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ed established in the English law, that a mere deposit of title deeds upon an advance of money, without a word passing, gives an equitable lien. The decisions on this subject have, however, shown a determined disposition to keep within the letter of the precedents, and not to give the doctrine further extension; and it is very clear, that a mere parol agreement to make a mortgage, or to deposit a deed for that purpose, will not give any title in equity. There must be an actual and bona fide deposit of all the title deeds with the mortgagee himself, in order to create the lien. Nor will such an equitable mortgage be of any avail against a subsequent mortgage, duly registered without notice of the deposit; and if there be no registry, it is the settled English doctrine, that the mere circumstance of leaving the title deeds with the mortgagor, is not, of itself, in a case free from fraud, sufficient to postpone the first mortgagee to a second, who takes the title deeds with his mortgage, and without notice of the first mortgage.

(8.) Equitable lien of vendor.

The vendor of real estate has a lien, under certain circumstances, on the estate sold, for the purchase

money. The vendee becomes a trustee to the *152 vendor for the purchase *money or so much as

Ex parte Whitbread, 19 Ves. 209. Ex parte Langton, 17 Vesey, 230. Lord Ellenborough, in Doe v. Hawke, 2 East's Rep. 486. Ex parte Kensington, 2 Vesey & Beame, 79. Factor v. Philpot, 12 Price, 597. Rockwell v. Hobby, 2 Sandford's Ch. Rep. 9. In the case of an equitable mortgage given by the deposit of deeds, the mortgagee is entitled to enforce it by bill and a decree for a sale of the estate; and the mortgagor is allowed six months to redeem the deposited deeds, and pay the debt, whether the decree be for a sale or for a strict foreclosure. Pain v. Smith, 2 Mylne & Keene, 417. Parker v. Housefield, ibid. 419.

Lucas v. Dorrien, 7 Taunt. Rep.

bEx parte Coombe, 4 Madd. Rep. 133. 279. Ex parte Coming, 9 Vesey, 115. Ex parte Bulteel, 2 Cox, 243. Norris v. Wilkinson, 12 Vesey, 192. Ex parte Pearse, 1 Buck. B. C. 525. • Berry ♥. Mutual Ins. Company, 2 Johns. Ch. Rep. 603.

remains unpaid; and the principal is founded in natural equity, and seems to be inherent in the English equity jurisprudence. The court of chancery will appoint a receiver in behalf of the vendor, if the vendee has obtained and refuses to pay. This equitable mortgage will bind the vendee and his heirs, and volunteers, and all other purchasers, from the vendee, with notice of the existence of the vendor's equity. Prima facie the lien exists without any special agreement for that purpose, and it remains with the purchaser to show, that from the circumstances of the case, it results that the lienwas not intended to be reserved, as by the taking other real or personal security, or where the object of the sale was not money, but some collateral benefit. In Mackreth v. Symmons, Lord Eldon discusses the subject at large, and reviews all the authorities; and he considers this doctrine of equitable liens to have been borrowed from the text of the civil law;d and it has been extensively recognised and adopted in these United States. It has been a question much discussed, as

A

Payne v. Atterbury, Harrington's Mich. Ch. Rep. 414.

b Chapman v. Tanner, 1 Vern. 267. Lord Hardwicke, in Walker v. Preswick, 1 Vesey, 622. Lord Eldon, in Austin v. Halsey, 6 ibid. 483. Sir William Grant, in Nairn v. Prowse, ibid. 759. Hughes v. Kearney, 2 Sch. & Lef. 132. Meigs v. Dimock, 6 Conn. Rep. 458. Stafford v. Van Rensselaer, 9 Cowen's Rep. 316. Marsh v. Turner, 4 Missouri Rep. 253. Deibler v. Barwick, 4 Blackf. Ind. Rep. 339. Marshall, Ch. J., in Bailey v. Greenleaf, 7 Wheaton, 46. Magruder v. Peter, 11 Gill & Johnson, 217. Carroll t. Van Rensselaer, Harrington's Mich. Ch. Rep. 226.

15 Vesey, 329.

Dig. lib. 18, tit. 1, 1. 19.

Cox v. Fenwick, 3 Bibb, 183. Gar-
Fish v. Howland, 1 Paige, 20. War-

• Cole v. Scot, 2 Wash. Rep. 191. son v. Green, 1 Johns. Ch. Rep. 308. ner . Van Alstyne, 3 ibid. 513. Bayley v. Greenleaf, 7 Wheat. Rep. 46 Gilman v. Brown, 1 Mason's Rep. 191. Watson v. Wells, 5 Conn. Rep. 468. Jackman v. Hallock, 1 Hammond's Ohio Rep. 318. Tierman v. Beam, 2 ibid. 383. Patterson v. Johnson, 7 ibid. 226. Eskridge v. M'Clure, 2 Yerger's Rep. 84. Sheratz v. Nicodemus, 7 ibid. 9. Wynne v. Alston, 1 Devereux's Equity Cases, N. C. 416. Evans v. Goodlet, 1 Blackford's Ind.

*153

to the facts and circumstances which would amount to the taking of security from the vendee, so as to destroy the existence of the lien. In several cases *it is held, that taking a bond from the vendee, for the purchase money, or the unpaid part of it, affected the vendor's equity, as being evidence that it was waived; but the weight of authority, and the better opinion is, that taking a note, bond, or covenants, from the vendee, for the payment of the money, is not of itself an act of waiver of the lien, for such instruments are only the ordinary evidence of the debt. Taking a note, bill, or bond, with distinct security, or taking distinct security exclusively by itself, either in the shape of real or personal property, from the vendee, or taking the responsibility of a third person, is evidence that the seller did not repose upon the lien, but upon independent security, and it discharges the lien. Taking the deposit of stock is also a waiver of the lien ; and, notwithstand

Rep. 246. Lagow v. Badollet, ibid. 416. Van Doren v. Todd, 1 Green's N. J. Rep. 397. But this doctrine of an equitable lien for the purchase money, has been judicially declared not to exist in Pennsylvania, after the vendor has conveyed the legal title, as against a subsequent judgment creditor. Kauffelt v. Bower, 7 Serg. & Rawle, 64. Semple v. Burd, ibid. 286. Megargel v. Saul, 3 Wharton, 19. It is said, also, not to have been adopted in

all its extent in Connecticut. Daggett, J., 6 Conn. Rep. 464. Church, J., in 17 Conn. Rep. 583, and it does not exist in Massachusetts. Story, J., in Gilman v. Brown, supra; and has been exploded in North Carolina, Womble v. Battle, 4 Iredell's Eq. Cases, 182.

Winter v. Lord Anson, 3 Russel, 488. Lagow v. Badollet, 1 Blackford's Ind. Rep. 416. Van Doren v. Todd, 1 Green's N. J. Rep. 397. Eskridge v. M'Clure, 2 Yerger's Rep. 84. Ross v. Whitson, 6 ibid. 50. But it is held that the assignment of the note given for the purchase money, will not carry with it the vendor's lien. Brush v. Kinsley, 14 Ohio Rep. 30.

b Taking a promissory note with an endorser is not a waiver of the lien. Magruder v. Peter, 11 Gill & Johnson, 217. But the vendor's lien for the purchase money does not pass to the assignee of his note taken for the purchase money. Bland's Ch. Rep. 524. White v. Williams, 1 Paige, 506. Brigg v. Hill, Howard Miss. Rep. 362.

Nairn v. Prowse, 6 Ves. 752. Lagow v. Badollet, 1 Blackford's Ind. Rep. 416.

ing the decision of the Master of the Rolls, in Grant v. Mills,a holding, that a bill of exchange, drawn by the vendee, and accepted by him and his partner, did not waive the lien; the sounder doctrine, and the higher authority, is, that taking the responsibility of a third person for the purchase money, is taking security, and extinguishes the lien.”

It has also been decided by the Supreme Court of the United States, after a full examination of the question, and upon grounds that will probably command general assent, that the vendor's lien cannot be retained against creditors, *holding under a bona fide mort- *154 gage or conveyance from the vendee, nor against a subsequent purchaser without notice.

The lien will

2 Ves. & Beame, 306.

Gilman v. Brown, 1 Mason's Rep. 191. 4 Wheat. Rep. 255, S. C. Williams v. Roberts, 5 Hammond's Ohio Rep. 35. Eskridge v. M'Clure, 2 Yerger's Rep. 84. Foster v. The Trustees of the Athenæum, 3 Alabama R. N. S. 302. In the Roman law, from whence the doctrine of the vendor's lien is supposed to be derived, the absolute property passed to the buyer, if the seller took another pledge, or other personal security; venditæ vero res et traditæ non aliter emptori acquiruntur, quam si is venditori pretium solverit, vel alio modo ei satisfecerit, veluti expromissore aut pignore dato. Inst. 2.1.41. Hoc nomine fide jussor, hic intelligi videtur. Vinnius in Inst. h. t.

Bayley v. Greenleaf, 7 Wheat. Rep. 46; and, to the same point, see Roberts v. Salisbury, 3 Gill & Johns. 425. Gann v. Chester, 5 Yerger's Tenn. Rep. 205. The opinion in Wheaton, is decidedly condemned in Twelves v. Williams, 3 Wharton, 493. So also, in Shirley v. Sugar Refinery, 2 Edw. V. Ch. Rep. 511, the vice-chancellor in New-York, dissents from the opinion of the Supreme Court of the United States, unless the conveyance or mortgage to the creditor be founded upon some new consideration and without notice of the lien, and he refers to the cases of Grant v. Mills, 2 Ves. & Bea. 306, and of ex parte Peake, 1 Madd. Ch. Rep. 191, Phil. ed. But those cases only go to establish that position, the assignees of bankrupts and insolvents, take the estate subject to the existing equities against the vendee, and that they are in no better condition than the bankrupt, for they come in by operation of law, and without paying value. That point was, however, not decided by the supreme court. The court took a distinction between an assignment by a bankrupt, under the directions of a bankrupt or insolvent act, and an absolute conveyance by the vendee to bona fide creditors as purchasers. As the registry of deeds is the policy and practice in

prevail, however, against a judgment creditor of the vendor, intervening between the time of the agreement to convey and receipt of the consideration money, and the actual conveyance. Under these circumstances, the vendor is justly considered in the light of a trustee for the purchaser. But in that case, an intervening mortgagee, or purchaser for a valuable consideration, and without notice would be preferred."

II. Of the rights of mortgagor. (1.) His character at law.

Upon the execution of a mortgage, the legal estate vests in the mortgagee, subject to be defeated upon per

this country, I think the decision in Wheaton is correct, and that this latent equitable lien ought not to prevail over bona fide purchasers from the vendee and for valuable consideration, and that they are not bound to take any notice of this dormant lien, resting for its validity on the state of the accounts between the vendee and his vendor.

a Finch v. Earl of Winchelsea, 1 P. Wms. 277. Hoagland v. Latourette, 1 Green's N. J. Ch. Rep. 254. Money v. Dorsey, 7 Smedes & Marshall Miss. Rep. 15. The last case admitted it to be a well established doctrine, that from the sale of land, the vendor becomes a trustee of the title for the vendee, and the latter a trustee of the purchase money for the former. In each instance a lien is created upon the estate for the money. See also, 1 Atk. 572, 1 Paige, 129, 4 id. 15, S. P. The question, whether taking a bond or bill destroyed the lien, has been quite a vexed one in the books. In Fawell v. Healis, Amb. 724, taking a bond was considered to have destroyed the lien. In Blackburn v. Gregson, 1 Bro. 420. 1 Cox, 90, S. C., the question was raised, and left undecided, though Lord Loughborough said, he had a decided remembrance of a case, where it was held that the lien continued, although a bond was given. In Winter v. Anson, 1 Simon & Stuart, 434, it was held, that there was no lien where the bond was taken for the purchase money, payable at a future day, with interest. It was decided to the same effect in Wragg v. The Comptroller General, 2 Des. S. C. Rep. 509. But we have decisions directly to the contrary, in White v. Casanove, 1 Hayw. & Johns. 106, and Fox v. Fenwick, 2 Bibb, 183; and Mr. Justice Story also draws a contrary conclusion, in Gilman v. Brown, 1 Mason's Rep. 214; and he considers a note, bond, or covenant, from the vendee, to be consistent with the preservation of the lien. The same opinion is given in Kennedy v. Woolfolk, 3 Hayw. 197, and in Fish v. Howland, 1 Paige, 20, where this doctrine of lien is laid down with comprehensive accuracy and precision.

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