
    William Clower vs. Jackson C. Rawlings et als.
    In a sale of real estate, payment constitutes a part of the contract, and therefore where the whole or any part of the purchase-money remains unpaid, it is a rule, that the vendor has a lien upon the real estate sold, for the purchase-money remaining unpaid. This rule subsists against the vendee and his heirs, and against all others who take under him with notice.
    Where the purchaser of land gave bonds, with personal security, for the purchase-money, but neither took a conveyance nor paid the purchase-money, it was held that the vendor did not lose his lien upon the land by having taken personal security.
    The rule that, where a party has carved out his own security, the law will not create another in his aid, is of very early authority.
    Where a vendor of land, who had taken personal security from his vendee, after retaining his lien by withholding a deed of conveyance for nearly two years, executed a deed of conveyance, for the avowed purpose of enabling his vendee to raise money by a mortgage, and thus aiding her to pay the balance due upon the purchase-money, the conveyance was held to be an act evincing a determination to abandon his vendor’s equitable lien, and to be a waiver thereof.
    On appeal from the vice-chancery court, at Carrolton ; Hon. Henry Dickinson, vice-chancellor.
    William Clower states in his bill, that some time in the year 1835, he sold to Mary Ann Davis, now the wife of Joseph T. Copes, of the city of Jackson, in this state, certain lands lying in the county of Carroll, known as the east half of the southeast quarter of section twenty-nine, the north-east quarter of section thirty-two, and the west half of the north-west quarter of section thirty-three, in township sixteen, range two, east, for the sum of $5000. That, some time thereafter, the said Mary Ann, becoming dissatisfied with her purchase, transferred the same to her mother, Acenath W. Avick, widow of William L. Avick, deceased, who was at that time, together with Hiram G. Runnels, executrix and executor of the last will of the said William L. Avick, and remained so for some time thereafter. That the said Acenath thus becoming the vendee of the land, together with Runnells, executed to the complainant, some time in the month of September, in the year 1836, two promissory notes, for the sum of $2500 each, that being the amount agreed upon as the price to be paid for the lands. One of the said notes was made payable on the day of 1836, and the other on the 1st day of January, 1837. The first named note was paid at its maturity, or some short time thereafter; and on the 23d day of December, 1837, a payment was made on the-last note, amounting to $1330 89, the remainder being still due and unpaid.
    That, on the 27th day of June, 1838, he, being induced by the promises made by the said Acenath W., that if he would, make and execute titles to the said lands, so that she might be enabled to mortgage the same to the Union Bank, she could, borrow from said bank an amount that would enable her to pay to him the residue due to him on said note, and, being in needy circumstances, consented to convey the land by deed, and did so convey the same to the said Copes and wife, who, some short time thereafter, conveyed the same to the said Acenath W. By some mistake of the register of said county, his deed was improperly admitted to record, it not having been acknowledged by him prior to its enrolment. That the said Acenath W. in the fall of 1839, died during her widowhood, and whilst she was executrix as aforesaid, and that letters of administration, with her will annexed, were granted to Jackson C. Rawlings, of the county aforesaid, who was proceeding to wind up her affairs when he was arrested by an injunction issuing out of this court, at the instance of Copes and wife, Harman R., Hiram, William, Gertrude, and Eliza Avick, children and distributees of the said William T. Avick. That they set forth in the bill filed by them, that the lands were purchased by the said Acenath W. out of the proceeds of the estate of the said William L., and that of right they should belong to them. They also in their bill set up a like claim to almost all the property found in the possession of the said Acenath W. at the time of her death, and contend no portion of it is subject to the debts of her contracting.
    Clower further states that Runnells, sometime before the death of Acenath W. surrendered his executorship of the will of the said William L., and was then insolvent. That since, the said Copes had taken out letters of administration de bonis non, with the will annexed, of said William L., and had taken possession of said lands, together with every article of property of said Acenath W., claiming it as the property of the said William L. Avick, deceased.
    Clower filed with his bill a copy of the note mentioned in it, together with the credit placed thereon; also a copy of the bill filed by the Copeses and the children of William L. Avick. He prayed that the lands might be sold, or so much thereof as might be sufficient to discharge the amount due to him, with interest. All of the defendants, except J. C. Rawlings, demurred ; the demurrer was sustained, and complainant’s bill dismissed, without prejudice to the complainant’s rights at law. Whereupon the complainant prosecuted this appeal.
    
      A. C. Baine, for appellant.
    1. It is everywhere held that the taking a security (note, bill of exchange, or even a distinct and independent security, as a mortgage on another estate, or pledge of other property,) is not a waiver of the lien. See 2 Story’s Eq. 470, § 1225; Nairn v. Prowse, 6 Ves. 752, and authorities cited in Story. The taking such security makes it but a prima facie case at most, against the vendor. But Judge Story says : “ If a security is taken for the money, the burden of the proof lies on the vendee lo show that the vendor agreed to rest on that security.” § 1225. And, in the previous section, he says: “If, under all the circumstances, there remain a doubt, the lien attaches.”
    2. But it is not necessary to labor this point; for the facts charged positively show that the lien was not waived when the vendor took Mrs. Avick’s note, with Runnells as security. That was in September, 1837, and the deed was not made till June, 1838. How then can an inference be drawn that the taking of that security was a waiver of the lien? Waived how? In whose favor ? Whose rights are prejudiced by it ? Is the vendee ever permitted to make this objection, upon an implied waiver ? In favor of subsequent purchasers, and creditors, it may, by implication, be waived.
    3. And this brings us to the attitude of the parties resisting the enforcement of the lien. They are, two of them, in the first place, the actual vendees of this land; and are all the heirs at law, both of Acenath W. Avick and William L. Avick. Yet they seek to create a resulting trust in this land, against their mother, in favor of their father. It would seem rather a hard case that a resulting trust, a mere creature of equity, as the vendor’s lien is, should displace that lien. How can it arise before the land is paid for? When that shall be answered satisfactorily, we shall have learned something that no lawyer ever suspected to exist before. But suppose it could arise, what then would be the attitude of the parties? Put them as heir to whom you will, they cannot have the land without paying for it. If they claim as heirs of Acenath Avick they must pay for it before they can get it.
    4. But it will appear by the bill that we have no legal remedy to enforce payment of this bond; for the exhibit “ B” made a part of it, being the sworn statement of the defendants themselves, shows the estate of Acenath Avick to be insolvent. That is the gravamen of their equity in the bill they have filed, which we have made a part of our case. Where is our legal remedy, then, which the vice-chancellor seemed desirous not to prejudice ?
    5. We can maintain this bill under a distinct head of equity, from that of a vendor’s lien. We may consider it as a bill to subject equitable assets, such as cannot be reached by an execution at law. It is true, as a general rule, such a bill cannot be sustained without an execution returned nulla bona. But where from the nature of the property itself, or the circumstances of the particular case, a legal execution cannot be levied on the property, as some franchises, for instance, then no such prerequisite is required. But this is a much stronger case; for by law no execution can issue, after an estate is reported insolvent. Hence there can be no legal ground to turn us over to, as the vice-chancellor has done in this case.
    
      W. G. Thompson, for appellees.
    The appellant waived his lien on the land for the purchase-money. See 3 Sugden on Vendors, 123, § 15, and authorities cited in the notes; Burke v. Gray, 6 How. R. 527; 4 Kent, 153, and authorities cited in note.
    
      William Thompson, on the same side.
   Mr. Justice Teacher

delivered the opinion of the court.

Clower filed his bill in chancery to obtain a decree of sale of land for the payment of a balance due upon certain notes which he claimed to have received as security for the purchase-money of the land. The object of the bill is to enforce an alleged vendor’s lien. The bill alleges that the land was originally contracted to be sold to Mary Ann Davis, now the wife of Joseph T. Copes, but that she became dissatisfied with the purchase, and transferred it to her mother, Acenath W. Avick. At this time Acenath W. Avick and Hiram G. Runnells were executrix and executor of the will of William L. Avick, the deceased husband of said Acenath, and they executed the notes in question in their individual names, the former as principal and the latter as security. About twenty-one months after the execution of the notes, Clower was induced, by the representations of Mrs. Avick, who proposed to obtain a loan of money from the Union Bank, then about to commence operations, by a mortgage of the land, and with a portion of the loan to pay the balance due upon the notes, to convey the land to said Copes and wife, who thereupon conveyed it by deed to Mrs. Avick. Upon the death of Mrs. Avick, which occurred at about a year after the conveyance, letters of administration, with her will annexed, were granted to Jackson C. Rawlings, and while he was proceeding with this trust, the children and heirs at law of said William, filed their bill in chancery, alleging that the land conveyed to Mrs. Avick had been paid for, as far as payment had been made, with the proceeds of the estate of said William, and that it, of right, together with nearly all the property found in the possession of Mrs. Avick, at the period of her decease, belonged to them. The effect of this claim, if successful, would be to sweep away all resources to which Clower could apply for the collection of the balance due upon the notes, if also his alleged lien upon the^land were rejected as invalid. The bill likewise charges Runnells to have become insolvent; and that Copes, who has since obtained letters of administration de bonis non, with the will of William L. Avick annexed, now holds possession of the land as appertaining to the estate of said William L. Avick.

In a sale of real estate, payment constitutes a part of the contract, and therefore when the whole, or any portion of the purchase-money remains unpaid, it is a rule, derived from the Roman law, that the vendor has a lien upon the real estate sold, for the purchase-money remaining unpaid. This lien, which is a parcel of the contract itself, and constitutes the vendor’s privilege and security, subsists against the vendee, and his heirs, and against all others who take under him with notice. Brown v. Gilman, 4 Wheat. 256; Bayley v. Greenleaf, 7 Wheat. 46; Tompkins v. Mitchell, 2 Rand. 428; Mitf. Pl. 306. The lien may, however, be waived or relinquished; but the questions what shall amount to a waiver or relinquishment, and what shall amount to an express or tacit abandonment of the lien, are involved in some difficulty. The same is true of the inquiry how far the taking a distinct security for the purchase-money shall be held to be a waiver of the implied lien.

In the case of Hatcher's Administrator v. Hatcher's Executors, 1 Rand. 53, the purchaser of a tract of land, gave bonds with personal security for the purchase-money; but neither took a conveyance nor paid the money. It was there held that the vendor did not lose his lien upon the land, by having taken personal security. Upon the principle of this authority, so long as no conveyance was made by Clower to Mrs. Avick, although he had received Runnells as her surety upon her note for the purchase-money, his equitable lien on the land may have subsisted; but when he executed the conveyance to Copes and wife, he placed himself in an attitude of a different character.

The rule that where a party has carved out his own security, the law will not create another in aid, is of very early authority. Bond v. Kent, 2 Vern. R. 281. And although Lord Eldon, in Mackreth v. Symmons, 15 Vesey, 329, was inclined to doubt the full extent of this doctrine, and to hold that whether the taking of a distinct security will have the effect of waiving the implied lien, depended altogether upon the circumstances of each case, yet judge Story, in Gilman v. Brown et al. 1 Mason’s R. 212, in which casehe reviews to some extent Lord Eldon’s views in Mackreth v. Symmons, says that, on a careful examination of all the authorities, he could not find a single case, in which it has been held, if the vendor takes a personal collateral security, binding others as well as the vendee, as, for instance, a bond or note with a surety or an indorser, or a collateral security by way of pledge or mortgage, that under such circumstances a lien exists on the land itself. He adds, that looking to the principle, upon which the original doctrine of lien is established, he has no hesitation to declare, that taking the security of a third person for the purchase-money, ought to be held a complete waiver of any lien upon the land; and that, in a case standing upon such a fact, it would be very difficult to bring his mind to a different conclusion.

But testing this case according to the less strict rule, and giving consideration to its peculiar circumstances, and they amount to evidence of a manifest intention to rely no longer on the equitable lien subsisting on the land. After retaining the lien by withholding a deed of conveyance of the land for nearly two years, he consented to execute a deed of conveyance. This conveyance he was persuaded to make for the avowed purpose of enabling his vendee to raise money by a mortgage to the Union Bank, and thus to aid her to pay the balance due upon the purchase-money. Had he designed to retain the equitable lien upon the land, it might have continued such an incumbrance upon the land as would have defeated the effort to obtain the loan to be secured by the mortgage, one of the objects of which loan was to raise money to liquidate the balance due upon the purchase-money. The conveyance was, therefore, an act evincing a determination to abandon the equitable lien, because it was an agreement to rely upon an express pledge of the land for the payment of the balance due upon the purchase-money.

By considering the case, however, according to the rule, the same result seems inevitable. The contract of sale was made with Mrs. Avick by transfer from Mrs. Davis, and the deed of conveyance was executed to her individually. It is not pretended that Mrs. Davis contracted or executed the deed to her as executrix. The notes given to secure the purchase-money were made in the individual names of Mrs. Avick and Runnells, and at the time the deed of conveyance was delivered, a considerable portion of the purchase-money had been paid. The delivery of the deed must be considered as a voluntary and complete waiver of any lien upon the land, and the vendor must look to his personal security.

Decree affirmed.  