SHALL V. BIsCOE. VOL. 18 SHALL AS AD. ET AL. for the sale of the lots; mused them to be sold and purchased in their name; to dr deeds f m them; had v .
the sales confirmed and deeds recorded, and in each case made the purchase with i he means In their BISCOE ET AL. hands as trustees; W with the means and oppor-Mere delay to sue out execution during the time tunity of knowing his own acts and those of his ce-prescribed by law for the continuance of the judg-trustees in the premmes, aul with a full knowledge ment lien, would not of itself, be sufficittnt to dis-of his rights, is silent, during the whole proceed-place the lieu; nor would the issuance and return ings, as to his own claim. Held, that under the of an execution without action, by order of the circumstances, neither W. nor those claiming plaintifF, discharge the lien, or postpone It in ander him can be heard in a court of equity to favor of a subsequent judgment lien. (Trapnell v. assert his title against the title of the trustees. Richardson et al., 13 Ark. 551; Watkins et ai. v. Wast Appealfrom Pulaski Circuit Court in sell, 15 Ark. 90.) The vendor of land has, in equity, a lien for the Chancery. purchase money, not only against the vendee him-ON. WILLIAM H. FEILD, Cir-self, and his heirs and other privies in estate, but H also against all subsequent purchasers having cuit Judge. notice that the purchase money remains unpaid; Watkins & Gallagher, for the appel-and this, though there is no special agreement that • there shall be a lien upon the laud for the purchase lants. money, and notwithstanding the vendor conveys the land by deed, and takes the note or bond of the Pike & Cummins, for the appellee. vendee for the purchase money. (14 Ark. Rep, 'ENGLISI-1, C. J. On the ith [1149 634.) But where the vendor of land conveys it to the of July, 1849, Henry L. Riscoe and vendee by deed, taking his note for the purchase others, residuary trustees of the Real money, an assignee, by the mere assignment of the Estate Bank, tiled a bill in the Pulaski note, would not be subrogated to the vendor's lien circuit court, against Thomas W. New-upou the land for the payment of the purchase 143 . 1 q honey, to enforce payment of the note. ton, as executor of Ebenezer Walters, (Quere: Would the vendor, in such case, if forced deceased, John, Hatt John W. Johnston, to pay the note as assignor, regain his lien; or Wm. Field, Richard C. Burd, James would he lose his lien by taking semi, ity for the Lawson, Francis Pitcher, Sackett j. purchase money? See the adjudications of the several States collated in the opinion.) Bennett, David J. Baldwin, Arthur The judgment of a court of concurrent, or of ex-Hays, Virginia Lemon and Ellen Lemon, clusive jurisdictiomis not conclusive of any mat ter alleging, in substance, as follows : which came collaterally in question, nor of any On the 21st May, 1839, Richard C. matter to be inferred by argument front the judgment; and so, where the trustees of the Real Estate Byrd, being the owner in fee, or lots Bank—W. being one of them—filed a bill against 10, 11, 12, in block l , east of the Qua-the vendor and vertices of land to obtain satlsfac-paw line, Pope's addition of Little tion of a judgmeut rendered in favor of the trustees Rock, sold them to John W. Johnston against the vendee--; for the debt due upon the sale and purchase of the land, by being subrogated to and John Hutt, for S4,500, and by deed, the vendor's lien, and obtained a decree to enforce executed by himself and wife, with the lien; W. is not thereby estopped to set up a general covenants of warranty, con-title acquired before the bill was filed, by purchase veyed the lots to them, which deed under a prior judgment, which was not called in question or determined by the bill and decree—no was filed for record on the 24th . of the question as to the lien of such prior judgment, nor same month, and is exhibited. as to the title acquired by W. as purchaser under In payment for the lots, Johnston and it, being before the court. made their note to Byfd for W., one of the trustees of tho Real Estate Bank, Hutt purchased one-half interest in certain lots at judi-$4,500, dated 1st May, 1839, due at 8 cial sale under a judgment having a prior lien; months, negotiable and payable at afterwards, W. with his co-trustees filed two bills the Real Estate Blnk, which Byrd en-to fix lines upon the same lots and enforce satis-dorsed, and the bank discounted on the faction of junior judgments in favor of the Bank, but which had been rendered before the purchase 13th of June of the same year, paying ot the lots by W. The trustees obtained decrees to him the proceeds.
JULY TERM, 1856. SHALL V. BISCOE. At the maturil y of the note, in order to David J. Baldwin, commissioner, to renew it, Johnston and Hutt (on the 4th satisfy the debt, etc. On the 27th Oct., January, 1890), drew a bill in favor of 1845, thellots were sold under the de-Byrd, at six months, on the Canal and cree, and purchased by the trustees, Banking Company, NeW Orleans, for including Walters, for 955. On the $9,800, which Byrd and Robert W. 15th December following, the commis-Johnson endorsed, and the Real Estate sioner made his report of the sale to Bank discounted, and applied the pro- the court ; and executed adeed convey-ceeds first to the payment of the note, ing the lots to the trustees, acknowl-and paid the residue to John W. John- edging it before the court ; and on the ston. The bill, at maturity, was pro- same day, it was filed for record, etc. tested for non-payment, etc. The bill, decree, report of sale, and The Real Estate Bank brought suit deed are exhibited. on the the bill, in Pulaski circuit court, That the omission of lot 10 in all of and on the 22d June 1891, obtained judg- said proceedings, was a mere misprsi-ment:against Hutt, John 1V Johnston and ion of the attorney for complainants, Byrd for the amount of the bill. The caused by insufficient information af-note, bill and judgment are exhibited. forded him by the trustees, and espe-1501 *On the 2d April, 1842, the cially Walters, who was the resident bank made a general assignment of all trustee at Little Rock, and whose pe-her assets, including the judgment, Culiar duty it was to attend to the en-and her lien upon the lots for the pay- forcement of the lien and the collec-ment thereof, to trustees for the benefit tion of the debt, etc., etc. of creditors : which is exhibited. On the 15th December, 1845, Ebenezer Waltcrs became one of such npon the application of the trustees, by appointment under the trustees, including Ratters, the deed, 3d of January, 1843, and acted as report of the commissioner was such, receiving pay for his services, 'approved, and the sale of the p151 until he died, 14th June, 1849. lots confirmed by the court. The rec-On the 29th July, 1844, the fran- o rd of the confirmation is exhibited. chises of the bank were seized into the On the 3d of December, 184,2 the
liands of the State, by judgment on Real Es tate Bank recovered a judg-quo warranto iiJsued by this court. ment in Pulaski circuit court, against On the 2d January, 1845, the trustees John W. Johnston, John Hutt and Wm. of the bank, including Walters, filed a Field, for $2,070, debt, and interest, a bill on the chancery side of the Pu- etc., which is exhibited. laski circuit court, against Mutt, John- On the 31st December, 1842, execu-ston and Byrd, to subject lots 11 and 12 tion was issued on this judgment to the to the satisfaction of the said judgment sheriff of Pulaski, returnable to March on the protested bill (inadvertently term, 1843, which, on the day it was omitting lot 10) claiming the benefit, issued, was levied on said lots 10, 11 by substitution, of Byrd'S lien upon and 12, as the property of Johnston and the lots, as vendor, for the purchase Hutt, who claimed the bellefit of the money. On the 9th ofJune, 1845, the appraisement act then in force, and the. trustees obtained a decree pro confesso, lots failing to sell for two-thirds of recognizing their claim, declaring the their appraised value, the fi. fa. was lien in their faVor, as of the 13th June, returned with the facts endorsed. The 1839, and decreeing payment of the execution and return are exhibited. judgment by a day fixed, and on de- On the 25th September; 1844, after fault, that lots 11 and 12 be sold, by the assignment of the bank, and after
SHALL V. B1SCOE, VOL. 18 her charter had been seized upon quo lots be charged With a lien therefor, as warranto, the trustees, including Wal- of 3d December, 1842, and that they be ters, filed a bill in Pulaski circuit court sold- for the satisfaction thereof, etc. against Johnston, Hutt and Field, for The lots were sold under the decree on the payment of this judgment, and the the 27th April, 1846, purchased by the enforcement in equity of the lien and trustees, including Walters, for 5, levy aforesaid, by sale of the lots, etc. who obtained the commissioner's deed The bill, etc., is exhibited. therefor, duly acknowledged, etc., and On the 19th April, 1837, John W. recorded, etc. The report of the sale Onstott, administrator of Kirkwood was approved and confirmed by the Dickey, recovered a judgment in Pu- court on the day the . sale was made. laske circuit court, against John Hutt The decree, deed, report and confir-and Wm. Field for $56 debt, and $3.62 mation of sale, etc., are exhibited. damages, and costs. On the 31st of On the 12th November, 1840, lerrence May, 1844, the judgment was revived Farrelly obtained a judgment in Pu-on scire facias, and the lien thereof l aski circuitcourt against Hardy Jones continued, etc. On the 14th of August, and John 11'. Johnston, for $150 debt, 1844, aft. fa. issued on the revived judg- $17.20 damages and for costs. On the ment, to the sheriff of Pulaski, which, 17th January, 1842, a fi. fa. was issued on the same day, was levied on all the on the judgment, returnable to March interest of John Hutt, in and to the un- term following: which was returned divided half of said lots 10, 11 and 12, wit hout action, by order of the plaint-and other lands; which were sold under iff. On the 28th April, 1843, another the execution on the 21st of April, fi. fa. was issued on the judgment to 1845, and purchased by Win. Field for the sheriff of Pulaski county, return-.$15; who received the sheriff's deed able to May term following, which therefor, on the 7th of May, of the same was levied on the interest of John W. year; which, on the 31st of that month, Johnston, in t he three lots. There was was acknowledged before the court, a sale thereof on the 29th May, 1843, and filed for record on the 16th of June and Walters became the purchaser for following, etc. The original judgment, $30, as he in his lifetime pretended, judgment of revivor on scire facias, but complainants aver that there was execution, return, dee, etc.,d are ex- really no sale, and that no deed was exhibited. euted to him under the pretended On the 18th August, 1845, an alias fi. sale until the 16th of January, 1846, 1521 fa. was issued to the *sheriff of more than a year after the sheriff, Pulaski, on the same judgment, levied Lawson, had gone out of office, and on the same interest of John Hutt in nearly three years after the pretended said lots, which was sold on the 21st of sale. The deed of Lawson to Walters October, 1845, and purchased by Wal- for Johnston's interest iu the lots, bear-ters for $26, who, on the 16th December ing that date, acknowledged in open following, obtained the sheriff's deed court, etc., and also the judgment, fi. therefor, acknowledged in open court, fa.'s and returns are exhibiteti. etc., and filed for record afterwards, Walters was trustee of the bank under etc. The deed is exhibited. the deed of assignment, from 3d Janu-On the 24th October, 1845, the trust- ary, 1843, until 14th June, 1849, when he ees of the bank obtained a decree on *died, having made a will, ap- [*153 their bill against Johnston, Hutt and pointing Newton his executor, and de-Field, ordering paymentof the balance vising the residue of his estate, after -due on the judgment, that the three the payment of his debts, and a spe-
JULY TERM, 1856. SHALL V. BISCOE. cific legacy to his mother, to Frances Newton, as the executor of Walters, Pitcher, and Virginia and Ellen answered the bill. He admits that the Lemon. papers and records. referred to The executor of Walters, and the two in the bill are correctly stated, and devisees last named being the only de-that the facts proved by them are true; fendants who appealed from the decree and admits the truth of all the allega-of the court below, the allegations of tions of the bill, except such as are the bill charging the other defendants specially denied, etc. with liability for rents, etc., need not *He cannet state whether the [*1154 be stated. omission of the attorney of the trust-The bill insists that the lien of the ees to include lot 10 in the bill filed by Onstott judgment had expired long be-him, claiming for the trustees the ben-fore the .sei. fa. issued to revive it, and efit . of Byrd's lien on the lots for the that the lien of the judgment of revi-purchase motley, by subrogation, was vor dated only from the time it was occasioned by the neglect of Walters, rendered (31st May, 1844). That, or not. The trustees having full con-though the Farrelly judgment was fidence in the attorney, it was not cus-rendered, 12th Nov., 1840, no execu-tomary for them to superintend the-tion issued thereon until the 17th Jan-prosecution of suits, examine records uary, 1842, more than a year and a day, in relation to liens, or to give the attor-and having been returned by order of ney information in respect to such tbe plaintiff without actidn, no other matters, unless called called upon by execution issued until 28th April, 1843, him, etc., but all such matters were more than another year and day, peculiarly under his management. For whereby, in any event, the lien of the these reasons, respondent does not be-judgment was postponed, etc. That, lieve that Walters had any knowledge. after Walters purchased John4on's in-of the claim of the trustees upon said terest in the lots under the Furrelly lots, before he purchased the interest of judgment, May 29th, 1843 (long before Johnston therein, under the Farrelly which, he was a trustee for the bank), judgment. But even if he had, re-and before he purchased Hutt's sup-spondent insists that he purchased un-posed interest (21st Oct., 1845), he, with der a lien prior and paratnount to the his co-trustees, filed the two bills afore-pretended claim of the trustees; and said, one against Johnston, Field and such being the case, it was not a breach Hutt, on the 25th Sept., 1844, and the of trust or violation of duty in him to other against Johnston, Hutt and Byrd, make such purchase, particularly ' as he, 2d January, 1845; in the former of did it for the purpose of partially indem-which he and his co-trustees claimed a nifying himself for large sums which lien on the lots, as of 3d December, he had before then paid as the security 1842, and in the latter, a hen by substi-of Johnston, who was insolvent, etc. tution for purchase money, as of Respondent insists that Byrd having 21st May, 1839, and prosecuted both made an absolute conveyance of the bills to decree, establishing the liens as lots to FlutZ and Johnston, was not en-claimed, anc l as in truth they did titled to any lien tor the purchase exist. money, as against a stranger or third The bill prays that the pretended parties, and consequently the bank liens of defendants be canceled, and could not be subrogated to any such the title of complainants to the lots riglits as against a purchaser under the quieted, and for an acco . .:nt of rents, judgment of Farrelly. etc. Respondent does not insist that Wal.-
SHALL V. BISCOE. VOL. 18 ters obtained any title by his purchase purchasing Johnston's interest in the of Hutt's interest in the lots, under the lots, was partly to indemnify himself Onstott judgment, but insists that by from loss on account of money so paid his purchase of Johnston's interest, un-for Johnston, etc. The court decreed der the Farrelly judgment, he became the relief sought by the bill, that the the owner of t.,ne undivided half of titles of defendants be canceled, and said lots as against complainants, and the title of complainants to the lots all other persons. quieted, etc., and referred the case to Respondent avers that riasale was in the master to take an account of rents, fact made to Waiters under the execu-etc. tion upon the F.rrelly judgment, at the Newton, and Virginia and Ellen time, place and in the manner recited Lemon appealed from the decree. in the sheriff's deed exhibited with the Afterwards, Newton died, and Small bill. He admits that no deed was made was made a party, as administrator, to Walters, under his purchase, until etc., of Walters. 16th January, 1846, as stated in the The appellants claim no title under 155e] *bill, but he avers that such the Onstott judgment ; but they insist delay was not intentional or designed, that Walters purchased a valid title to but a mere omission and oversight ; Johnston's undivided half of the three and as the sale was returned upon the lots, under the Farrelly judgment. execution, he is unable to perceive how This judgment was rendered 12th Nov., any one could be prejudiced by the de-1840, and Walters purchased under it lay. *Respondent was informed , and 29th May . , 1843. By statute (Dig., ch. believed that Walters was under the 93,sec. *5,) the lien of a judg- [*156 impression that a deed had been made ment commences on the day it is in 1.1ursuance of said sale during the re-rendered, and continues for three turn term of the execution, as was the years, subject to be revived by scire custom of the sheriff, and as soon as he facis (Id. sec. 8 to 13). The Farrelly was apprised of the omission, he caused judgment was the oldest record lien the deed referred to in the bill to be upon the lots, at the time Walters pur-executed, acknowledged and recorded. chased, and he purchased before the Bespondent admits that no execution expiration of three years, and whilst issued on the Farrelly judgment until the lien of the judgment was in full the 17th January, 1842, and that it was force. returned without action by order of It is insisted by the a.ppellees, how-the plaintiff therein ; and that none ever, that the lien of the Farrelly other issued until 28th April, 1843, un - judgment was postponed by his laches. der which Walters purchased ; but he That the lien of the judgment obtained insists that, as said sale was made by the bank against Johnston, Hutt and within three years from the date of Field, 3d December, 1842, was con-the judgment, the lien thereof was not tinued and made specific by the levy waived, or postponed by such delay. upon the lots made 31st December, The cause was heard upon bill and 1842, under the execution issued on exhibits, answpr of Newton, replica-this judgment ; and that inasmuch as tion, and an agreement of tbe parties, the execution upon the Farrelly judg-that Walters bad to pay upwards of ment under which Walters purchased, $1,500 as security of Johnston upon a did not issue until the 28th April, 1843, note executed in 1840, and that John-the lien of the judgment was waived and postponed by the return of the ston had been insolvent since the year first execution, without action, upon 1841 ; and that the object of Walter's in the order of Farrelly.
JULY TERN, 1856. SHALL v. BISCOE. But this point has heretofore been and in most of the Statesof this Onion, adjudged against the appellees in Trap- that, in equity, the vendor of land nall v. Richardson et al., 13 Ark. 551, has a lien for the purchase money, not and Watkins et el. v. Wassell,15 Ark, only against the vendee himself, and O. In the case last cited, Mr. Justice his heirs and other privies in his es-Walker, delivering the opinion of this tate, but also against all subsequent court, said : "The statute continues purchasers having notice that the pur-the lien of the judgment creditor for chase money remains unpaid. The three years, unless displacpd by some lien exists, although there be no spe-act of the party. Mere delay to sue cial agreement for that purpose, and out proce,s within the time would not notwithstanding the vendor conveys of itself be sufficient for that purpose the land by deed, and takes the note nor would the levying of process, and or bond of the vendee for the purchase an order by the cn•ditor, or his attor-money. To the extent of the lien the ney, to return the process without vendee becomes a trustee for the vend-selling the property, or to return pro-or and his heirs, etc., and all other per-cess before it had been levied, necessa-sons claiming under him, with such rily discharge the judgment lien. notice, are treated as in the same pre-such acts do not amount to tin dicament. The principle upon which abandonment of the lien, or a release courts of equitY have proceeded in es-of the property, etc." These decisions tablishing this lien, in the nature of a are sustained by Rankin et al. v. Scott, trust, is, that a person who has gotten 12th Wheat R. 177.1 the estate of another ought not, in The appellees also insist upon the conscience, as between them, to be following propositions allowed to keep it, and not pay the 1st. The ba k was subrogated to the full consideration money. And third lien of Byrd upon the lots for the pur-persons, having full knowledge that chase money. the estate has been so obtained, ought 2. As Walters so claimed as one of not to be permitted to keep it, without the trustees of the bank, and on that making such payment, for it attaches ground obtained a decree and sale, he to them, also, as a matter of conscience was thereby estopped to deny it, and and duty. It would otherwise happen cou Id not controvert a decree obtained that the vendee might put another by himself asserting and recognizing person in a predicament better than that lien. his own, with full notice of all the 157 -*J 5 3d. Walters, as one of the facts. Mackreth v. Symmons, 15 Vesey trustees, purchased the property twice 329. Sugden on Vendor's 856, 7th for the creditors of the bauk, after he American Edition, and notes. 4 Kent's had purchased for himself, each time Corn. 152. 2 Story's Equity, sec. 789, bidding, and, by giving credit on the 1219, 1221, 1224, 1225. 1 Leading Cases decrees, paying away their money, for in Equity, by White & Tudor, Notes the title, or supposed title obtained by by Hare and B r at., rnarg. p. 174 seq., such purchase, and taking deeds to and cases cited. Manly et al., v. Slason himself and co-trustees—he cannot, et al., 21 Ve rm. 271, where the English therefore, set up his previous title, even and American cases are cited. supposing it otherwise good. The same doctrine has been recog-1. Was the bank subrogated to the nized . in the circuit and *su- [*158 vendor's lien ? preme courts of the United States. It is very well settled in England, Gilman v. Brown et al., 1 Illason 1921; 1. See I.ote 1, Watt ns v. Women, 15-90, same case, 2 Wheat. 255. Bayley V.
SHALL v. BI8COE. VoL. 18 v. Greenleaf et al., 7 Id. 46. Pintard upon the land, in the nature of V. Goodloe et al., Hempstead's C. C. I?. a mortgage, for the payment of the 503. note; and that an assignment of the It was also recognized by this court note transfers the lien to the assignee, in Moore & Cail admrs. v. Anders,14 as an incident to the debt. But Ark. R. 634, though Mr. Chief ,Tustice where the vendor conveys the land Watkins, who delivered the opinion, by deed, taking the vendee's note seems not to have been very favorably *for the purchase money, the r159 impressed with the doctrine. 2 Treating chief justice.said : "The weight of au-of the lien retained by the vendor, who thority no doubt is, that the equitable has executed his bond to make title lien of the vendor is personal to him, to the vendee on payment of the pur- and is not, unless under some peculiar chase money, be says: The lien re- equitable circumstances, assignable. served to the vendor, by means of such We decline going into any such ques-contracts, has none of the odious char- tion, because it is not presented here1 acteristics of the vendor's equitable and is only noticed by way of contrast lien for the unpaid purchase money, with the description of lien under con-where having conveyed the legal title, sideration." acknowledging the receipt of the pur- The question which the court de-chase money; he ought not to be heard clined going into in alit case, comes to assert it against any subsequent pur- directly before us in this. chaser or incumbrancer, without clear In lidlexfen v. Moore, 3 Alk. 272, and u nequivocal proof of actual no- Lord Hardwick is reported to have tice." stated, that the lien of the vendor does There being no showing of any not prevail for the benefit of a third agreement to the contrary, in the rec- person ; yet his decree was, that a lega-ord before us, it follows that, notwith- tee in that court was entitled to the standing Byrd conveyed the lots in benefit of the lien of the vendor. In question to Hutt and Johnston, by deed, Selby v. Selby, 4 Russell 336, the master and took their joint note for the pur- of the rolls held, notwithstanding the chase money, he retained an equitable dictum of Lord Hardwick in Pollexfen lien upon the lots for the, payment of v. Moore, that where the purchaser the purchase money, not only against died, and the vendor was paid the pur-them, but all subsequent purchasers, chase money out of the personal assets etc., with full notice, etc. of the deceased, the simple contract The note was made to Byrd, but ne- creditors of the purchaser stood in the gotiable and payable at the Real Estate place of the vendor with respect to his Bank, and upon Byrd's endorsement, lien on the estate sold, against a devi-the bank discounted the note, and see of the estate. These cases, how-paid to him the proceeds : Was the ever, are not directly to the point int bank subrogated to his lien upon the question, nor have we been able to find lots for the payment of the note? an English decision directly in point. In Moore & Gail, ad'rs v. Anders, The American decisions are very this court held that where the vendor much in conflict. does not convey the land by deed, but KENTUCKY—The assignee of the note gives the vendee a bond to make him or bond for the purchase money, takes a title on payment of the purchase with it, all the lien which the vendor money, for which the vendee's note had upon the land, etc. Eubank v. is taken, the vendor has a lien Thston, 5 Monroe 286. Edwards v.. 2. See notes 1 and 2 of Moore v. Anders, 14-632. Bohannon, 2 Dana 98, Johnston v.
JULY TERM, 1856. SHALL V. BISCOE. Gwathany, 4 Littell 317. Kinney v. assignor, the vendor, had. In C/ai-Collins, Id. 289. Honore's exr. v. Bake-borne v. Crockett, 3 Yerger 27, where well et. al., 6 B. Monroe 68. Ripperdon the vendor gave a bond for title, and v. Cozine, 8 Id. 465. In some of took the vendee's note for the purchase these cases the vendor had made the money, it was held that the mere as-vendee a deed; in others a bond signment of the note did not transfer for title, but no distinction is to the assignee the benefit of the vend-made between the cases in regard to or's lien. In Garm v. Chester et. al., 5 the lien passing to the assignee with Yerger 205, the vendor made a deed to the note, etc. the vendee, and took his notes for the ALABAMA follows Kentucky. But if purchase money; and it was held that the vendor assigns the note, without an assignment of the notes did not recourse upon him, the lien does not transfer, but extinguished the lien. So, pass to the assignee. And where the too, in Sheratz v. Nicodernus, 7 Verger lien passes by the assignment, and the 9. In Graham v. McCampbell, Meig's note is returned to the vendor unpaid, Rep. 52, Claiborne v. Crockett was over-he may enforce the lien. White v. ruled, and it was held that where the Stover et al., 10 Ala. 441; Roper v. Mc-vendor gives his bond for title, and 160*] Cook, 7 *Id. 319; Hall's ex. V. takes the note of the vendee for the Click et al., 5 Id. 363; Kelly v. Payne, purchase money, the vendor retains a 18 Ala. 373. lien upon the land, in the nature of a INDIANA follows Kentucky also. mortgage for the payment of the debt, Brumfield et al. v. Palmer, 7 Blackford and that an assignment of the note by 227; Lagow et al. v. Badollet et al., 1 him, transfers to the assignee, as an Id. 416. But, in these cases, the vend-incident tn the debt, the lien upon the ors did not make. deeds to the vend-land; but where the vendor conveys ees, but covenanted to convey on pay-the land by deed, taking the vend-ment of the purchase money. ee's note for the purchase money, TEXAS. In Pinchain v. Collard, 13 *the lien is personal to the P161 7exas 333, the court, citing some of the vendor, and is not transferred by an authorities on both sides of the ques-assignment of the note. In Green et tion, declines to express any opinion as al. v. Demoss et al., 10 Humphries 371, to whether the mere transfer of the this distinction was approved and connote or bond given for the purchase firmed ; and it was held that where the money, passes the vendor's lien ; but vendor has conveyed the land by deed, holds that where a third person is sub-the lien is a mere personal, equitable stituted for the vendor as payee in a right in him, and not assignable ; but note, given, as expressed on its face, for that the assignment of the vendee's the purchase money, he will be enti-note does not, ipso facto, extinguish tled to the vendor's lien. To some ex-the vendor's lien ; but if he is made tent, Dayden v. Frost, 3 Mylne & Craig liable upon his endorsement, or the note 670, sustains this decision. is returned to him unpaid, his lien re-TENNESSEE. Iu Askridgev: Mc aure vives. et al., 2 Verger 84, the vendor made a MISSISSIPPI—Holds, as finally held deed to the purchaser, and took his in Tennessee, that where there is a bond bond for the purchase money, upon the for title, the vendor's lien follows the face of which it was expressed that the note for the purchase money into the land should be liable for the debt ; and hands of an assignee. Parker v. Kelly it was held that the assignee of the bond et al., 10 Sm. & Mar. 184. But where had, in equity, the same lien that his the vendor has conveyed the land, hia
SHALL V. BISCOE. VOL. 18 lien does not pass by the assignment of intimates that it might be transferred the note. Briggs et al v. Hill, 6 Howard by special agreement. In Hallock v. 362. Smith, 3 Barbour's S. C. R. 272, Strong GEORGIA —Holds that,:upon principle J., said : "If the note or bond (for the the vendor's equitable lien is not as-purchase money) is assigned or trans-signable. But if it were, it must be as-ferred to a third person for his benefit, signed specially. It does not follow the security (the lien of the vendor) is the simple transfer of the note for the gone forever. The reason is, there is purchase money. Wellborn .. et al. v. no peculiar equity in favor of third per-Williams et al., 9 Geo. R. 86, 92. sons. But that does not apply where, IOWA—"The assignee of a note given as in this case, the transfer is only for for the purchase money of land, can-the purpose of paying the debt ofthe not in equity enforce the original lien vendor, so far as it may be available, of the vendor against the land. The and is, therefore, for his benefit. There, equity arises to the vendor, but cannot the equity continues." be transferred." Dickinson v. Chase et It would seem from the cases cited al., 1 Morris R. 492. above, that the weight of authority is, OHIO—The vendor's lien is personal, that where the vendor conveys the and does not pass to the assignee of a land by deed, taking the note of the note given for the purchase money. vendee for the purchase money, a mere Jackson v. Hallock et al., 1 Ohio 318; assignment of the note does not transfer Tiernan v. Beam et al., 2 Id. 383; Bush to the assignee the benefit of the et al. v. Kinsley et al. 14 Id. 20 ; Hor-vendor's lien upon the land for the pay-ton v. Horner, Id. 437. In these de-ment of the purchase money. cisions, no distinction is taken between In the case now before us, the bank cases where the vendor gives bond for seems to have taken the note, upon title, and where he conveys by deed. the endorsement of Byrd, in the or-MARYLAND.—In Schnebly et a/. v. dinary course of business. There is no Ragan, 7 Gill. & John. 124, the court allegation in the bill that she contracted seems to have inclined to the opinion for the lien of the vendor, or looked to that the assignee might get the benefit it as a security, when she discounted of the vendor's lieu by express agree-the note. ment ; but held that where the vendor If the bank had been subrogated to 16211 as4 igne:1 the note *for the pur-the lien of Byrd, by his endorsement of chase money, without recourse upon the note to her, whether she lost the him, the lien was extingnished, being benefit of the lien by taking a bill of personal to the vendor. exchange, endorsed by Robert In Ingiehart V. Armiger, 1 Blancl519, Johnson, in payment of the note as in-and Moreton v. Harrisun, Id. 491, held, sisted by the appellants—or whether that the assignment of the note for the the lien of Farrelly's judgment was purchase money operates as a tacit re-superior to the lien of the vendor, the linquishment of the vendor's lien, and judgment having been obtained before it can never be revived, unless he is • the trustees filed their bill to r163 made liable as assignor. Maryland Di-get the benefit of Byrd's lien—or gest, p. 685. whether, and to what extent, Walters NEW YoRK.--In White v. Williams, 1 was affected with notice of the vendor's Paige R. 506, Chancellor Walworth lien, when he purchased the lots under held, that the lien of the vendor did not the judgment—are questions which pass, by implication, to the assignee of need not be determined, as we have de-the note for the purchase money, but cided that the bank was not subrogated
JULY TERM, 1856. SHALL V. BISCOE. to the benefit of the vendor's lien. rendered, which is relied on as an es-2. The second proposition insisted .on toppel by the appellees, was filed by by the appellees is, that, inasmuch as the trustees of the bank, ineluding Walters, as one of the trustees of the Walters, against Hutt, Johnson (Cc Byrd. bank, claimed that the bank was sub-*The object of the bill was to p164 rogated to the benefit of the vendor's obtain satisfaction of the judgment lien, and, on that ground, obtained a which the bank had obtained against decree and sale of the lots, he was there-them, on the protested bill, taken by by estopped to deny it, and could not her in payment of the original note for controvert a decree obtained by him-the purchase money, ete. The trustees self, asserting and recognizing that claimed in that suit that the bank lien. should be subrogated to the benefit of "The general rule on this subject was Byrd's lien upon the lots, and obtained laid down with admirable clearness, by a decree to enforce the lien as against Lord Chief Justice De Grey, in the Hutt and Johnson, who had purchased Duchess of Kingston's case (20 How-the lots, but never paid for them, and ell's State 7rials 538) and has been re-as against Byrd who held the lien, etc. peatedly confirmed and followed, with-But, in the mean time, and before out qualification—`From the variety of the bill was filed, Farrelly had ob-cases, said he, relative to judgments tained a judgment, which was a lien oil being given in evidence in civil suits, Johnson's interest in the lots, and Wal-these two deductions seem to follow, as ters had purchased under the judg-generally true; first, that the judgment ment, and the bill and decree iu no of a court of concurrent jurisdiction, way determined whether the lien of directly upon the point, is, as a plea, a Byrd could prevail against the inter-bar; or, as evidence, conclusive, between vening lien of Farrelly's judgment, the same parties, upon the same mat-and against the title of Walters as u pur-ter, directly in question in another chaser under the judgment. These court; secondly, that the judgment of questions were not before the court, a court of exclusive jurisdiction, dirct-and were not decided; and, as to them, ly upon the point, is in like manner, the decree, under the above rule, could conclusive upon the same matter, he-not be regarded as an adjudication, op-tween . the same parties, coming inci-erating as an .estoppel upon Walters. dentally in question in another court 3d. But after 'Walters had purchased for a different purpose. But, neither Johnson's interest in the lots, be, with the judgment of a concurrent nor ex-his co-trustees, filed two bills to fix clusive jurisdiction is evidence of any liens upon the lots, and enforce the sat-matter which came collaterally in isfaction of judgments upon them, dat-question, though within their jurisdic-ing back of his purchase; obtained de-tion; nor of any matter incidentally crees, caused the lots to be sold, and cognizable; nor of any matter to be in-purchased in the name of the trustees, ferred by argument from the judg-took deeds from the commissioners, ment.' 1 Greenleaf's Ev., sec. 528, et had the sales confirmed by the court seq. Hibsham v. Dulleban, 4 Watts 190; and the deeds put on record; in each Harvy v. Richards, 2 Gallison 216; case making the purchase with the D . arnmell et al. v. Thurmond et al., 17 means belonging to the cestuique trusts Ark. 203.3 under the deed of assignment. While The bill upon which the decree was all these legal steps were being taken 3. See note 1, State Bank •. Robinson, 13-224, on in his name, Walters appears to have con cl usiveness of decree. remained silent as to his own claims
VOL. 18 with a full knowledge, as we must sup- duct of Walters in this case operates as pose fr om the record before us, of his an estoppel upon him and his privies rights. in estate. We cannot presume, from the plead- The decree of the court below is ings and evidence in the cause, that affirmed. Walters was ignorant of the legal pro-Absent, the Hon. Thomas B.
ceedings taken in his name to enforce Hanly. the claims of the trustees upon the lots. ilted:--19-305; 20-91; 21-202-205; 22-583; 23-257- It WM his duty, as a trustee, receiving 467; 24-399-566; 25-510-56-514-133-372; 26-396-630; compensation for his services, under 27. 230-63;28,70-405; 29-363; 30-155' 31-142-250; 32- the provisions of the trust deed, to at- 250;33-60-247; 41-292; 43.467; 46-269. tend 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, 165'1 *the decrees obtained, and where the lots were sold and purchased in his name, after being advertised in the public newspapers. Was he acting in good faith as a trustee, to remain silent as to his own claim, and join with his co-trustees in putting the trust to the expense of prosecuting all the proceedings above referred to, and then to turn about and set up a personal claim, which he had 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, he heard 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 an encourages the sale, and 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 he, nor his privies, will be at liberty to dispute the validity of the purchase in equity. 1 Story's Equity,ses.385; Donley v. Rector, 10 Ark. 212. By the strongest analogy, the con-
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.