
    *Tompkins v. Mitchell.
    May, 1824.
    Real Estate — Joint Purchasers — Unequal Payments— Lien on Property for Excess — Priority of Liens. — A. and B. are joint purchasers of real property. They give their notes for the payment of the pur_ chase money, and receive a conveyance from the vendor. B. becomes insolvent, and A. pays more than a moiety of the purchase money. A. has a lien on the property to reimburse him all that he has paid above one moiety of the purchase money, in preference of the creditors of B. claiming under a deed of trust from B., unless they appear to be purchasers without notice.
    This was an appeal from the Chancery Court of Richmond. The facts of the case will be explained, as far as necessary, in the following opinion.
    Nicholas, for the appellant.
    No Counsel, for the appellee.
    May 12.
    
      
      ReaI Estate — Joint Purchasers — Unequal Payments —Lien on Property for Excess. — If one cotenant has paid more than his just share of an incumbrance on the common property, or has advanced more than his proportion of the purchase money, the court may decree that payment of the excess be made to him. and. in default of such payment, that the moiety of the tenant in default may be sold to satisfy the amount equitably due from it. Grove v. Grove, 100 Va. 556,42 S. E. Kep. 314, quoting from Freeman on Cotenancy and Partition (2 Ed.), sec. 805: and citing the principal case and Ballou v. Ballou, 94 Va. 350, 26 S. E. Rep. 840. to sustain the proposition. See principal case also cited with approval in Dobyns v. Rawley, 76 Va. 539.
      Vendor's Lien, — See principal case cited on this subject in Poe v. Paxton 26 W. Va. 611; foot-note to Redford v. Gibson. 12 Leigh 337, containing excerpt from Poe v. Paxton, 26 W. Va. 611; McCandlish v. Keen, 13 Gratt. 622.
      Subrogation. — On this subject the principal case is cited with approval in Ford v. Thornton, 3 Leigh 700; Enders v. Bruñe, 4 Rand. 445; Powell v. white, 11 Leigh 332: Ragsdale v. Hagy, 9 Gratt. 427; Dobyns v. Rawley, 76 Va. 539; Sands v. Durham. 99 Va. 268, 38 S. E. Rep. 145. See further, monographic note on “Subrogation” appended to Janney y. Stephens, 2 Pat. & H. 11.
      Purchaser without Notice — Answer of Averments in. — A purch aser, who claims to be a purchaser for value without notice, must expressly deny notice in his answer, though it is not charged in the bill. This is settled law. To sustain this rule, the principal case is cited in Borer Iron Co. v. Trout, 83 Va. 415, 2 S. E. Rep. 713.
    
   JUDGE CARR,

delivered the opinion of the Court.

This is an appeal from a dissolved injunction. Mitchell and Tompkins purchased jointy the land in question. For the purchase money, ($7,200,) three negotiable notes were given, executed by Tompkins, and endorsed by Mitchell. The vendor took no other security. A deed was executed to the, vendees jointly. Mitchell failed; and Tompkins had to pay two of the three notes, making $1,200 beyond his moiety of the debt. .He also made some permanent improvements, and, as Mitchell alledges, received the rents. Mitchell, on his failure, conveyed to trustees, for the benefit of his creditors. The bill was filed to stay these trustees from selling Mitchell’s interest in the land, and to subject that interest to the reimbursement of Tompkins, for the excess of the purchase money paid by him. The Chancellor dissolved the injunction, *and dismissed the bill, on the ground, that the vendor, having retained no lien, legal or equitable, the plaintiff could acquire none by paying money for Mitchell; and, therefore, could only be considered as a simple contract creditor. On this point, this Court differ materially from the Chancellor. They consider it settled law, that the vendor has a lien on the estate, for the purchase money, while in the hands of the vendee, volunteers, or purchasers with notice: that prima facie, the purchase money is a lien on the land; and it lies on the purchaser to shew, that the vendor agreed to-rest on other security: that, taking a note for the payment of the purchase money, does not affect the vendor’s lien; and, if part be paid, the lien is good as to the residue, and the vendee becomes a trustee as to that which is unpaid. For these doctrines, we refer to the cases of Auston v. Halsey, 6 Ves. 483; Nairn v. Prowse, Ib. 759, 760; Mackreth v. Simmons, 15 Ves. 328; Hughes v. Kearney, 1 Sch. & Lefr. 132; Blackburn, &c. v. Gregson, &c., 1 Bro. 420; Sugden’s L. of V., ch. 12, 352; 1. Johns. Ch. Rep. 308; Wilcox v. Calloway, 1 Wash. 38; Cole v. Scott, 2 Wash. 141; Graves v. M’Caul, 1 Call, 414; Duval v. Bibb, 4 Hen. & Munf. 113. Under these authorities, wc think it clear, that in the case before us, the vendor did retain a lien on the land; as he took nothing but the notes of the purchasers for the purchase money. It is a settled rule, that a surety is entitled to every remedy which the creditor has against the principal debtor, to enforce every security; in short, to stand completely in the place of the creditor. Parsons v. Briddock et al., 2 Vern. 608; 2 Ves. 622; 2 Meriv. 437; 10 Ves. 412; Wright v. Morley, 11 Ves. 22; 14 Ves. 162; 1 Johns. Ch. Rep. 412; 2 Johns. 554; 4 Johns. 130; Tinsley v. Anderson, 3 Call, 329; Eppes v. Randolph, 2 Call, 125; Hatcher’s adm’r. v. Hatcher’s ex’r., 1 Rand. 53. As between themselves, and in relation to each other, we consider Tompkins and Mitchell, each a principal debtor for one-half of the purchase *money, and a surety for the residue; and Tompkins, having-paid $1,200 of the debt for which Mitchell was principal, stands, as to that amount, in the place of the creditor, and has a right to enforce his equitable lien on the land. Nor does it affect this right, that the land has been conveyed by Mitchell, (if, indeed, 1 it has been so conveyed,) for the benefit of his creditors; because, the trustees are purchasers with notice. This is a necessary conclusion, as they are all before the Court, (one by answer, the rest by decrees nisi,) and notice is not denied; the rule being, that he who claims protection as a purchaser without notice, must deny notice by answer, though it be not charged in the bill. In truth, if this were not so, the title of the trustees could not stand in the way of this doctrine; as the allegation in the answer, of title in them, is put in issue, and no deed to sustain it appears in the record. The position, that a surety is entitled to enforce the equitable lien of the vendor, rests upon the doctrine of substitution, or subrogation, as it is called in the civil law; (by which the surety becomes, in effect, the actual creditor;) and this doctrine does not conflict with those cases which say, that the lien of the vendor is not extended to third persons. Coppin v. Coppin, 2 P. Wms. 291; Pollexfen v. Moore, 3 Atk. 272; Sug. F. of V. 358-9. These cases mean only, that the purchased estate and the personal estate will not be marshaled; in other words, that the equitable rule which says, that he who has two securities shall not so use them, as to defeat him who has but one, does not extend to the equitable lien; and even this doctrine is strongly shaken by the late decisions, especially by Lord Eldon, in the great case of M’Kreth v. Simmonds, 15 Ves. 329, and the cases there cited.

The decree of the Chancellor, therefore, dismissing the bill, is erroneous, and must be reversed; and the cause sent back, with directions, that an account be taken of the sum paid by the plaintiff, beyond his proportion of the purchase money, as also of the permanent improvements *put by him upon the land, together with the rents and profits he has received; and that the rents and profits be set off against the permanent improvements; that the balance be set off against the excess of the purchase money, and interest thereon paid by the appellant beyond his moiety; that, for the said excess of purchase money, or so much as may remain after this deduction, with interest thereon, the plaintiff has a lien on Mitchell’s proportion of the land; and, unless the sum thus found due to hip, be paid by some one of the defendants, within six months after pronouncing the decree, that Mitchell’s part of the property be sold for the purpose of paying the same. 
      
      Jtjdgb Cabekl, absent.
     