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The opinion of the Court was delivered by

Sergeant, J.

The plaintiff below claims the land under a parol agreement, between him and Morris, one of the defendants, made at the time when the sheriff’s deed conveyed the land to Morris. This was an agreement, for a violation of which the plaintiff had his remedy against Morris by his action for damages; but that it should vest in him the fee simple of the land, is directly in contravention of the Act of Assembly of the 21st of March 1772, to prevent frauds and perjuries, by which all interests in land resting in parol merely, and not put in writing, are no more *376than tenancies at will. It is now settled by repeated decisions of this court, that if one buys the defendant’s property at sheriff’s sale, and verbally agrees to hold it in trust for the defendant, with a right of redemption in the defendant within a limited period, it is a contract resting in parol merely, and not transferring any title in the land. In Kisler v. Kisler, (2 Watts 327) and Robertson v. Robertson, (9 Watts 42) it was determined, that unless there is in the transaction more than is implied from the mere violation of a parol agreement, equity will not decree the purchaser to be a trustee. In Haines v. O’Conner, (10 Watts 320) these cases are recognised, and it is laid down, that a purchaser at sheriff’s sale, who has paid the money, can only be held a trustee ex maleficio, on account of the existence of fraud, and when that is the case, he is a trustee for the creditors and the debtor also, unless the debtor be particeps criminis. In the case before us there is no evidence of any collusion or act of fraud, on the part of Morris, in the purchase of the property, which could make him a trustee ex maleficio, and the fraud which may be alleged to exist in the mere violation of an agreement is no more than that which attends every violation of an agreement. If that were to be deemed sufficient, it would repeal the statute of frauds instanier, and leave titles to land to the frail and dangerous tenure of parol evidence, bringing with it all the mischiefs that compelled the enactment of statutes of this description for the protection of property.

But it seems to have been thought by the court below, that the case might be taken out of the statute of frauds, on the ground that Morris was.not a purchaser in trust for Heffner, but that the real character of the transaction was a loan of money from .Morris to Heffner, and an acceptance by Morris of an absolute deed from the sheriff with a parol defeasance, thus constituting in fact a mortgage of the land from Heffner to Morris. There seems to be nothing in the evidence to justify this view of the case. In the first place, the deed wras not made from Heffner to Morris, nor could it be: all his title was devested by the sheriff’s sale. The deed was from the sheriff, who could not by law accept a mortgage of the land, nor was such a thing contemplated on his part. He was bound to make an absolute deed to the purchaser of all the title of the debtor in the land. The truth of the case evidently is, that Morris took Patterson’s place as purchaser at the sheriff’s sale, and received the deed from the sheriff in that capacity, and could receive it in no other, without violating the Acts of Assembly for the sale of lands by execution.

In the next place, there is no evidence that Morris lent the money to Heffner. Heffner did not receive the money nor pay it over. It was Morris that paid the sheriff with his own money, and furnished the consideration of the sheriff’s deed, in lieu of Patterson. Morris told Miller he had advanced the money for Heffner, and that Heffner was to have the property whenever he *377paid the money. Patterson also says, he brought Morris there, and stated that Morris would take the deed for the house, and it was agreed there that Morris was to retain the property for some months, not longer than a year. Heffner was to have the property back on payment of the money. The evidence all goes in opposition to the allegation of the plaintiff’s counsel, that Patterson agreed to repay the money to Morris if Heffner did not.

There are several circumstances in this case tending to prove it inequitable, that the plaintiff should now recover this property, were it free from the insuperable objection of the Act of Assembly. The parol contract appears to have been made in April 1834. Morris then went into possession, and afterwards in vain demanded his money of the plaintiff. It was not till March 1837, three years afterwards, that the plaintiff tendered the money to Heffner, after the latter had sold the property. This was a delay of two years beyond the time limited, during which the plaintiff took the chance of the rise or fall of the property. Morris was not bound to lie out of his money. In the meanwhile Morris had articled to sell the property to Koch & Zimmerman, on the 7th of September 1836, and received twenty-five dollars on the sale; and on the 18th of December 1836, they assigned to Mrs. Fox, who received a deed on the 3d of April 1837, (when by the articles the money was to be paid) and made improvements between that time and the 20th of October 1837, to the amount of from thirty to fifty dollars. It was not till December 1837, that the plaintiff tendered her #202, and requested her to execute a deed to him. This she refused, saying she held or looked to Morris for the property. It would, we think, be unjust to take away the property under these circumstances, from Mrs. Fox, who had expended her money on the faith of the deed to Morris, as well as his possession, and his article with Koch & Zimmerman, and to vest it in one who had been guilty of so much laches.

We are, therefore, of opinion, that the court below erred in their charge to the jury, and that the judgment must be reversed.

Judgment reversed, and venire facias de novo awarded.

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