Bill in chancery by the cestui que trust against his trustee, to obtain the legal title to land. The bill charges that the trustee had fraudulently conveyed the land to a third person, who had notice of the plaintiff’s equity. Decree for the plaintiff. The defendants appeal.
Milligan, the plaintiff, and the defendant Ridgway, purchased jointly a half section of land, of which Milligan was to have two hundred acres and Ridgway one hundred and twenty. They paid their respective shares of the purchase-money, and the land was conveyed to Ridgway. In December, 1847, Milligan sold eighty acres of his land to one Jones for 480 dollars, and gave him a bond for the legal title on payment of the purchase-money. Milligan and Ridgway afterwards made the following agreement:
“ Memorandum of an agreement made this 29th day of January, 1849, by and between L. P. Milligan and David Ridgway, both of the county of Huntington, and state of Indiana, witnesseth, that whereas there is an agreement between said parties, written in pencil, bearing date about the 30th of October., 1844, which was for the same con*274sideration and in part for the same covenants, which said agreement is hereby cancelled and made void; now the parties hereby agree as follows: That whereas the said L. P. Milligan has paid to the said David Ridgway the full consideration for the following described tract of land (here described), containing two hundred acres: Now it is hereby agreed that when the said L. P. Milligan shall settle a certain claim in favor of Moses Harris and Joseph Wright, of money which they are liable for to John Bealle and Thomas Hogg, of Cadiz, Ohio, as bail for said Milligan, then the said Ridgway agrees to make and execute a good and sufficient deed in fee simple for the aforesaid premises ; but nothing in this writing shall be so construed as in anywise to cancel certain claims which the said Milligan holds against the said Moses Harris, dated the 27th July, 1845, none of which are taken into this account, but subject to any adjustment or settlement as though this contract had not been made. And the said Ridgway further agrees that if the said Milligan shall at any time wish to sell said premises, that by the said Milligan transferring the amount of the said claims to the said Hogg and Bealle of Cadiz, to the said Ridgway, either in notes for the purchase-money or in cash, the said Ridgway agrees to make said deed to the assignee of the said Milligan, and, further, the said Ridgway agrees to make a deed to George H Jones for the tract of eighty acres, which the said Milligan sold to the said G. H. Jones upon the order of the said Milligan so to do.
“ In testimony whereof we, the above parties, have hereunto set our hands and seals, this 29th January, 1849. L. P. Milligan, (seal). David Ridgway, (seal).”
The demands against Milligan, in favor of Hogg and Bealle, were for borrowed money, for which Harris and Wright were his sureties, and amounted originally to about 600 dollars, on which some payments had been made by Milligan. In October, 1849, Milligan sold a hundred and twenty acres of his land to one Hart, to whom Ridgway conveyed it, at Milligan's request, and he received Hart’s note for 300 dollars on account of Harris and Wright.
*275When Jones purchased the eighty acres, he paid MUMgan 200 dollars, and the residue was to be paid in carpenter work when called for. On the 12th of October, 1849, Jones assigned his title-bond to one Job Ridgway, who, on the 24th of December following, assigned it to the defendant Pefley. Jones paid the further sum of 40 dollars, which left 240 dollars due Milligan for this tract, which amount Pefley paid to the defendant Ridgway, who conveyed the land to him. Pefley had notice of the balance due Milligan in carpenter work, and also of the contract of January 29,1849, before recited, which he inspected at the time of the transaction.
The parties have discussed that branch of the case which relates to the liabilities of Milligan to Harris and Wright, particularly in reference to the amount paid by Ridgway, but the view we shall take of the case will not require us to settle that matter.
We do not see upon what principle the decree of the Circuit Court can be sustained. The plaintiff insists that the contract of January 29th, 1849, was induced by the fraudulent representations of Ridgway that he had been employed by Harris and Wright to secure their claims, when in fact he was a mere volunteer, having no such authority. However that may be, the bill makes no case upon this point. It is not alleged that there was any fraud in the matter, nor does it propose to set aside that agreement. The plaintiff answers this by saying that when a bill has been drawn in ignorance of the facts which come out in the answer, relief will be given upon the case made by the bill and answer; and there are authorities for such a practice; Deatly’s Heirs v. Murphy, 3 A. K. Marsh. 472; but the better practice is to amend the bill, when the new matter is disclosed.
The point is immaterial in this case, because the bill was not filed in ignorance of the facts relied upon to show that Ridgway was a volunteer. On the 11th of May, 1850, Harris, in answer to a letter from Milligan, wrote to him as follows: “ As to my employing David Ridgway as my *276agent, it is something new to me,” &e. The bill was not filed until November following. On the receipt of this intelligence, Milligan might very properly have proceeded to relieve Ridgway of the duties he had officiously taken upon himself, but he did nothing, and it would appear from the evidence that all, or nearly all the payments made by Ridgway to the use of Harris and Wright were after that time. It is evident that when Milligan filed his bill he did not intend to call in question the conduct of Ridgway in obtaining the agreement referred to.
It is said by the plaintiff, that the contract above recited, bound Ridgway absolutely to convey the eighty acres of land, whenever Milligan should request it, and that it had nothing to do with the previous stipulation concerning the claim of Harris and Wright. That is true; but to whom was the conveyance to be made? Not to Milligan, but to Tones, to whom Milligan had sold the land. How can he call for the legal title against his own bond held by Pefley as assignee? It is said that Pefley, when he paid the residue of the purchase-money, and received the deed, had notice that there was a balance due Milligam of the purchase-money. The proof sustains this position; and if this were a bill to enforce a vendor’s lien, Pefley could not avail himself of the payment thus made, unless he could show that Milligan had received the full benefit of it; but it furnishes no ground for Milligam to claim the legal title. He does not ask to rescind his sale, nor to set aside his bond, but claims the land in the face of it. The plaintiff has mistaken his remedy, and can have no relief under this bill. He might also proceed against Ridgway as his trustee, and compel him to account, but this bill is not adapted to that kind of relief.
The bill must be dismissed, but without prejudice to the right of Milligan to enforce his vendor’s lien, or to compel Ridgway to account as he may elect.
The judgment is reversed with costs. Cause remanded, with instructions to the Circuit Court to dismiss the bill, saving the right of Milligan to enforce his *277lien for the purchase-money, or to compel his trustee, Ridgway, to account.
D. Kilgore and I Blackford, for the appellants.
L. P. Milligan, J. R. Slack and W. March, for the appellee.