing, since the defendant sets up no such defence in his answer, but professes to meet the plaintiff squarely upon the single issue as to their respective titles acquired under the deeds from Welsh. It would then be a case of “ proof without allegation,” which, as said in May v. Hanks, supra, “ is no better than allegation without proof.”
No error. Affirmed.