AlleN, J.
It was contended before us tbat tbe decree in tbe action of Lee Fuller v. Jenkins did not carry tbe title to S. J. Fuller, because of tbe mistake in tbe second initial, and tbat it would first be necessary to bring an action to correct tbe decree. This is unnecessary under our system of procedure, combining legal and equitable remedies. As it is found as a fact tbat S. J. Fuller was intended when by mistake S. H. Fuller was named, and tbat S. J. Fuller, tbe party named, is Josephine Fuller, tbe wife of Lee Fuller, wbo joined in tbe conveyance to Jenkins in 1896, and wbo, with her husband, made tbe subsequent deed to tbe plaintiff in January, 1903, this is sufficient if tbe grantee (by whatever name) obtained tbe title under such decree. Tbe name used is merely a designation to identify tbe party, and when tbat identity is established a variation in name, and especially a difference in the middle letter, as S. H. Fuller instead of S. J. Fuller, is immaterial.
In Words and Phrases (Second Series), under tbe title “Name,” it is said: “Tbe common law recognizes but one Christian name, and a middle initial may be dropped or changed at pleasure.” It is further said: “In law tbe name of a person consists of one given name and one surname.”
[152] Tbe plaintiff in ber amended complaint sets out tbe decree of 1902 as a part of ber title, and alleges tbat it bad tbe effect of passing to tbe wife of Lee Fuller a perfect equitable title, if not a legal title, and to these allegations tbe defendant makes no answer, nor does be allege tbat tbe direction in tbe decree to make tbe title to tbe wife was fraudulent.
There is also no evidence of an adverse possession by tbe defendant and those under whom be claims prior to 1909, about five years before suit brought; so tbat there is no evidence of seven years adverse possession under color.
There are, therefore, two questions, which are determinative of tbe appeal:
(1) Did tbe wife of Lee Fuller acquire a legal or equitable title to ' tbe land in controversy under tbe decree of 1902?
(2) Did tbe sale by tbe marshal of tbe United States, under which tbe defendant claims, pass a legal or equitable title to tbe purchaser?
Tbe plaintiff may maintain ber action against tbe defendant upon an equitable title (Watkins v. Mfg. Co., 131 N. C., 537, and cases cited), and if tbe decree vested such a title in ber grantor, and it was not divested by tbe sale by tbe marshal, which has tbe legal effect of a sale under execution, she is entitled to recover; and, on tbe other band, if tbe grantor of tbe plaintiff acquired no title, legal or equitable, under tbe decree, or if there was such title and it was divested by tbe sale, she cannot recover.
It is doubtful if tbe decree bad tbe effect of vesting tbe legal title in tbe wife of Lee Fuller under tbe statute (Revisal, secs. 566-7), because of tbe failure to declare tbat it “shall be regarded as a deed of conveyance” (Morris v. White, 96 N. C., 93), although the' authority cited appears to give a narrow construction to tbe statute, and to attach more importance to tbe section declaring tbe effect of tbe decree than to tbe one prescribing its form; but however this may be, it appears from tbe record in tbe action of Fuller v. Jenkins that Jenkins, by force of tbe decree, held tbe legal title in trust to secure an amount due him, and then in-trust for Lee Fuller, and tbat tbe amount due was paid, and this left tbe bare legal title in Jenkins and tbe beneficial interest and equitable estate in Lee Fuller, which be bad tbe right to direct should be vested in bis wife, although she was not .a party. Testerman v. Poe, 19 N. C., 103; Campbell v. Baker, 51 N. C., 256; Ward v. Lowndes, 96 N. C., 381.
Tbe last case cited was tbat ~of a purchase at a judicial sale by tbe husband, and a direction by him to make title to bis wife, who was not a party, and tbe Court says: “Tbe purchaser of tbe land, Lowndes, directed tbe deed for it to be made to bis wife, and-the administrator [153] did so make it. Tbis is made a gound of objection by tbe plaintiffs. It seems to us to be wholly without merit. The purchase money was paid as required by the order of the court, and the administrator was directed to make title to the purchaser. Why might he not make it to such person as the purchaser directed — to his wife? His power to convey to the purchaser was complete; the purchaser was entitled to have the deed made to him. Why not to have it made to such person as he might indicate? We can see no legal reason why he was not.” The fact that the deed was not executed only effects the legal and not the equitable title.
We are, therefore, of opinion that the decree vested the equitable title in the wife of Lee Fuller; but if this was not so, the equitable title was in Lee Fuller and passed to the plaintiff under the deed of Lee Fuller and wife.
Did the purchaser at the sale by the marshal acquire a legal or equitable title ? and this depends on whether Lee Fuller had at that time, two years before the decree in Fuller v. Jenkins, an estate in the land subject to sale under execution, or a mere right.
The distinction between a right to have an equity established and enforced, which is not the subject of sale under execution, and an equitable estate, which may be sold, if “simple and unmixed,” that is, one which entitles the owner to call for the legal title, is'well established. Thompson v. Thompson, 46 N. C., 38; Bond v. Hilton, 51 N. C., 181; Nelson v. Hughes, 55 N. C., 36; Taylor v. Dawson, 56 N. C., 91; Hinsdale v. Thornton, 75 N. C., 383; Henley v. Wilson, 77 N. C., 218; Cedar Works v. Lumber Co., 168 N. C., 396.
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AlleN, J.
It was contended before us tbat tbe decree in tbe action of Lee Fuller v. Jenkins did not carry tbe title to S. J. Fuller, because of tbe mistake in tbe second initial, and tbat it would first be necessary to bring an action to correct tbe decree. This is unnecessary under our system of procedure, combining legal and equitable remedies. As it is found as a fact tbat S. J. Fuller was intended when by mistake S. H. Fuller was named, and tbat S. J. Fuller, tbe party named, is Josephine Fuller, tbe wife of Lee Fuller, wbo joined in tbe conveyance to Jenkins in 1896, and wbo, with her husband, made tbe subsequent deed to tbe plaintiff in January, 1903, this is sufficient if tbe grantee (by whatever name) obtained tbe title under such decree. Tbe name used is merely a designation to identify tbe party, and when tbat identity is established a variation in name, and especially a difference in the middle letter, as S. H. Fuller instead of S. J. Fuller, is immaterial.
In Words and Phrases (Second Series), under tbe title “Name,” it is said: “Tbe common law recognizes but one Christian name, and a middle initial may be dropped or changed at pleasure.” It is further said: “In law tbe name of a person consists of one given name and one surname.”
[152] Tbe plaintiff in ber amended complaint sets out tbe decree of 1902 as a part of ber title, and alleges tbat it bad tbe effect of passing to tbe wife of Lee Fuller a perfect equitable title, if not a legal title, and to these allegations tbe defendant makes no answer, nor does be allege tbat tbe direction in tbe decree to make tbe title to tbe wife was fraudulent.
There is also no evidence of an adverse possession by tbe defendant and those under whom be claims prior to 1909, about five years before suit brought; so tbat there is no evidence of seven years adverse possession under color.
There are, therefore, two questions, which are determinative of tbe appeal:
(1) Did tbe wife of Lee Fuller acquire a legal or equitable title to ' tbe land in controversy under tbe decree of 1902?
(2) Did tbe sale by tbe marshal of tbe United States, under which tbe defendant claims, pass a legal or equitable title to tbe purchaser?
Tbe plaintiff may maintain ber action against tbe defendant upon an equitable title (Watkins v. Mfg. Co., 131 N. C., 537, and cases cited), and if tbe decree vested such a title in ber grantor, and it was not divested by tbe sale by tbe marshal, which has tbe legal effect of a sale under execution, she is entitled to recover; and, on tbe other band, if tbe grantor of tbe plaintiff acquired no title, legal or equitable, under tbe decree, or if there was such title and it was divested by tbe sale, she cannot recover.
It is doubtful if tbe decree bad tbe effect of vesting tbe legal title in tbe wife of Lee Fuller under tbe statute (Revisal, secs. 566-7), because of tbe failure to declare tbat it “shall be regarded as a deed of conveyance” (Morris v. White, 96 N. C., 93), although the' authority cited appears to give a narrow construction to tbe statute, and to attach more importance to tbe section declaring tbe effect of tbe decree than to tbe one prescribing its form; but however this may be, it appears from tbe record in tbe action of Fuller v. Jenkins that Jenkins, by force of tbe decree, held tbe legal title in trust to secure an amount due him, and then in-trust for Lee Fuller, and tbat tbe amount due was paid, and this left tbe bare legal title in Jenkins and tbe beneficial interest and equitable estate in Lee Fuller, which be bad tbe right to direct should be vested in bis wife, although she was not .a party. Testerman v. Poe, 19 N. C., 103; Campbell v. Baker, 51 N. C., 256; Ward v. Lowndes, 96 N. C., 381.
Tbe last case cited was tbat ~of a purchase at a judicial sale by tbe husband, and a direction by him to make title to bis wife, who was not a party, and tbe Court says: “Tbe purchaser of tbe land, Lowndes, directed tbe deed for it to be made to bis wife, and-the administrator [153] did so make it. Tbis is made a gound of objection by tbe plaintiffs. It seems to us to be wholly without merit. The purchase money was paid as required by the order of the court, and the administrator was directed to make title to the purchaser. Why might he not make it to such person as the purchaser directed — to his wife? His power to convey to the purchaser was complete; the purchaser was entitled to have the deed made to him. Why not to have it made to such person as he might indicate? We can see no legal reason why he was not.” The fact that the deed was not executed only effects the legal and not the equitable title.
We are, therefore, of opinion that the decree vested the equitable title in the wife of Lee Fuller; but if this was not so, the equitable title was in Lee Fuller and passed to the plaintiff under the deed of Lee Fuller and wife.
Did the purchaser at the sale by the marshal acquire a legal or equitable title ? and this depends on whether Lee Fuller had at that time, two years before the decree in Fuller v. Jenkins, an estate in the land subject to sale under execution, or a mere right.
The distinction between a right to have an equity established and enforced, which is not the subject of sale under execution, and an equitable estate, which may be sold, if “simple and unmixed,” that is, one which entitles the owner to call for the legal title, is'well established. Thompson v. Thompson, 46 N. C., 38; Bond v. Hilton, 51 N. C., 181; Nelson v. Hughes, 55 N. C., 36; Taylor v. Dawson, 56 N. C., 91; Hinsdale v. Thornton, 75 N. C., 383; Henley v. Wilson, 77 N. C., 218; Cedar Works v. Lumber Co., 168 N. C., 396.
The Court says in the first of these cases: “The ground of distinction consists in the difference between a trust created by the act of the .parties, where he who has the legal estate consents to hold it in trust for the other, and there is no adverse possession or conflict of claims, and a trust created by the act of a court of equity, where there is a conflict of claims, and the party having the legal estate holds adversely and does not become a trustee until he is converted into one by a decree founded on fraud, or the like. In the former the cestui que trust has an estate; in the latter there is a mere right”; in the second, “In equity, where the trust is by agreement of the parties, we say the cestui que trust has the estate; but where a decree is necessary, in order to convert one into a trustee against his consent, the party has a mere right”; in the third, “ ‘A right’ to property is not subject to execution at common law; the debtor must have an ‘estate’; consequently, ‘a right’ to have one declared a trustee is not subject to execution under the statute; the debtor must have a subsisting trust — an ‘estate’ — as distinguished from a mere ‘right in equity’ ”; in the fourth, [154] “All trusts are etber by agreement of the parties, as where there is a declaration to that effect, or where a trust is implied or presumed, as a resulting trust, or where one buys land and has the title made to a third person; or against the assent of the party who has the legal title. . . . In the former there is no adverse holding or conflict of claim between the trustee and cestui que trustj the one holds by agreement the legal title for the other, who has the estate in equity. In the latter there is an adverse holding and conflict of claim; the* one holds the legal title for himself or some third person, who has a privity, or is in collusion with him (as in our case), and the other has but a right in equity or chose in action”; in the fifth, “Where one has only a right in equity to.convert the holder of the legal estate into a trustee, and call for a conveyance, the idea that this is a trust estate, subject to sale under ji. fa., is new to us. True, his right to call for the legal estate is not subject to any further consideration than proof of the facts alleged in support of his right, but there is no trust estate until the decree declares the facts and the court declares its opinion to be that the one party shall be converted into a trustee for the other. It follows that the party has no estate subject to execution sale until the decree has vested an equitable estate in him,” and the other cases cited are to the same effect.
The principle clearly deducible from these authorities is that if it appears on the face of the writings that the legal title is in one, but that it is held in whole or in part for the benefit of or in trust for another, the latter has an estate, although he may have to go into a court of equity to enforce his claim; but if there is no declaration of the trust, and the holder of the legal title denies the right, and the one claiming a beneficial interest is compelled to invoke the aid of a court of equity to establish the facts upon which his right depends, he has no estate until the decree is entered in his favor.
We repeat here the language of Pearson, O. J., in Bond v. Hilton, that “When a decree is necessary in order to convert one into a trustee against his consent, the party has a mere right,” and in Hinsdale v. Thornton, “There is no trust estate until the decree declares the facts and the court declares the opinion to be that the one party shall be converted into a trustee for the other. It follows that the party has no estate subject to execution sale until the decree has vested an equitable estate in him.”
At the time of the sale by the marshal the title was in Jenkins, who held under a deed, in which there was no declaration of a trust or other evidence of an equity, and who denied that he held the title as a security; a decree was necessary to establish the facts upon which the right of Lee Fuller rested; the sale was two years before the entry [155] of tbe decree, and it follows that Fuller had at that time a mere right, which was not subject to sale,- not an estate, and that the purchaser acquired no title; and this is in line with the policy of our law which discourages the sale of uncertain and speculative interests.
The title was in Jenkins under a deed absolute, and there was nothing on the record to suggest that Fuller had either right, title, interest, or equity in the land. An action was pending in which Fuller alleged that the clause of defeasance had been omitted from the deed to Jenkins by mistake and that it was intended as a security for debt, and this was denied by Jenkins. It was under these conditions the sale was made, when Fuller had nothing for sale except a lawsuit, and it is not surprising that the purchase price was $1, which is less than 9 cents per acre for the land in controversy.
We, therefore, hold that the plaintiff has at least an equitable estate, and that as the defendant acquired no title under the sale by the marshal, she is entitled to recover.
There is much authority in support of the position that if Fuller had an equitable estate it was not one subject to sale under execution, because not a simple equity (Gillis v. McKoy, 15 N. C., 174; McGee v. Hussey, 27 N. C., 258; Battle v. Petway, 27 N. C., 578; Williams v. Council, 49 N. C., 214; Tally v. Reid, 72 N. C., 337; Love v. Smathers, 82 N. C., 373; Mayo v. Staton, 137 N. C., 685), and there is also authority that the act of 1812 includes all equities of redemption (Thorpe v. Ricks, 21 N. C., 618; Davis v. Evans, 27 N. C., 534; Doak v. Bank, 28 N. C., 330; Frost v. Reynolds, 39 N. C., 498), although these cases are based on Thorpe v. Ricks in which the right to redeem was in writing; but it is not necessary to discuss this question, as there was no estate in Fuller at the time of the sale.
Affirmed.