
    *William Jackman v. J. H. Hallock and others.
    
      Vendor's Lien — Execution against Lands on Judgment of Justice.
    
    'The assignee of a note given for purchase money of land has no lien.
    Equity is not subject to lien of judgment.
    Award of execution against land upon a justice’s judgment is no lien before levy.
    This was a bill in chancery to charge certain land with the payment of a balance of the purchase money due upon it. It was adjourned for decision here from Jefferson county, and the facts of the case were these:
    The land in question was sold to Yandike by Elliot; part of the purchase money paid, but no deed given. Yandike sold to the defendant Decker, and an arrangement was made, by which Decker gave his notes to Elliot for the balance of purchase money due from Yandike, and Elliot gave to Decker a bond to convey. Two of Decker’s notes to Elliot, for the sum of fifty dollars fifty cents each, being the balance of the purchase money of the land, were assigned by Elliot to the complainant Jackman. Upon these notes, Jackman, as assignee, brought suit against Decker before a justice, and recovered judgment. Execution issued and returned do goods.
    Jackman then filed a transcript, and obtained a soi.fa. from the court of common pleas, to show cause why execution should not issue against Keeker’s lands. At August term, 1821, execution was awarded against the real estate of Decker. At this time, Elliot had not conveyed to Decker, and he had no real estate except his interest in the land in question.
    At August term, 1821, suit was brought by Decker against Elliot upon the conveyance bond, in which the defendant Halloek was attorney for Decker. At the December term, 1821, the counsel for Decker tendered a deed for the land from Elliot and wife to Hal-lock, who refused to take it, because it did not sufficiently describo the lands.
    Decker, becoming indebted to Halloek for fees as counsel, and for moneys advanced to secure the payment, and also to secure-him for becoming his bail upon an appeal bond, in January, 1822, assigned to him Elliot’s bond, then in suit. Halloek gave Decker a memorandum of the object of assigning the bond, and a stipulation to reconvey when paid and indemnified. At the time-of this transaction, Halloek knew that part of the purchase money due to Jackman *upon the assigned notes was unpaid, and knew of the legal proceeding upon these notes.
    At March term, 1822, a deed from Elliot and wife, properly describing the land, was offered to Halloek for Decker, but was-not accepted. At this term the suit of Decker v. Elliot was discontinued. This- suit was commenced in April, 1822, against Hal-lock, Decker, and others, praying a sale of Decker’s equitable interest in the land, and a preference in payment of the judgments for Jackson upon the notes taken for purchase money. The court directed a sale of the property, and that the proceeds be brought into court. The question how they should be distributed was reserved for decision here.
    Three questions were submitted for decision:
    1. Whether the assignee of the notes, given for the purchase-money of land, can enforce, in equity, the original lien of the vendor against the land?
    2. Whether Jackman’s judgment attached as a lien upon Decker’s-equitable interest in the land ?
    3. Whether, when execution is awarded by the court of common pleas against real estate upon a judgment rendered by a justice, a lien upon land attaches before levy made?
    
      Wright & Colliers, for complainant,
    submitted the case without argument.
    Hallock, on the other side,
    maintained:
    That the lien of the vendor for purchase money, though a well settled rule in equity did not extend to third persons. Upon a careful examination of the chancery reports, digests, and elementary writers, no dictum could be found suggesting such a doctrine. In Sugden on Vendors, 392, 398, and 2 Maddox, 105, it is laid down that the principle does not extend to third persons in general terms; but the cases referred to do not resemble this. He also-cited 15 Ves. 330, and 4 Wheat. 225, as containing a full exposition of the doctrine in respect to the lien of a vendor.
   By the Court:

The vendor’s lion for purchase money is founded upon an implied trust between the vendor and purchaser. The purchaser is held in equity to be the trustee *of the vendor, receiving the contract or conveyance to hold it for the use of the vendor, until the purchase money is paid. The trust attaches to the land, and follows it into the hands of a subsequent purchaser with notice, upon the-universally received doctrine that he who purchases a trust property, with notice of the trust, is bound by it. But this trust does not and can not attach to notes given for the purchase money. It is an equiety between the vendor and vendee, which the notes can not affect, but which exists in the same character, whether a note be given or not. . This equity arises to the vendor for his own safety, but it can not be transferred to another. No law has made it the subject of conveyance or assignment. It can not follow the notes, because the assignee takes in them a legal interest, and the-assignment does not purport to transfer and could not transfer an equity existing independent of them. The notes for purchase-money are evidences of debt without any reference to the consideration for which they were given ; the vendor’s lien is a substantive right, distinct and separate from the notes. The vendor may unite them by keeping the notes in his own hands; but he can not transfer both to his assignee of the notes, neither at law nor in equity. A majority of the court are of opinion that the complainant can claim nothing upon the ground of Elliot’s lien for purchase money.

Jackman’s judgment did not attach as a lien upon Decker’s •equitable interest in the land. This court have so decided in the case of Roads v. J. C. Symmes and Stanberry at this term.

An execution issued by a justice of the peace can not be levied upon lands; it follows as a necessary consequence that a judgment upon a justice’s docket can not attach a lien upon real estate. The ■proceedings upon sci. fa. is not to have a new judgment, but an execution of a particular character. Upon this sci. fa. no judgment is rendered; execution only is awarded as prayed for in the writ. This award of execution can not attach a lien upon land before levy, which is only effected by a judgment for money. It gives a now capacity to the justice’s judgment, but no. new effect. In such case, lands, like chattels, are bound from the levy and not before.

On the first point Judge Burnet dissented.  