star-pagination">*Page 171 estate, yet Thomas seems to have released all further claim to the lands the moment his debt was paid; and however absolute it may appear, yet, if intended as a mortgage, it will be so considered in equity. We are therefore of opinion that this conveyance was not fraudulent, and the defendant Ray seems to have viewed it in the same light. For it fraudulent, he would have had a good title under his purchase at the (222) sheriff's sale; yet he preferred the title which Curry had obtained from Marmaduke and Thomas Maples to a deed from the sheriff. Indeed, he seemed to relinquish all idea of a title under the sheriff's sale when, instead of getting a deed from the sheriff without paying one cent for it, he chose to give $5 for Curry's title, although he is expressly told by Curry that he had sold the land to Medlin, and that he was no more than a trustee for said Medlin.

We are not to consider whether Ray having notice at the time of his purchase from Curry makes him a trustee for complainant, and in equity bound to convey. As to this point, it may be necessary to advert to some of the facts proved in the case. It is admitted by Ray, in his answer, that Curry told him he had sold to Medlin, and had only the naked title at law; but he says that he applied to Medlin, and he consented that Curry should convey; and it is also denied, in the answer, that he had any knowledge that complainant had ever purchased of Medlin, or had any claim to the land. It is denied, in the answer of Medlin, that he ever resold the lands to complainant, and admitted that he consented Curry should convey to Ray. On the part of the complainant the repurchase of this land from Medlin is satisfactorily proven. But it is contended that, although the land was resold by Medlin to the complainant, yet Ray, having no notice of this contract, and having obtained the consent of the only cestui que trust within his knowledge, cannot be affected by complainant's equitable title, and therefore not bound to convey. To this we answer that this argument is not founded on the proofs in the cause, because these facts are only stated in the answers of Ray and Medlin, to which there is a replication on the part of the complainant, and consequently the defendant Ray is bound to prove them. But in this proof he has failed. If, however, Ray was not held to this proof, what credit does the answer of Medlin seem entitled to, when he states that he was to give Curry £ 40 for the land, and which he must have paid; yet he is willing to let Ray (223) have it without having anything repaid to him? His answer is expressly contradicted by several witnesses as to the resale to complainant. This part of the case, then, being *Page 172 stripped of the evidence arising from the answers of Ray and Medlin, stands thus: Ray, at the time of his purchase from Curry, was expressly told by the latter that he had sold the lands, and was a mere naked trustee; in truth, that he had nothing to sell or transfer, but the mere legal title, which Ray, under this notice, obtained from him. Upon this statement there can be no doubt but that Ray became a trustee for the complainant, and bound to convey to the cestui que trust in the same manner Curry would have been bound. But it is said that Ray had no notice of the particular cestuique trust, and that general notice is not sufficient. We think it is not necessary that he should have notice of the particular cestui que trust; it is sufficient if he have notice that the person from whom he buys is but a mere trustee. For he is then informed that he can buy nothing, that the seller has nothing to part with, and that the moment he obtains the legal estate he becomes a trustee for the cestui que trust, be he who he may. It is his business to inquire and search him out. As between the complainant and one of the defendants, this is, then, only the common bill for a specific performance of a contract, upon a consideration actually paid. It is one of the most ordinary subjects of relief, and the defendant Ray being a purchaser with notice, he is liable to the same equity, stands in his place, and is bound to do that which the person whom he represents would have been bound to do by the decree. 5 Bac., 393; 2 Ves., Jr., 440. Let the decree be entered for the complainant, compelling the defendant Ray to convey the lands, and to pay costs.

Cited: Christmas v. Mitchell, 38 N.C. 545.

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