Field, C. J. and Cope, J. concurring.

This suit was brought to recover possession of a lot in the city of San Francisco. Paintiff claims by Sheriff’s deed, upon execution sale made of the property as that of one Athaie, defendant in the process. This lot was conveyed to Athaie by deed of bargain and sale in the usual form, except that in the habendum of the deed these words appear: “For the use:of a Chinese church, or *51 place of religious worship or moral instruction, under his direction and in conformity to the rules of the See Tup Company.” ' The main question is, whether this property thus conveyed-is subject to the debts of the grantee, or whether he holds it in trust, so that it cannot be so taken.

We lay out of the question all notice of the alleged illegal consideration involved in the supposed heathenish or idolatrous rites connected with the use of this building as a Chinese place of worship. This matter seems not now to be pressed. The ground assumed by the appellant is, that for technical reasons applying to the construction of a deed of bargain and sale, the habendum cannot control the granting clause; and that if it could, the words quoted in the habendum by fair construction do not raise a use or trust which could be enforced.

Much curious learning is to be found in the books as to the effect of deeds, and many subtle and unsubstantial distinctions, and technical and arbitrary rules laid down touching their construction and operation. It is said that the office of the habendum is to limit the certainty of the estate granted; and, in declarations of uses, it may declare a use to a person to whom no estate is granted in the premises; but that in a deed of bargain and sale, anything in the habendum repugnant to the premises is void. In Jackson v. Ireland ( 3 Wend. 99 ) the Court say, that no doubt the premises of the deed must prevail when the habendum clause is inconsistent with it. The habendum in this case was : “To have and to hold the same (land) to the said parties of the second part, their heirs and assigns, in the manner mentioned in the said last will and testament of Thomas Ireland, deceased.”' The habendum, said the Court, enlarges and explains, but is not inconsistent with the previous part of the instrument. But it seems to be agreed by all the cases, that where the habendum is irreconcilable with the premises, the premises must prevail. (4 Kent, 519; 2 Black. 241 .) So an illustration is given by Blackstone, of a grant of the whole estate by the premises, and a limitation of a less estate by the habendum. The limitation is void. (Id.) So it is held that after words of grant in the usual form, any restriction upon the use of *52 the land by the grantee is void; or as the doctrine is expressed by the Court of Appeals of New York, in Craig v. Wells (1 Kern. 322). “ The prohibition is inconsistent with the title conveyed by the deed, and is clearly void. If one conveys land in fee simple, and neither excepts any part nor reserves anything to himself out of it, but restricts the grantee to a particular use of the land, this restriction is void, as repugnant to the proprietary rights of an owner in fee. Such a restriction may be imposed, and may be good as a condition or covenant, but in no other form.” In this case the prohibition was of the use of certain water for mill purposes. So in the same case it is said, “ that an exception or reservation to a third person, not a party to the deed, is void. (Shep. Touch. 80; Co. Lit. 47 A; Moore v. The Earl of Plymouth, 3 B. & A. 66; Hornbeck v. Westbrook, 9 Johns. 73 .) The saméis true of a condition in favor of a stranger to the deed. (Jackson v. Topping, 1 Wend. 388 ; Co. Lit. 214; Shep. Touch. 120.) ”

In Hornbeck v. Westbrook, supra, a proviso appeared in a deed, that the inhabitants of Rochester should be allowed to cut and carry away wood from the premises conveyed, and under this clause the defendant justified, etc. The Court, in passing on the deed, said : “ The proviso in the deed was null and void. The inhabitants of the town of Rochester were not incorporated so as to be competent to take an estate in fee. A grant to them would have been void for uncertainty, in like manner as a grant would be void to the church wardens of a parish, or to the inhabitants of Dale, or to the commoners of such a waste. (Shep. Touch. 236; Co. Lit. 3 A.) It was decided, at the last term, that a grant to the people of the county of Otsego was void for the same reason. (Jackson ex dem Cooper, etc. v. Cary, 8 Johns. 385 .) The grantors in the deed of 1728 were seized in fee, as private individuals, and were competent to convey in fee the common lands of the town of Rochester. This was so settled in the case of Jackson v. Schoonmaker ( 2 Johns. 230 ). And if the inhabitants are incompetent to take an estate at law by that name, a reservation to them in a deed in fee to a third person would be equally void. But such a covenant or reservation to any third person would be void. A person who is not a party to *53 a deed cannot take anything by it unless it be by way of remainder. The grantor cannot covenant with a stranger to the deed. This is an acknowledged rule of law. (Salter v. Kidgley, Carth. 76.) In Whillock's case (8 Co. 69) it was admitted that a reservation in a deed to a stranger was void. If this proviso had any legal operation, it could not have vested a right in any other persons than those who were at the time of making the deed inhabitants of Rochester. There were no words of perpetuity, and the inhabitants were not an incorporated body, so as to be enabled to transmit a privilege to their successors. If it was anything, it was a personal privilege, and confined to the then existing inhabitants.”

What effect this doctrine would have upon the See Tup Company—an unincorporated body or association of Chinese, some fifteen thousand in number—if they had been directly mentioned or provided for in this deed, we need not consider. For, conceding that a trust in their favor or in favor of their trustees, if declared in any part of this deed, could be enforced, we are met by the objection that no such declaration has been made.

It is plain from the authorities already cited, that the legal title does not vest in this company, nor in their trustees, and it is equally clear that a mere limitation upon the use, or a direction as to the manner of using this property so conveyed, is not binding, for this is fully within the principle of the case in 9 Johns. and 1 Kernan, supra. The only question then is, was this a trust; for we think the better doctrine at this day is, that a deed of bargain and sale may be upon trust in favor of a third party, if words expressive of that intent be used. Are there such words here ? And this brings us to consider what is necessary to the creation of a trust. First, there must be a cestui que trust; and, secondly, an interest in the property conveyed, or some right or profit growing out of it. These things the deed must show. We think it clear that Athaie was not intended to be made trustee for the grantors in this deed. The deed, it seems, was in form an' ordinary conveyance, on full consideration for the property, and nothing is shown suggestive of an interest or concern on the part of the grantors, that the property should be devoted to the purpose indicated. It is not inti *54 mated that Athaie was to hold this property as trustee for the See Yup Company, for there are no words of grant to them or in their favor. On the contrary, the clause of the deed merely provides that the land, the legal title of which was vested in Athaie, was to be held by him to the use of (or to be used for) a Chinese church, etc., under his direction, according to the rules of the See Yup Company. It is as if the deed read: “ This property has been sold and is conveyed, on a full consideration, to Athaie, who is to use the premises for the purposes of a Chinese church, to be under his direction as superintendent of the See Yup Company, according to the rules of the company.” But this mere direction in the deed, as to the manner in which the property, absolutely conveyed, shall be used by the grantee, neither qualifies the title nor raises a use or trust. It might as well be said, if the deed provided in the same connection for the use of the property for a lyceum or a musical hall or a market, under the direction of the town authorities, that this would create a trust on behalf of the town. The ownership of the property in the grantee would be entirely consistent with this use of it according to this direction or these rules; and, besides, there seems to be no covenant on the part of the grantee, to follow this provision or direction in the deed. The See Yup Company are not mentioned, as parties or beneficiaries, in the deed, nor does it appear that they had any interest or connection in or with this school or church.

What the rules referred to are we are not advised. There is no intimation in the deed that the See Yup Company paid any money for this property, or that it was any part of the business of the association to build or superintend churches, or establish or conduct schools, etc. The fact stated or intimated, that Athaie was to superintend or direct the church or its affairs, or that he was superintendent of this association, or that this direction was to be according to the rules of this company,' certainly does not give or show title, legal or equitable, in this company, or any trust on their behalf or for them. The language is perfectly consistent with full ownership in Athaie. The designation of the use for which the property was conveyed may show the motive of the conveyance or *55 of the purchase, but does not create a trust in the See Yup Company which they can enforce in equity. Suppose the deed had been to A, to have and to hold for the use of a hospital under the superintendence of A, according to the rules of the Howard Association ; would this language create a trust ? If so, who would be the cestuis que trust? And, especially, would it create a trust under deed of bargain and sale, on full consideration, passing title from grantor to the grantee ? Although it is held that no formal words are necessary to create a trust where the intent is apparent in the instrument, yet this intent must be unequivocal. Thus, in Hill on Trustees, 66, it is said: “ For this purpose it is by no means necessary that the donee should be expressly directed to hold the property to certain 6 uses,’ or 6 in trust,’ or as ‘ trustee;’ although such terms, having a defined and technical meaning, are more usually as well as more properly employed. It is one of the fixed rules of equitable construction, that there is no magic in particular words; and any expressions that show unequivocally the intention of the parties to create a trust will have the same effect. * * In all eases, however, the fiduciary words must be imperative on the donee; and if they confer a mere power or authority, and leave it entirely at his discretion to apply or not to apply the gift to the designated purpose, no trust will be created.”

It is enough to say that we can find in the language employed in the clause of the deed already quoted no such “ unequivocal intent.” We must hold, therefore, upon the facts of this case, that the legal title was in Athaie ; and that it does not appear that the See Yup Company had any equitable title to or interest in the property.

If the deed were not so drawn to represent the real facts, then a different course of proceeding must be taken by the company to get the benefit of this' fact. It is not necessary for us to consider here, whether if the See Yup Company were in possession of this property at the time of this Sheriff’s sale, and the deed on which they rely, as creating an equity in their favor, were drawn as.it is by mistake—this mistake may now be corrected so as to conform it to the original design, and thus to secure the property against *56 the plaintiff here; or if the purchaser at the Sheriff’s sale had express notice of the claim or title of the company, whether this would make any difference.

Several very important questions arise in this case, which have not been argued : 1. Whether, if the purchaser at Sheriff’s sale had notice of an equitable defense on the part of the company when he purchased at the execution sale, his vendee is charged with this notice, under the facts in this record ? (It may here be observed that no proof of payment of purchase money has been shown, apart from the recital of the deed from Caney, the Sheriff’s vendee, to plaintiff. If there had been, is a party deriving title from the vendee at a Sheriff’s sale a Iona fide purchaser, within the protection of the rule—his vendor being charged with notice ?) If the See Yup Company paid the purchase money, and the purchase was agreed originally to be made for them, and Athaie took the deed in his own name, does a resulting trust arise from these facts in favor of the company ? And, if so, could such trust be set up in this case by the defendant in defense of this action ? And could it be introduced under these pleadings ? And would the fact of the company’s entering into possession, making improvements, etc., and being in possession at the time of the judgment, Sheriff’s sale, and Caney’s conveyance to plaintiff, be notice to plaintiff of this equity, especially in connection with the phraseology of the deed ? And what effect, in this respect, would express notice of these facts have upon the rights of the parties ? 2. What is the effect, under our system, of a sale of land under execution, to the execution creditor ? Does it pass any greater title in the premises than that actually held by the defendant in execution ? (See the case of Hunter v. Watson, 12 Cal. 365 .) We are unwilling to pass definitively upon questions of such importance without further argument; and the record does not enable us to consider them now; for the referee ruled out testimony offered to prove the payment of the purchase money by the See Yup Company. This testimony, we think, should have been admitted, and the question limited to the effect of it.

The Court below erred in dismissing the plaintiff’s suit upon the *57 facts presented. We think it better to remand the case, that it may be fully tried; and for that purpose an amendment of the pleadings may be had by either party, if desired, and the Court thus enabled to find the facts as they may be presented, and give judgment upon the entire case made.

Ordered accordingly.