Doty, etc., v. Deposit Building & Loan Assn., etc. testimony heard upon the questions of fact presented by the exceptions. Mrs. Doty entered her appearance for the purpose only of moving to set aside the judgments entered, so far as her interests were affected, upon the ground that process on the petition or either of the cross petitions was never served upon her. Doty's exceptions and his wife's motion were overruled, and they have appealed to this court. On behalf of appellant it is contended, that the lot on Fifth street in Lexington being a part of the consideration for the purchase, not only of the Owen county farm, but of the personalty as well, the contract being for the realty and personalty in gross, without any price fixed for either of them separately, either by the contract or the pleadings, a vendor's lien can not exist upon the realty for any sum which is a part of the purchase price of both the realty and the personalty in gross. It is also objected that, by the judgment, he was given a lien not only for the difference between the value of the Fifth street lot and the incumbrance upon it, but for the rents thereof between the date of the contract by which the trade was made and the time of filing the cross-petition. But it is evident that the judgment was only for the difference between the value of the property and the incumbrance thereon to the building association, with interest. The basis of counsel's former contention is correctly stated. By the contract in question, fairly construed undoubtedly it was agreed to trade the three Lexington lots in gross for the Owen county farm, farming imple ments, farm products and live stock in gross, without fix Doty, etc., v. Deposit Building & Loan Assn., etc. ing the price at which any of one of the lots, or the farm, or the personal property was taken in the trade. It is earnestly insisted that the purchase price being the purchase price for both the farm and the personalty, no lien can arise upon the land for any part of the purchase price, because it is the purchase price in gross of both the land and the personalty. A number of authorities are cited as sustaining this proposition, as well as in support of the contention that no vendor's lien can exist to secure an uncertain or unliquidated demand. Without going through the authorities in detail cited in support of these contentions, we may say, that the questions seem to have been decided otherwise by this court, and, as we think, manifestly upon equitable principles. There is no intervening equity of third persons to be considered. It is a question simply between vendor and vendee. This record discloses the transfer of a farm and the personalty upon it for a consideration agreed to be paid in other lands. A part of this consideration has been paid. The value of the balance due can be, and has been, judicially ascertained. And the question presented is, whether that part of the property sold, which the court can reach, shall be subjected to the payment of the purchase price remaining unpaid, in a proceeding in which the vendor's right to payment has been adjudged; or, whether he shall be compelled to await the result of process of execution, or to bring an attachment suit in a court of another county. The statute (Kentucky Statutes, section 2358) provides that the grantor shall not have a lien for unpaid purchase Doty, etc., v. Deposit Building & Loan Assn., etc. money "against bona fide creditors and purchasers, unless it is stated in the deed what part of the consideration remains unpaid." This statute-being the same as in the General Statutes-discloses a marked change from the language used in the Revised Statutes, which provided that if any part of the consideration remained unpaid at the time of the conveyance, the grantor should not thereby have a lien for the same, unless it were expressly stated in the deed what part of the consideration remained unpaid. By clear implication of the statute as between vendor and vendee, a lien exists upon the land sold for the purchase price of the land; and it does not seem to be seriously contended that if it appeared, either from the contract or extrinsic evidence, what price in the trade was put upon the realty and what upon the personalty sold by Taylor to Doty, a lien would not exist upon the land for that proportion of the unpaid purchase money which was applicable to the sale of the land. We might suggest that, in such a case, no application having been made of the partial payment of the consideration of the two varieties of property sold, equity would make an application of the payment for the parties, and the consideration actually paid would be applied to extinguishing the obligation for the personalty. But we think it unnecessary to resort to equitable application of payments in this case. Doty obtained the title and possession of certain realty and personalty by one transaction, one contract, for one consideration. A part of the consideration remains unpaid. What has become of the personalty thus sold does not appear in this record. Manifestly, personal property Doty, etc. v. Deposit Building & Loan Assn. of the character indicated-easy of transportation and finding ready sale-might be disposed of in such time and manner as to prevent the levy of execution thereon. But, as between vendor and vendee, with no intervening equities, it would be manifestly unconscientious to permi a party to retain possession of property without the payment of the consideration. The process of the court may be unable to reach and subject the personalty to the payment of that part of the consideration which may be supposed to have been agreed to be paid for the personalty, but it can reach the realty, the sale of which was effected at the same time and by the same agreement. The case seems to us strictly analogous to the case of a sale in gross of two lots of land for an agreed lumping consideration, a part of which is unpaid at the date of the conveyance. Undoubtedly, in such case, either lot (no equities intervening) might be subjected to the payment of the unpaid purchase money. Said the New York court in Warren v. Fenn (28 Barb., 334), "It has become one of the best established principles of natural equity that estates are to be regarded as unconscientiously obtained when the consideration is not paid." Again in Fisk v. Potter (2 Abb. App. Dec., 138), the court said of a vendor's lien: "Its existence depends upon and is controlled by no well-settled rules, but on the contrary the existence of the lien is generally made to depend upon the peculiar state of facts and circumstances surrounding the particular case; that is, whether or not a case of natural equity is established." In 9 R., 747, Thacker v. Booth, Judge Holt delivering the opinion of the Doty, etc., v. Deposit Building & Loan Assn., etc. court, said: "A lien existed in the nature of a trust, because equity will not allow one to hold the land of another and not pay for it. To do so would be in violation of good conscience and every rule of right." So in Blivins v. Blankenship (9 R., 852), Judge Holt-discussing the change made by the General Statutes in the statute before quoted-said, that unless it be stated in the deed what part of the consideration remains unpaid, the vendor waived his lien as to creditors and purchasers, who were protected because the conveyance gave them no notice that any consideration remained unpaid; and then added: "The immediate vendee knows, however, whether it has been paid or not; and if not, the lien upon equitable principles exists in favor of the vendor, although the deed fails to state that any, or how much, of it is unpaid." We think it is proper to treat this transaction as one sale and, assuming for the purpose of argument that no lien exists upon the personalty, even as between vendor and vendee, after possession has been parted with, we see nothing inequitable in subjecting that part of the property sold, which the court can reach, to a vendor's lien for the unpaid purchase money due upon all the property sold in the same transaction. In the case of Davis v. Page (17 R., 622), this court, in an opinion by Judge Guffy, enforced as between the parties thereto a lien retained in an unrecorded title bond, executed upon a sale of both realty and personalty. (Clark v. Curtis, 11 Leigh (Va.), 559.) And as to the question whether a vendor's lien can exist for an unliquidated claim as for breach of contract for personal services to |