142 CASES IN THE STJPEEME COURT Shall as ad. et al. vs: Biscoe et al. [July s, hn, In -o s 3 Flo rner SHALL AS AD. ET AL. VS. BISCOE ET AL. Mere delay to sue out execution during the time prescribed by law for the continuance of the judgment lien, would not of itself, be sufficient to displace the hen nor would the issuance and return of an execution without action, by order of the plaintiff, discharge tbe lien, or postpone it in favor of a subsequent judgment lien: ( Trapnall Ts: Richardson et al:, 13 Ark: 551; Watkins et al: vs: Wassell. 15 Ark: 90.) The vendor of land has, in equity, a lien for the purchase money, not only against the vendee himself, and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid. and this, though, there is no special agreement that there shall be a lien upon the land for the purchase money, and notwithstanding the vendor conveys the land by deed, and takes the note or bond of the vendee for the purchase money. (14 Ark. Rep. 634.) But where the vendor of land conveys it to the vendee by deed, taking his note for the purchase money: an assignee, by the mere assignment of the note, would not be subrogated to the vendor's lien upon the land for the payment of the purchase money, to enforce payment of the note. (Quere:
OF THE STATE OF AREAFTSAS Term, I.S56 I Shall as ad, et al: vs: Biscoe et al, would the vendor: in such case, if forced to pay the note as assignor, legain his lien, or would he lose his lien by taking securit y for the purchase mone y ? See the adjudications of the several States collated in the opinion:) The jndgment of a Court of concur tent, co of exclusive jurisdiction is not conclusive of any matter which came collaterall y in question, nor of any matter to be inferred by argument from the judgment , and so, where the trustees of the Real Estate Bank—W: being one of them—filed a bill ogainst the vendor and vendees of land to obtain satisfaction of a judgment rendered in favor of the trustees against the vendees for the debt due upon the sale and purchase of the land, by being subrogated to the vendor's lien, and obtained a decree to enforce the lien; W. is not thereby estopped tn set up a title acquired, before the bill was filed, by pur-chas under a prior judgment, which was not called in question or determined by the bill and decree—no question as to the lien of such prior judgment, nor as to the title acquired by W as pocellaser under it: being before the Court:
IV, one of the trustees of tlw Real Estate Bank, purchased one half interest in certain lots at judicial sale under a judgment having a prior hen; aftei ari1s, W, with his co-trust eps fil pd two bills to fix hens upon the same lots and enforce satisfaction of junior judgments in favor of the Bank, but which had been rendered before the purchase of the lots by W. The trustees obtained decrees for the sale of the lots; caused them to be sold and purchased in their name; took deeds for them, had the sales confirmed and deeds recorded; and in each ease made the purchase with the means in their hands as trustees, W,, with the means and opportunity of ja-wwing his own acts and tb.se of hi q vo-trustees in the premises, and with a full knowledge of his tights, is silent, during the whole proceed-ings, as to his own claim -geld, that under the circumstances, neither W, nor those claiming under him can be heard in a Court of equity to assert his title against the title of the trustees.
Appcat Pulaslo (ourt 10 Clumeery: The Hou \V I LUAu I r.F FLEE, Circa it Judge. Watkins & Gallagher for the al-melt-Ink. Dad lint the flank, if she ever had am, lien upon the pi operty in dispute, waive and lnqo the same by accepting the bill of exchange, with a new and additional security, in payment of the note assigned to her and which was given for the property Taking. a note, bill or bond with a distinct security is evidence that the vendor does not repose upon the lien, but upon rm independent security, and discharges the lien. 4 Kent Cent see. 5R, p 152 (2 Ed,) ; Gilman vs: Brim n, 1 Mason 214 Bagley vs:
144 CASES IN THE SUPREME COURT Shall as ach et aL vs. Eiseoe et al. [July Greenleaf, 7 Wheat. 46 ; Moore et al. vs. Holcombe et al., 3 Leigh 597 ; Brawley vs. Catron, 8 id. -522 ; Campbell vs. Bald-win, 2 Humph. 948 ; 3 id. 616 ; Burke et aL vs. Gray et al., 6 How. (Miss. ) Rep. 597 ; Foster vs Trustees of the Atheneum, 3 Ala. 302 ; See Annotations of Wallace in the American notes th Leading eases in Eq. p. 241 to 251. c' Did Walters by joining in the bill filed b y the trustees ( of whom he was one ) to inforce their lien against Johnston, Hutt and Field, and Byrd, estop himself from afterwards setting up any title to the property in himself ? He did not: he acted of-ficially, and was in his own iight no party to the decree. Jack-son vs. Griswold, 4 Hill 598 ; State Bank vs. Robinson et al., 13 Arks. 318 et sep. ; Douglas vs. Howland, 24 Wend. 35 ; Grant a dm. vs, Ashley & Buchanan, 7 Eng. 762 ; Faulkner et al vs. Thompson et al. 14 Ark. 481 ; Gardiner vs. Milling 5 Greenlf. 140
3. The lien of Farrelly's judgment was not postponed by return of the first execution issued thereon unexeented by his or-
der. Wassell et al. vs. Watkins et al., 15 Ark. Rep. 90. Trap-nail , vs. Richardson & Waterman, 13 Ark. 551 ; Rankin yr-, Scott, 12 Wheat 177. Pike & Cummins, for the appellees. The first question is as to the subrogation to the vendor's lien. Byrd sold to Hutt & Johnston, executed deed, and then, to get the purchase money, signed a joint and several note with
them, for discount, on which he is still liable, or on the bill by which it was renewed, and to which also he was a party, which is the same thing. Notwithstanding his deed, Byrd retained his lien. Ross vs Whitson, 6 Yerger 50. Outtan vs, Mitchell, 4 Bibb 239. Eu-bank vs. Poston, 5 Monr. 987. White vs Casanare, 1 Harr. & John. 106. Ghiselin vs, Ferguson, 4 id, 552. Graves vs. McCall, 1 Call 414. Galloway vs. Hamilton, 1 Dana 576. Hundley vs. Lyons, 5 Munf. 342, Wynne vs. Alston, Dev. Eq. 162. Henderson vs. Stewart, 4 Hawks 256. Watson vs. Wells, 5 Conn. 468. Greenup vs. Strong, 1 Bibb 590. Meek's Heirs vs. Eaby, 9 J. J. Marsh. 339. Voorhies vs. Sustone, 4 Bibb 354, Garson
or TEE STATE OF ARKANSAS. 145 Term , 1856] Shall as ad et al vs Biseoe et al. vs. Green, J. C. R. 308. Bailey vs. Greenleaf, 7 Wheat. 46, 50. Warren vs. Van Alstyne, 3 Paige 513, Kennedy vs. Woolfolk, Hayw. 197. Duval vs. Bibb, 4 Hen. & Munf, 118. Garson vs. Green, 1 J. C. R. 308. Cole vs. Scott, 2 Wash, 141. Brugess vs. Wheate, 1 W_ Bla 150, S C: 1 Eden 211, 2 Stor y 's Eq, §§ 1217. it makes no difference whether the estate rs actually Pon-veyed, or only contracted to be conveyed. 2 Story's Eq. § 1218. Smith vs. Hubbard, 2 Dickens 730. McLeain vs. McLellan, 10 Peters 625, 640. Dodsley vs. Yarley,-632, 633. That lien is valid against the vendee, purchasers from him with notice, and all parties having notice that the purchase money has not been paid. Clark vs. Hunt. 3 J. J. Marsh. 557. Roberts vs_ Salisbury, 3 Gill & Johns 425, Blight's Heirs vs. Banks, 44 Monr. 198. The assignee of a bond for the purchase mopey has a lien on the land, if the assignor had. Kenney vs. Collins, 4 Litt. 289. Eubank vs. Poston, 5 Mon 287. Eskridge vs. McClure, 2 Yerg. 84. Edwards vs. Bohannan, 2 Dana 99. Johnston vs. Gwathmey, 4 Litt. 317. Taking a security for the payment of the purchase money is Pot, of itself, a positive waiver or extingnishment of the lien. Prtma Mete the purchase illoppy 1,4 a lien, and it lies on the pnrchaser to show that the vendor agreed to waive it. Story's Eq. § 1226, and Notes. Mackreth vs. Symmons, 15 Yes. 342. Nairn vs: Prowse, Il Ves. 759. Garson vs. Green, 1 J. C. R. 308, 4 Kent 152. Hughes vs. Kearney, 1 Seh. & Lef. 135. Saunders vs. Leslie, 2 Ball & Beat-L. 514. Taking bills of exchange, drawn on and accepted by a third person, or by purchaser and a third person, is not a waiver of the lien, hut merely a mndp crf payment_ Hughes vs. Kearney, 1 Sch. & Lef. 135. Gibbons vs. Baddall, 2 Eq. Ab. 682 n. Grant vs. Mills, 2 Yes. & E. 306. Cooper vs. Spottiswoode, Taml. 21. Ex parte Peake, 1 Madd, 349. Ex parte Loaring, 2 Rose 79. Saunders vs. Leslie, 2 Ball & Beatt. 514. Winter vs. Lord An-son, 3 Russ, 488. The doctrine may considered settled, that taking a ilotP. bond or covenant of tbe vendee himself is no waiver of the lien.
146 CASES IN THE SUPREME COURT Shall as ad, et al Biscoe et al. [July But taking a note, bill or bond, with a distinct security, or taking a distinct security exclusively by itself, either in the shape of real or person property, from the vendee, or taking the responsibility of a third person, is evidence that the vendor woes not repose on the lien, but upon an independent security, and it discharges the lien? Gilman vs. Brown, 1 _Mason 212, Brown vs. Gilman, 4 Wheat. 290. Fish vs. Howland, 1 Paige 20. Stafford vs. Van Renssaellaci, 9 Cowen, 316. 4 Kent Com. 151 to 153.
Was the bank entitled to be substituted to Byrd's lien ? The doctrine of substitution is one, principally, of recent growth in the English and American law. The first general principle on the subject is, that "if several persons are indebted and one makes payment, the creditor is bound in conscience, if Mit by contract, io give the part), paying the debt, all his remedies agaiubt the other debtors." Stirling vs. Forrester, 3 Bilgb 590.
A surety paying the debt is put, under sonic circumstances, in the place of the creditor So, it a surety has a counter bond or security for his principal, the creditor will be entitled to tlie benefit of it, and may in equity reach the security, to satisfy the debt. 1 Story's Eq. sec's 501, 502; Hayes vs. Ward, 4 J. C. R. 130; 1 J. C. R. 413; Stevens vs. Culver, 1 J. C. R. 430; Mille] vs. Ord, 2 Binn. 382 , Aldria -vs. Cooper, 8 Yes, 388; Ex parte Rushforth. 10 Yes. 409. Wright vs. Morley, 11 Yes. 22; Enders vs, Brune, 4 Rand. 438.
The representatives of Walters cannot be beard to deny that tbe bank was entitled to the lien claimed by the bill of the trustees against Hutt, Johnston, and Byrd. In that case the trus-
tees,Walters included, expressly claimed such a lien from June, 1839, and that was a cinestion to be adjudged in that case. The Court, with all the parties before it, upon contestation, and the point being directly in issue, expressly adjudged that such a lieu did exist, and decreed its enforcement. That was res adjurli-eata, and Walters was forever concluded by it, being a party to the suit and expressly claiming that such should be the adjudi-cation:
OF TnE STATE OE ARKANSAS. 147 Term, 1S5O] shall aq ad et al vs_ Biscoe et al. Of comse, if Walters was concluded by the adjudication thai such a lien did exist, his icprescntatives, as well his devisees as his executor, are equally concluded. That is a fundamental principle, 1 Greenleaf § 523. And, if there was such a lien, as was adjudged at his instance, lie was bound to know it, because as a trustee he must be presumed to have known the whole affairs of the Bank, with winch it was his business to make himself acquainted, as well when he purchased, in 1843, then having been many months a trus-tee, as when lie filed the bill aleging the lien. Besides, if he claimed against the lien, he should have set lip
his claim in the suit which he aided to institute. Failing to bring it forward then, it is too late now. A_ record is not held conclusive as to the truth of any allegations which were not material nor traversable; hut as to things material aud traversable, it is conclusive and final. The general rtilw was laid down with admirable clearness, by Lord Chief Justice De Gray, in The Duchess of Elington's Cases, 20 How-ell's St, Trials 538, and has been repeatedly confirmed and fol-lowed, without qualification: especially in Harvey vs. Richards.
1 -4all. 220, and in Ribsliam vs, Didkhan. Watts 183. That role is: "That the judgment of a Conrt of concurrent iiirisdiction, directly upon the point, is, as a plea, a bar ; or, as evidence, conclusive, between the same parties, upon the same matter, diiectly in question in another Court." Arnold vs. Ar-nold, 17 Pick 3. Cowen's Phillips, Notes 557, 558, 5131, 5811 - 7 - 8. A former iudgnient is not an estoppel. It is a bar to future
reovery in any Court, on the same point, hetween the same partles and privies, until reversed; and as much a bar in chancery as at law, It is rc9 aclj ujicath—and taken to be absolute
and incontrovertible truth. Killheffer vs. Herr, 17 Serg. & Rawle 319. Marsh vs. Pier, 4 Rawle 273. Laivrence vs Hunt, 10 Wen d. 80. The finding' of a Chancery Court, as to a particular fact, is, though nnt a bar, yet ponolnsive, as evidence, in a subsequent suit between the same parties, at law, for 3 distinct object, of thc facts foimd by the Chancellor. Hopkins vs. Lee, (3 Wheat
148 CASES IN THE SUPREME COURT Shall as ad, et al. vs. Biseoe et al [July 109. Betts vs. Starr, 5 Conn. 550. Coit vs. Tracy, 8 Conn. 268. Lessee of Wright vs. Deklyne, 1 Peters C. C. R. 198, 202. A judgment or decree is not only final as to the matter actually determined, but as to every other matter which the parties might have litigated in the cause_ Le Gnen vs. Goeuvernenr, 1 J. Cas. 436. A junior mortgagee, made a party to the bill of the elder, and neglecting to defend, will be barred. Cooper vs.
Martin, 1 Dana 23. See also, Grant vs. Button, 14 J. R. 377. Loomis vs. Pulver, 9 J. R. 244, White vs, Ward, 9 J. R. 232_ While Walters held all the claim and title that he ever had, after he had purchased under execution, perhaps and probably buying the property for almost nothing, on account of this very
claim of the Bank, he joins with Ins co-trustees in asserting, pleading and maintaining a lien upon it, paramount to his own and to all others. He neither prefers nor alludes to any claim of his own: He obtains a decree in favor of himself and his co-trustees, for the exclusive benefit of the Bank's creditors, recognizing and decreeing such paramount lien, and directing' a sale of the property nnder it : at the sale he unites with his co-trus-tees in buying the property under the decree, pays the purchase money out of the funds of the Bank, and has a deed made to himself and his co-trustees Again he files another bill, asserting another lien, obtains another decree, has another sale, and
again purchases and takes deed to himself and his co-trustees, In the first suit and decree one lot was omitted, by mistake, as is apparent. He remedies that by the second bill, under which all the lots are sold; for after that sale and purchase the lien on lot 10, by subrogation to the vendor, united with the title obtained by decree and sale enforcing the lien of the levy; and yet it did not merge ; but a Court of equity will keep the original lien separate from the after acquired title, if it were necesary in order to cut out Walter's intermediate claim. James vs, Johnson, 6 J. C. R. 423. Starr vs. Ellis, id. 395. Preston on Merger 212. Duke of Chandon vs. Talbots, 2 P. Wms. 604.
Among the many grounds on which these proceedings precluded any future claim on the part of Walters, or any person claiming under him by devise or descent, is the concealment of
;1777' OF THE STATE OF ARKANSAS. 149' Term, 1856] Shall as atl. et al: vs: Biscoe et al, his own title, and his silence in regard to it. 1 Story's Eq. 389 ' Wendell vs. Van Rensselaer, 1 ,T. C. R. 354 ; Storrs vs. Barker, id, 166 ; Bright vs. Boyd, 4 Story 478. 1 Story's Eq. sec. 385 Pickard vs. Sears, 6 Ad. & El. 474.
Mr, Chief Justice ENGLISH delivered the opinion of th_ eo u0r , 1 On the 7th of July, 1849, Henry L. Biscoe and others, residu
ary trustees of the Real Estate Bank, filed a bill in the Pula ski Cirouit Court, against Thomas W. Newton, as executor of Ebe
nezer Walters, deceased, John Hutt, John W. Johniton, Wm. Field, Richard C. Byrd, James Lawson, Francis Pitcher, Sackett J. Bennett, David J. Baldwin, Arthur Hayes, Virginia Lemon and Ellen Lemon, alleging, in substance, as follows : On the 21st May, 1839, Richard C. Byrd, being the owner in fee, of lots 10. 11, 12, in block 1, East of the Quapaw line, Pope's addition of Little Rock, sold them to John W. Johnston and John Hutt, for $4,500, and by deed, executed by himself and wife, with general covenants of warranty, conveyed the lots to them, which deed was filed for record on the 24th of the same month, and is exhibited.
In payment for the lots, Johnston and Hutt made their note to Byrd for $4,500, dated 1st May, 1839, due at S months, negotiable and payable at the Real Estate Bank, which Byrd en-dorsed, and the Bank diseounted on the 13th of June of the same year, paying to him the proceeds.
At the maturity of the note, in order to renew it, Johnston and Hutt ( on the 4th January, 1840,) drew a bill in favor of Byrd, at six months, on the Canal and Banking Company, New Orleans, for $4,800, which Byrd and Robert W .Johnston en-dorsed, and the Real Estate Bank discounted, and applied the proceeds first to the payment of the note, and paid the TPRidUP to John W. Johnston_ The bill, at maturity, was protested for non-p yMent, etc.
The Real Estate Bank brought suit on the bill, iu Pulaski Circuit Court, and on the 22d June, 1841, obtained judgment against Hutt, John W. Johnston and Byrd for the amount the bill. The note, bill and judgment are exhibited.
150 CASES IN THE SUPREME COURT Shall as ad, et al: vs: Biscoe et al. [July On the 241 April, 1842, the Bank made a general assignment of all her assets, including the judgment, and her lien npon the lots for the payment thereof, to trustees for the benefit of credi-tors: which is exhibited. Ebenezer Walters became one of such trustees b y appointment under the deed, 3d of January, 1843, and acted as such,
receiving pay for his services, until he died, 14th June, 1849. On the 29th July, 1844, the franchises of the Bank were seved into the hands of the State, by judgment Cal Tto Warrant() issued by this Court.
On the 2d January, 1845, the trustees of the Bank, including Walters, filed a bill on the chancery side of the Pulaski Circuit Court, against Hutt, Johnston and Byrd, to subject lots 11 and 12 to the satisfaction of the said judgment on the protested bill, inadvertently omitting lot 10) claiming the benefit, by substi-tution, of Byrd's lien upon the lots, as vendor, for the purchase money. On the 9th of June, 1845, the trustees obtained a decree pre confes a so recognizing-their claim, declaring the lien in their favor, as the 13th June, 1839, and decreeing payment of the judgment by a day fixed, and un default, that lots 11 and 12 be sold, by David J. Baldwin, Commissioner, to satisfy the
debt, etc. On the 27th Oct. 1845, the lots were sold under the decree, and purchased by the trustees, including Walters, for $55, On the 15th December following, the commissioner made his report of the sale to the Court; and executed a deed conveying the lots to the trustees, acknowledging it before the Conrt; and on the same day, it was filed for record, etc. The bill, de-dire, irputt of sale, and auud otu exhibited,
That the omission of lot 10 in all of said proceedings, was a mere misprision of the attorney for complainants, caused by insufficient information afforded him by the trustees, and especially Walters, who was the resident trustee at Little Rock, and whose peculiar duty it was to attend to the enforcement of the lien and the collection of the debt, etc., etc. On the 15th December, 1845, upon the application of the trustees includmg Walters, the report of the commissioner was
OF THE STATE OF ARKAI\ SAS. 151 Term, 1854] Shall as ad, et aL vs. Biscoe et al: appioved and the sale of lots confirmed by the Court. The record of the confirmation is exhibited. On the 3d of December, 1842, the Rehl Estate Bank recover
ed a judgment in Pnlaski Circuit Court, against John W. John-ston, John Hutt and WHT Field, for $2,070, debt, and interest,
etc., which is exhibited. On the 31st December, 1842, execution was issued on this judgment to the Sheriff of Pulaski, returnable to March term, 1843, which, on the day it was issued, was levied on said lots 10, 11, and 12, as the property of Johnston and Hutt, who claimed the benefit of the appraisement act then in force, and the lots failing to sell for two thirds of their appraised value, the fi. fa.
was retunied with the facts endorsed. The execution and re
turn are exhibited. On the 25th of September, 1844, after the assignment of the Bank, and after her charter had been seized upon quo warrant°, the trustecs, including Walters, filed a bill in Pualski Circuit Court against Johnston, Hutt and Field, for the payment of this judgment, and the enforcement in equity of the lien and levy aforesaid, by sale of the lots, etc. The bill, etc. is exhibited. On the 19th April, 1837, John W. Onstott, administrator of Kirkwood Dickey, recovered a judgment in Pulaski Circuit Court, against John Hutt and Wm. Field, for $56 debt, and $3.62 damages, and costs. On the 31st of May, 1844, the judgment was revived on scire *las, and the hen thereof continued, etc. On the 14th of August, 1844, a fi. fa. issued on the revived judgment, to the sheriff of Pulaski comity, which on the same
llay, was levied on all the interest of John Hutt, in and to the undivided half of said lots 10, 11 and 12, and other lands ; which were sold 111111er the execution on the 21st of April, 1845, and purchased by Win. Field for $15; who received the Sheriff's deed therefor, on the 7th of May of the same year ; which, on the 31st of that month, was acknowledged before tbe Court, and filed for record on the 16th of June following, etc. The original judgment, judgment of revivor on scire facias, execution, return, deed, etc.. are exhibited. In the 18th August, 1845, an alias fi. fa. was issued to the
152 CASES IN THE SUPREME COURT Shall as ad et al vs Biseoe et al [July Sheriff of Pulaski, on the same judgment, levied on the same interest of John. Hutt in said lots, which was sold on the 21st of October, 1845, and purchased by Walters for $26, who, on the 16th December following, obtained the Sheriff's deed therefor, acknowledged in open Court, etc., and filed for record after-wards, etc. The deed is exhibited
On the 24th Oct., 1845, the trustees of the Bank obtained a decree on their bill against Johnston, Hutt and Field, ordering payment of the balance due on the judgment, that the three lots be charged with a lien therefor, as of 3d December, 1842, and that they be sold for the satisfaction thereof, etc. The lots were sold under the decree on the 27th April, 1846, purchased by the trustees, including Walters, for $45, who obtained the commis-sioner's deed therefor, duly acknowledged, etc., and recorded, etc. The report of the sale was approved and confirmed by the Court on the day the sale was made. The decree, deed, report , and confirmation of sale, etc., are exhibited. On the 12th Nov. 1840, Terence ,Farrelly obtained a judgment in Pulaski Circuit Court against I-Tardy Jones and John W. Johnston, for $150 debt, $17.20 damages and for costs. On the 17th January, 1842, a fi. fa, was issued on the judgment, returnable to March term following, which was returned without
action, by order of the plaintiff. On the 28th April, 1843, another f. fa. was issued on the judgment to the Sheriff of Pulaski county, returnable to May term following, which was levied on
the interest of John W. Johnston, in the three lots. There was a sale thereof on the 29th May, 1843, and Walters became the purchaser for $30, as he in his lifetime pretended, hut complainants aver that there was really no sale, and that no deed was executed to him under the prentended sale, until the 16th January, 1546, more than a year after the Sheriff, Lawson, had gone out of office, and nearly three years after the pretended sale. The deed of Lawson to Walters for •ohnston's interest in the lots, bearing that date, acknowledged in open Court, etc., and also the judgment, fa's. and returns are exhibited. Walters was a trustee of the Bank under the deed of assign-ment, from 8d January, 1843, until 14th June, 1849, when he
OF THE STATE OF AEKANSAS. 153 Term, 1856] Shall as ad. et al, vs. Biseoe et al
died, having made a will, appointing Newton his eYeeutor, and devising the residue of his estate, after the payment of his debts,
and a specific legacy to his mother, to Francis Pitcher, and Virginia and Ellen Lemon.
The executor of Walters, and the two devisees last named being the only defendants who appealed from the decree of the Court below, the allegations of the bill charging- the other defendants with liability for rents, etc., etc., need not be stated. The bill insists that the lien of the Onstott judgment had expired long before the set. fa. issued to revive it, and that the lien of the judgment of revivor dated only from the time it was rendered, (31st May, 1844.) That, though the Farrelly judgment was rendered, 12th Nov. 1840, no execution issued thereon
until the 17th January, 1842, more than a year and a day, and having been returned by order of the plaintiff without action, no other execution issued until 28th April, 1843, more than another year and day, where by, in any event, the lien of the judgment was postponed, etc. That, after Walters pnrchased John-ston's interest in the lots under the Farrelly judgment, May 29th, 1843, (long before which, he was a trustee for the Bank, ) and before he purchased Hutt's suposed interest, (21st Oct. 1845, ) he, with his co-trustees, filed the two bills aforesaid, one against Johnston, Field and Hutt, on the 25th Sept., 1844, and the other against Jolmston, Hutt and Byrd, 2el January, 1845 : in the former of which) he and his co-trustees elairund a licu nu thP
as Of 3d Deeember, 1842, and in the latter, a lien by snbstitution for purchase money, as of 21st May, 1839, and prosecuted both bills to decree, establishing the liens as claimed, and as in truth they did exist. The bill prays that the pretended liens of defendants be can-celed, and the title of complainants to the lots quieted, and for an aeount of rents, etc.
Newton, as the executor of Walters, answered the bill. He admits that the papers and records referred to in the bill arc correctly stated, and that the facts proved by them are true and admits the truth of all the allegations of the bill, except such as are specially denied, etc.
154 CASES IN THE SUPREME COURT Shall as ad: et al. vs. Biscoe et aL [July He cannot state whether the omission of the attorney of the trustees to include let 10 in the bill filed by him. claiming for the trustees the benefit of Byrd's lien on the lots for the purchase money, by subrogation, was occasioned by the neglect of Walters, or not The trustees having full confidence in their attorney, it was riot customary for them to superintend the prosecution of suits, examine records in relation to liens, or to give the attorney information in respect to such matters, unless called upon by him, etc., but all such matters were peculiarly under his management_ For these reasons, respondent does not believe that Walters had any knowledge of the claim of the trustees upon said lots, before he purchased the interest of Johnston therein, under the Farrelly judgment. But even if he had, respondent insists that he purchased under a lien prior and paramomit to the pretended claim of the trustees ; and such being the case, it was not a breach of trust or violation of duty in Lim to make such purchase, particularly as be did it for the purpose of partially indemnifying himself for large sums which he had before then paid as the security of Johnston, who was insolvent, etc: Respondent insists that Byrd having made an absolute con
veyance of the lots to Hutt and Johnston, was not entitled to any lien thereon for the purchase money, as against a stranger
or third parties, and consequently the Bank could not be suluogated to any such rights as against a purchaser under the judgment of Farrelly. Respondent does not insist that Walters obtained any title by
his purchase of Hutt's interest in the lots, under the Onstott judgment, but insists that by his purchase of Johnston's interest, under the Farrellv judgment, he became the owner of one Undivided half of said lots as against complainants. and all other persons. Respondent avers that a sale was in fact made to Walters imder the execution upon the Farrelly judgment, at the time, place and in the manner recited in the sheriff's deed exhibited with the bill. He admits that no deed was made to Walteis, under his purchase, until 16th January, 1846, as stated in the
OF THE STATE OF ARKAYSAS. 155 Term, 1856] Shall as all. Et al, vs, Biscoe et aL bill, but he avers that such delay was not intentional or design-ed, but a mere omission and oversight; and as the sale was returned upon the eyeention, be is unable to perceive how any one could be prejudiced by the delay. Respondent was informed and believed that Walters was under the impression that a deed had been made in pursuance of said sale during the return term of the execution, as was the custom of the sheriff and as soon as he was apprised of the omission, he caused the deed referred to in the bill to he executed, acknowledged and recorded. Respondeut admits that no execution issued on the Farrelly judgment until the 17th Janu ary, 1842, and that it was returned without action by order of the plaintiff therein; and that none other issued until '28th April, 1843, under which Walters pur-chased, but he insists that, as said sale was made within three, years from the date of the judgment, the lien thereof was not waived, or postponed by such delay. The cause was heard upon bill and exhibits, answer of New-ton, replication, and an agreement of the parties. that Walters had to pay upwards of $1,500 aq seeurIty of Johnston upon a ote execute d in 1840, and th at Johnston bad 11PPYI insolvent
since the year 1841 ; and that the object of Walters, in purchasing Johnston's interest in the lots, was partially to indemnify himself from loss on acemmt of money so paid for Johnston, etc. The Court decreed the relief sought by the bill, that the titles of defendants be cancelled, and the title of complainants to the lots quieted, etc , and referred the eaRe, to the master to tale art
account of rents, etc. Newton, and Virginia and Ellen Lemon appealed from the
decree. Afterwards, Newton died, and Shnall Was made a party, as administrator, etc., of Walters. The appellants claim no title under the Onstott judgment Lot they insist that Walters , pnrchased a valid title to Johnston's undivided half of the three lots, under the Farrelly juibment. This judgment was rendered 12th Nov. 1840, and Walters pur-ch ased under it 29th May, 1843. By Statute, (Dig. eh, PI, see,
1513 CASES IN THE SUPREME COURT Shall as ad, et al. vs Biseoe et al. [July 50 the lien of a judgment commences on the day it is rendered, and continues for three years, subject to be revived by scire facias, Ib. sec. 8 to 18.) The Farrell-sr judgment was the oldest record lien upon the lots, at the time Walters purchased, and he purchased before the expiration of the three years, and whilst the lien of the judgment was in full force. It is insisted by the appellees, however, that the lien of the Farrelly judgment was postmoned by his laches. That the lieu of the judgment obtained by the Bank against Johnston, Hutt and Field, 3d December, 1842, was continued and made specific by the levy upon the lots made 31st December, 1842, under the execution issued on this judgment ; and that inasmuch as the execution upon the Farrelly judgment under which Walters purchased, did not issue until the 28th April, 1843, the lien of the judgment was waived and postponed by the return of the first execution, without action, upon the order of Farrelly.
But this point has heretofore been adjudged against the appellees in Trapnall vs. Richardson et al., 13 Ark, 551, and Wat
kins et al. vs. Wassell, 15 Ark. 90. In the case last cited, Mr. Justice Walker, delivering the opinion of this Court, saniL "The statute continues the lien of the judgment creditor for three years, unless displaced by some act of the party. Mere delay to sue out process within the time would not of itself be sufficient for that purpose ; nor would the levying of process, and an order by the creditor, or his attorney, to return the process without selling the property, or to return process before it had been levied, neee66arily discharge the judgment lien. Such acts do not amount to an abandonment of the lien, or a release of the property, etc." These decisions are sustained by Rakin et al, vs. Scott 12th Wheat R 177.
The appellees also insist upon the following propositions: 1st: The Bank was subrogated to the lien of Byrd upon the lots for the purchase money.
2. As Walters so claimed as one of the trustees of the Bank, and on that ground obtained a decree and sale, he was thereby estopped to deny it, and could not controvert a decree obtained by himself asserting and recognizing that lien.
OF THE ST ATE OF APF-ANSAS. 157 Term, 1856] Shall as ad et al. vs. Risme et al.
3d. Walters, as one of the trustees, purchased the property twice for the creditors of the Bank, after fie had purchased for himself, each time bidding, and, by giving credit on the decrees: paying away their money, for the title, or supposed title obtabled by such purchase, and taking deeds to himself and en-trustees—he cannot, therefore, set up his previous title, even supposing it otherwise good.
1. Was the Bank subrogated to the vendor's lien? It is very well settled in England, and in most of the States of this Union, that, in equity, the vendor of land has a lien for the purchase money, not only against the vendee himself, and his heirs and other privies in estate, but also against all subsequent imrehasers having notice that the purchase money remains unpaid. The lien exists, although there be no special agreement for that purpose, and notwithstanding the vendor conveys the land by deed, and takes the note or bond of the vendee for the purchase money. To the extent of the lien the vendee becomes a trustee for the vendor and his heirs, etc_, and all other persons claiming under him, with such notice, are treated ns iu the same prodicamcnt. Tlie principle npon which Courts of equity have proceeded in establishing this lien, in the nature of a trust is, that a person who has gotten the estate of another ought not, in conscience, as between them to be allowed to keep it, and not pay the full consideration money. And third persons, having full knowledge that the estate has been so obtained> ought not to he permitted to keep it, without making such payment, for it attaches to them, also, as a matter of conscience and duty. It would otherwise happen that the
vendee might put another person in a predicament better than his own, with full notice of all the facts. Maekreth vs. Sym-mons, 15 Vesey 329. Sugden on Vendors, 856, 7th American Editien, and notes. 4 Kent's Com. 152. 2 Story's Equity, see. 789, 1219,1221,1224,1225. 1 Leading Cases in Equity, by White & Tudor,,Notes by Hare and Wal>, marg. p. 174 et seq., and cases eited Manly et a-. vs. Slason et al., 21 Verm. 271. where the English and American eases are cited. The same doctrine has been recognized in the Circuit and
158 CASES IN THE SUPREME COURT • ■Shall as ad, et al, vs. Biseoe et al. [July Supreme Courts of the United States, Gilman vs. Brown et al., 1 Mason 192 ; same case, 2 Wheat. 255. Bayley vs: Greenleaf et aL, 7 Ib. 46. Pintard vs. Goodloe et at, Hempstead's C. C. R.
503. It was also recognied by this Court in Moore & Cail admrs. vs. Anders, 14 Ark. R. 634, though Mr. Chief Justice Watkins, who delivered the opinion seems not to have been very favorably improssed with the doctrine. Treating of the lien retained by
the : vendor, who has executed his bond to make title to the vendee on payment of the purchase money, he says : "The lien reserved to the vendor, by means of such contracts, has none of the odious characteristics of the vendor's equitable lien for the unpaid purchase money, where having conveyed the legal title, ac;knowledging the receipt of the purchase money, he ought not to be heard to assert it against any subsequent purchaser or in-eumbrancer. without clear and unequivocal proof of the actual
notice." , There being no showing of any agreement to the contrary, in the record bef_ ore us, it follows that, notwithstanding Byrd conveyed the lots in question to Hutt and Johnston, by deed,
and took their joint note for the purchase money, he retained an equitable lien upon the lots for the payment of the purchase money, not only against them, but all subsequent purchasers,
ete„ with full notice, etc: The note was made to Byrd, but negotiable and payable at the Real Estate Bank, and upon Byrd's endorsement, the Bank discounted the note, and paid to him the proceeds: Was the Bank snbrogated to his lien upon the lots, for the payment of
the note - In Moore & Cail, ad'rs vs. Anders, this Court held that where the vendor does not convey the land by deed, but gives the vendee a bond to make him a title on payment of the purchase money, for which the vendee's note is taken, the vendor has a lien upon ,the land, in the nature of a mortgage, for the payment of the note ; and that an assignment of the note transfers the lien to the assignee, as an incident to the debt. But where
the vendor conveys the land by deed, taking the vendee's note
OF THE STATE OF ARKANSAS. 159 Term, 1856] Shall aa ad. et al. vs. Biscoe et al for the purchase money, the Chief Justice said: "The weight of authority no doubt is, that the equitable lien of the vendor is personal to him, and is not, unless under some peculiar equitable circumstances, assignable. We decline going into any such question, because it is not presented here, and is only noticed by way of contrast with the description of lien under con-sideration." The question which the Court declined going into in that case, comes directly before us in this. In Pollexfen vs. Moore, 3 Atk. 272, Lord Hardwick is reported to have stated, that the lien of the vendor does not prevail for the benefit of a third person ; yet his decree was, that a legatee in that Court was entitled to the benefit of the lien of the ven-dor. In Selby vs. Selby, 4 Russell 336, the Master of the Rolls held, notwithstanding the dictum, of Lord Hardwick in Polleyfen vs. Moore, that where the purchaser died, and the vendor was paid the purchase money out of the personal assets of the deceased, the simple contract creditors of the purchiiser stood in the place of the vendor with respect to his lien on the estate sold, against a devisee of the estate. These cases, however, are not directly to the point in question, nor have we been able to find an English decision directiv in point.
The American decisions are very much in confliet. Kentucky—The assignee of the note or bond for the purchase money, takes with it, all the lien which the vendor had upon the
land, etc. Eubank vs. Poston, 5 Monroe 2,86. Edwards vs. Bo-hannon, 2 Dana 98. Johnston vs. Gwatbany, 4 Littell 317. Kinney vs. Collins Ib. 289. Honore's Exr. vs. Bakewell et al., 6 B. Monroe 68. Ripperdon vs. Cozine, 8 Ib 465. In some of these cases the vendor had made the vendee a deed ; in others a bond for title, but no distinction is made between the eases in regard to the lien passing to the assignee with the note, ete.
Alabama follows Kentucky. But if the vendor assigns the note, without recourse upon him, the lien does not pass to the assignee. And where the lien passes by the assignment, and tbe note is returned to the vendor unpaid, be may enforce the lien. White vs. Stover et al., 10 Ala. 441 ; Roper vs. McCook, 7
160 CASES IN THE SUPREME COURT, Shall as ad. et al vs Biseoe et al [July 319; Hall's Ex. vs .Click et al., 5 Ili. 363 ; Kelly vs. Payne, 18 Ala. 373. Indiana follows Kentucky also. Brumfield et al. vs. Palmer,
7 Blackford 227; Lagow et al. vs. Badollet et al., 1 Ib. 416. But in these cases, the vendors did not make deeds to the vendees, but covenanted to convey on payment of the purchase money.
Texas. In Pinchain vs. Collard, 13 Texas 333, the Court, citing some of the authorities on both sides of the question, declines to express ally opinion as to whether the mere transfer of the note or bond given for the purchase money, passes the vendor's lien; but holds that where a third person is substituted for the vendor as payee in a note, given, as expressed on its face, for the purchase money, he will be entitled to the vendor's lien. To some extent, Dayden vs. Frost, 3 Mylne & Craig, 670, sustains this decision. Tennessee. En Eskridge vs. McClure et aL, 2 Yerger 84, the vendor made a deed to the purchaser, and took his bond for the purchase money, upon the face of which it was expressed that the land should be liable for the debt ; and it was held that the assignee of the bond had, in equity, the same lien that his assignors, the vendor, had. In Claibourne vs. Crockett, 3 Yerger 27, where the vendor gave a bond for title, and took the ven-dee's note for the purchase money, it was held that the mere assignment of the note did not transfer to the assignee the benefit of the vendor's lien. In Garm vs. Chester et al., 5 Yerger '205, the vendor made a deed to the vendee, and took his notes for the purchase money ; and it was held that an assignment of the notes did not transfer, but extinguished the lien. So, too, in Sheratz vs. Nicodemus, 7 Yerger 9. In Graham vs. Mc-Campbell, Meig's Rep. 52, Claibourne vs. Crockett was overrul-ed, and it was held that where the vendor gives his bond for title, and takes the note of the vendee for the purchase money, the vendor retains a lien upon the land, in the nature of a mortgage for the payment of the debt, and that an assignment of the note by him, transfers to the assignee, as an incident to the debt, the lien upon the land; but where the vendor conveys the land by deed, taking the vendee's note for the purchase money,
As■
OF THE STATE OF ARKANSAS. 161 Term, 1856] Shall as ad. et aL vs Biseoe et al. the lien is personal to the vendor, and is not 'transferred by an assignment of the note In Green et al. vs. Demoss et al., 10 Humphries 371, this distinction was approved and confirmed ; and it was held that where the vendor has conveyed the land by deed, the lien is a mere personal, equitable right in him, and not assignable ; but that the assignment of the vendee's note does not, ipso facto, extinguish the vendor's lien; but if he is
made liable upon his endorsement, or the note is returned to him unpaid, his lien reviews.
Mississippi—Holds, as finally held in Tennessee, that where there is a bond for title, the vendor's lien follows the note for the purchase money into the hands of an assignee. Parker vs. Kelly et al., 10 Sm. & Mar. 184. But where the vendor has conveyed the land, his lien does not pass by the assignment of the note. Briggs et at vs. Hill, 6 Howard 362.
Georgia—Holds that, upon principle, the vendor's equitable lien is not assignable. pit if it were, it must be assigned spe-
cially_ It does not follow the simple transfer of the note for the purchase money. Welborn et al. vs. Williams et al., 9 Geo. R. 86, 92.
Iowa : "The assignee of a note given for the purchase money of land, cannot in equity enforce the original lien of the vendor against the land. The equity arises to the vendor, but cannot be transferred." Dickinson vs. Chase et al., 1 Morris R. 492.
Ohio : The vendor's lien is personal, and does not pass to the assignee of a note given for the purchase money. Jackman vs. Hallo& et al., 1 Ohio 318; Tiernan vs. Beam et al., 2 Ib. 383; Bush et al. vs. Kinsley et at, 14 Ib_ 20 ; Horton vs Horner, 437. In these decisions, no distinction i4 taken between eases
where the vendor gives bond for title, and where he conveys by deed.
Maryland. In Schnebly et al. vs. Ragan, 7 Gill & John. 124, the Court seems to have inclined to the opinion that the assignee might get the benefit of the vendor's lien by express azreement; but held that where the vendor assigned the note
162 CASES IN THE SUPREME COURT Shall as ad, et al. vs Biscoe et al. [July for the purchase money, without recourse upon him, the lien was extinguished, being personal to the vendor. In Inglehart vs. Armiger, 1 Eland 519, and Moieton vs. Har-rison, Ib. 491, held, that the assignment of the note for the purchase money operates as a tacit relinquishment of the vendor's lien, and it can never be revived, unless he is made liable as assignor. Maryland Digest, p. 6S5. New York. In White vs. Williams, 1 Paige R. 506, Chancellor Walworth held, that the lien of the vendor did not pass, by implication, to the assignee of the note for the purchase money, but intimates that it might be transferred by special agreement. In HaHoek vs. Smith, 3 Barbour's S. C. R. 272, Strong, J., said : "If the note or bond ( for the- purchase money is assigned or transferred to a third person for his benefit, the security ( the lien of the vendor) is gone forever. The reason is, there is no peculiar equity in favor of third persons. But that does not apply where, as in this case, the transfer is only for the purpose of paying the debt of the vendor, so far as it may be available, and is, therefore, for his benefit. There, the equity continues." It would seem from the cases cited above, that the weight of authority is, that where the vendor conveys the land by deed, taking the note of the vendee for the purchase money. a mere assignment of the note does not transfer to the assignee the benefit of the vendor's lien upon the land for the payment of the purchase money. Tn the case now before us, the Bank seems to have taken the note, upon the endorsement of Byrd, in the ordinary course of business. There is no allegation in the bill that she contracted for the lien of the vendor, or looked to it as a security, when she discounted the note. If the Bank had been subrogated to the lien of Byrd, by his endorsement of the note to her, whether she lost the benefit of the lien by taking a bill of exchange, endorsed by Robert W. Johnston, in payment of the note, as insisted by the appellants— or whether the lien of Farrelly's judgment was superior to the lien of the vendor, the judgment having been obtained befor
OF THE STATE OF ARKANSAS. 163 Tenn, 1856] Shall as ad. et al. vs. Biseoe et al. the Trustees filed their bill to get the benefit of Byrd's lien— or whether, and to what extent, Walters was affeeted with notice of the vendor's lien, when he purchased the lots under the judgment—are questions which need not be determined, as we have decided that the Bank was not subrogated to the benefit of the vendor's lien. 2. The second proposition insisted on by the appellees is, that, inasmuch as Walters, as one of the Trustees of the Bank, claimed that the Bank was subrigated to the benefit of the vendor's lien, and on that ground, obtained a decree and sale of the lots, he was thereby estopped to deny it, and could not controvert a decree obtained by himself, asserting and recognizing that lien.
"The general rule on this subject was laid down with admirable clearness, hy Lord Chief Justice De Grey, in the Duchess of Kingston's case ( 20 Howell's State Trial's 538) and has been repeatedly confirmed and followed, without qualification— 'From the variety of cases, said he, relative to judgments being given in evidence in civil suits, these two deductions seem to follow, as generally true ; first, that the judgment of a court of concurrent jurisdietion, directly upon the point, is, as a plea, a bar ; or, as evidence, conclusive, between the same parties, upon the same matter, directly in question in another Court ; sec-ondly, that the judgment of a Court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in qnestion in another Court for a different purpose. But, neither the judgment of a concurrent not exclusive jurisdiction is evidence of any matter whieb oame onllaterally m question, though within their jurisdiction ; nor if any matter incidentally cognizable ; nor of any matter to be inferred by argument from the judgment.' 1 Greenleaf's Ev. sec. 528, et seq. Hibsham vs. Dul-leban, 4 Watts 190 ; Tiarry vs. Richards, 2 Gallison 216; Trammell et al. vs. Thurmond et al., 17 Ark. The bill upon which the decree was rendered, which is relied on as an estoppel by the appellees, was filed by the Trustees of the Bank, including Walters, against Hutt, Zrohnston & Byrd.
164 _ CASES IN THE SUPREME COURT Shall as ad. et al. vs. Biscoe et al. [July The object of the bill was to obtain satisfaction of the judgment which the Bank had obtained against them, on the protested taken by her in payment of the original note for the purchase money, etc. The Trustees claimed in that suit that the Bank should be subrogated to the benefit of Byrd's lien upon the lots, and obtained a decree to enforce the lien as against Hutt and Johnston, who had purchased the lots, but never paid for them, and as against Byrd who held the lien, etc. But in the meantime, and before the bill was filed, Farrelly
had obtained a judgment, which was a lien on Johnston's interest in the lots, and Walters had purchased under the judgment, and the bill and decree in no way determined whether the lien of Byrd could prevail against the intervening lien of Farrelly's judgment, and against the title of Walters as a purchaser under the judgment. These questions were not before the Court, and were not decided: and, as to them, the decree, under the above rule, could not be regarded as an adjudication, operating as an estoppel upon Walters. 3d. But after Walters had purchased Johnston's interest in
the lots, he, with his co-trustees, filed two bills to fix hens upon the lots, and enforce the satisfa ction of judgments upon them, dating back of his purchase ; obtained decrees, caused the lots to be sold, and purchased in the name of the Trustees took deeds from the commissioners, had the sales confirmed by the Court and the deeds put on record; in each case making the purchase with the means belonging to the cestui que trusts un
der the deed of assignment. While all these legal steps were
being taken in his name. Walters appears to have remained silent as to his own claim, with a full knowledge, as we must suppose from the record before us, of his rights. We cannot presume, from the pleadings and evidence in tbe cause, that Walters was ignorant ot the legal proceedings taken in his name to enforce the claims of the Trustees upon the lots It was his duty, as a Trustee, receiving compensation for his services, under the provisions of the trust deed, to attend to the collection of the debts, etc., of the Bank. He resided in Little Rock, where the Court was held, in which the bills were filed,
OF THE STATE OF ARKANSAS 165 Term, 1856] Shall as ad. et al vs Biseee et al, the decrees obtained, and where the lots were sold and purchased in his name, after being advertised in the public new-papers. Was he acting in good faith as a Trustee, tn remain silent as to his own claim, and join with his co-trustees in putting the trust to the expense of prosecutmg all the proceedings above referred to, and then to turn about and set up a personal claim which he bad permitted to sleep in the meantime, for the purpose of defeating the title which he had aided in procuring for the benefit of the creditors interested in the trust ? Can he, or those holding under him, and standing in his place, be beard in a court of equity to assert his title against the title of the Trustees, under all the facts and circumstances disclosed in the record before us ? We think not. •
If a man, having a title to an estate, which is offered for sale, and knowing his title, stands by and encourages the sale, or does not forbid it ; and thereby another person is induced to purchase the estate, under the supposition that the title is good, the former, so standing by, and being silent, will be bound by the sale ; and neither be, nor his privies, will be at liberty to dispute the validity of the purchase in equity 1 Story's Equity see. 385 Danley vs. Rector, 5 Eng. B212.
By the strongest analogy, the conduct of Walters in this ease operates as an estoppel upon him and his privies in estate. The deeree of the Court below is affirmed.
Absent, the Hon. Thomas. B. Hanly.