
    Lewisburg.
    Alford v. Helms.
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    
    
      H sells and conveys two tracts of land to W, who sells and conveys them to D ; and B sells and conveys one of the tracts to A: both D and A knowing at the time of their respective purchases, that a part of the purchase money was yet due from W to H. Upon a bill by H against the three purchasers, to enforce his lien on the land for the unpaid purchase money. Held : The tract purchased by A shall not be subjected until the tract retained by D has been first sold, and proves insufficient to discharge the amount due.
    In May 1844, Madison W. Helms filed his hill in the Circuit court of Floyd county, in which he alleged that he sold and conveyed to Thomas B. Woolwine two tracts of land lying in the county of Floyd, containing together about three hundred acres, for the sum of 600 dollars. That 400 dollars of the purchase money had been paid, but that 200 dollars was still due. That afterwards Woolwine sold and conveyed the land to Jacob Douthatt, who the plaintiff charged, had full knowledge at the time of his purchase, that the purchase money, or a part of it, was unpaid. That Douthatt afterwards sold and conveyed the land to Thomas K. Alford, who also had full knowledge at the time of his purchase, that a part of the purchase money was still due to the plaintiff. And making Woolwine, Douthatt and Alford parties defendants, he prayed that the land, or so much thereof as might be necessary for the purpose, might be sold to satisfy the balance of the purchase money remaining unpaid.
    
      Woolwine answered the bill, and admitted that 200 dollars of the purchase money of the land remained unpaid; and that he conveyed the two tracts of land to Douthatt; but he stated that Douthatt sold and conveyed but one of the traets to Alford; and that since the institution of this suit, he had sold and conveyed the other tract to Jeremiah Kyle.
    
    
      Alford also answered the bill. He says that he knows nothing of the contract between the plaintiff and Woolwine, or of that between Woolwine and Douthatt. That he was a stranger in Floyd county; and that at the time of making his contract with Douthatt he did not know that any part of the original purchase money was due ; and that his first intimation that the land he had purchased was subject to any such claim, was the institution of this suit. That he has paid to Douthatt the whole amount of his purchase money except-dollars. That if it be true as stated in the bill, that the defendant Douthatt had notice that the purchase money due the plaintiff was,not all paid, then the other tract of land retained by Douthatt ought alone to be subjected to the plaintiff’s claim.
    The bill was taken for confessed as to Douthatt.
    
    It appeared from the deed, which bore date the 6th of June 1843, that Douthatt conveyed but one of the tracts to Alford; and it was proved that Alford knew at the time he purchased from Douthatt, that there was due to the plaintiff from Woolwine, the sum of 200 dollars on account of the purchase money.
    An affidavit of Jacob Douthatt was filed in the cause by Alford, in which it was stated that Douthatt sold one tract of the land mentioned in the plaintiff’s bill, to Alford, and conveyed it to him by a deed recorded on the 9th of June 1843; and that he sold the other tract to Jeremiah Kyle, and conveyed it to him on the 17th of Juno 1844, after the institution of this suit.
    The cause came on to be heard on the 21st of August 1845, when the Court made a decree, that unless the defendants or either of them, should pay to the plaintiff by the first of January 1846, the sum of 200 dollars, with the interest due thereon when paid, and the costs of this suit, that the land purchased by Woolwine of the plaintiff should be sold for cash; and a commissioner was appointed to execute the decree, with instructions so to proceed if practicable, in making the sale, as to raise from the two parcels of land in the proceedings mentioned, rateably, the sum of money aforesaid. From this decree, the defendant Alford applied to this Court for an appeal, which was allowed.
    
      The Attorney General, for the appellant, submitted the case.
    There was no counsel for the appellee.
   Daniel, J.

delivered the opinion of the Court.

The bill being regularly -taken for confessed as to the defendant Douthatt, and it being therein distinctly averred that the said defendant, at the time of the purchase of the two tracts of land in the bill and proceedings mentioned, from Woolwine, had notice .that the balance of the purchase money claimed by the appellee as due from the said Woolwine to him, was still .due and unpaid; and it being proved that the appellant Alford purchased the tract of one hundred and sixty .acres from Douthatt, with notice that said balance was still due and unpaid, this Court is of opinion that the Circuit court properly regarded said balance as a lien on both of said tracts of land. But as it appears, that at the date of Alford’s purchase, Douthatt still retained the tract of one hundred and fifty acres, this Court is of opinion that Alford had a right to insist that said last mentioned tract should be sold, and the proceeds applied in discharge of the lien aforesaid, before any resort should be had to .the tract purchased by him ; and therefore that the Circuit court erred in directing both of said tracts to be sold, and the balance aforesaid, to be raised rateably from the .two. This Court is further of opinion, that the Circuit .court also erred in directing the sale aforesaid to be made for cash, instead of upon a reasonable credit. The decree of the 21st August 1845, is for these reasons reversed with costs. And it being averred in the answer of Wool-wine, and also stated in the affidavit of Douthait, that one Jeremiah Kyle has since the institution of the suit, purchased and obtained a conveyance of the tract of one hundred and fifty acres, the cause is remanded, for further proceedings in conformity with the principles above declared, and with liberty to the appellee Helms, if so advised, to amend his bill and make the said Kyle a party.  