
    GRAGGS, et al. v. BAILEY.
    1. B placed money in the hands of It, to enter at a land office, a tract of land for him; the land was entered with this money, by R, in Ms own name^ and a patent was issued accordingly; afterwards, B authorized R to sell the land for him, which was done, and the notes for tire payment of the purchase money taken payable to the latter; R delivered the notes to B> who brought suits thereon, and recovered judgments in the name of R, for his use, which remained unsatisfied: Held, that B, by suit in equity, might enforce the equitable lien of tire vendor for the purchase money; that although the notes were not assigned to him by indorsement, yet it must be intended that he received them in payment of a debt previously existing, or created simultaneously with the transfer.
    Writ of Error to tire Court of Chancery sitting in Chambers county.
    The defendant in error filed his bill, setting forth that in the year 1837, he employed William Richards to purchase for him, in the land office at Montgomery, a tract of land known and described as fraction C, of section thirty, in township twenty-four, of range twenty-five, situate in the county of Chambers, and containing 36 60-100 acres. In order to make such entry, complainant furnished Richards with $45 87á, who entered therewith the land above described, in his own name, alledging as an excuse therefor, that he had forgotten the' first name of the complainant; and a patent was, accordingly issued to Richards, in due form, on the 1st day of August, 1838.
    Richards professed to consider himself as holding the land for the complainant’s benefit, and was authorized by the latter to sell it for him; which he accordingly did on the 23d February, 1838, to Frederick duattlebum, and received from the purchaser one note for $82 52, payable on the 25th December, 1838; the other for the sum of $100, payable twelve ■months thereafter. Richards, upon the sale thus made, executed a bond by which he undertook to convey the title to his vendee, and at the same time took from him the notes payable to himself or bearer, which he handed over to the complainant. These notes, upon maturity, were sued by complainant, in the name of Richards, for his use, and judgments recovered; on the former in the circuit court of Chambers, in April, 1840; on the latter, in the county court of the same county, in July of the same year. Both of these judgments remain unsatisfied, saving only one dollar which has been jipjlected by the sale of property under an execution .is§ijgét>o^ oñe„pf them.
    It is clfd¥¿ed^,,that Frederick Quattlebum, on the 30th July ,-„.1839,..executed a writing on the bond he had received from Ric'hatdé; indicating that he had sold the land in question to ,Wm. J,: Wardlaw; and on the 9th November, 1840, Wardlaw1 ‘made a similar indorsement on the bond, stating that he’ had' made a sale of the premises to Philip Qmattle-buin.
    Complainant, a short time previous to exhibiting his bill, demanded of P. duattlebum the possession of the land in question, informing him that he was about applying to chancery for the sale of the land; who accordingly exec uted to the complainant a deed, relinquishing all his right, title and interest to the same, on the 18th February, 1842, and yielded up the possession.
    Afterwards, William Graggs, who had the direction of a •writ of fieri facias which issued from the county court of Chambers, on a judgment in favor of Sylvanus Walker against Wm. Richards, rendered on the 30th July, 1840, caused, the same to be levied on the land in question, and at a sale thereof, on the 1st Monday in March, 1842, became the purchaser; and has, or will receive the sheriff’s deed. Graggs was advised, previous to his purchase, of the complainant’s equitable lien, and his intention to enforce it. The bond executed by Richards to F. duattlebum, with the writings thereon, are in complainant’s possession, and together with the deed of relinquishment by P. duattlebum, are exhibited with the bill.
    The complainant prays that the tract of land in controversy may be sold, and the proceeds applied to the satisfaction of the judgments against F. duattlebum — and for such other relief as may be proper. All the persons mentioned in the bill as having been concerned in the purchase or sale of the land, are prayed to be made defendants, and that process of subpoena, may be awarded against them.
    The defendants, P. duattlebum, Graggs and Wardlaw, answered the bill, and it is taken for confessed as to the others ■ — after the service of subpoena as to one, and publication as to the other. But neither of the answers assume to deny the allegations of the bill — merely declaring their ignorance of the facts, and calling upon the complainant to prc
    The cause was heard upon bill, answers, ejdnbij positions, when the chancellor was of ojtoi^í, that the complainant would have been entitled had he «take land, under a trust resulting from Richards’ pflr benefit. Further, that he was entitled to an^q^j^tgTgl.léeB’ upon the land, to satisfy the judgments recove$5|d upon thg: notes given by F. duattlebum to Richards, for hiYESiwifih It was accordingly referred to the Register to ascertain the amount due on the judgments; and that unless the same be paid by the defendants, or some one of them, within sixty days, then all their right, title and interest in the land be barred, and the register proceed to sell the same, &c.j and from the proceeds, retain the costs of the sale, and this suit, &c.
    The testimony establishes the following facts, viz : The execution of the bond by Richards to F. duattlebum, and the giving of the notes by the latter in consideration of the pnrchase of the land thus evidenced.
    The deposition of the defendant, Graggs, makes a part of the transcript sent up, which, it appears, was taken at complainant’s instance. He proves the execution of the writing by which F. duattlebum professes to sell the land to Ward-law — says he caused it to be sold under execution, and purchased it under the impression that it was Richards’ property ; as the latter, as well as complainant, both informed him that the money with which ithad been entered, was returned or paid to the complainant; and the patent had issued in Richards’ name. This deposition was adduced by the defendants, the complainant declining to offer it. The judgments, the satisfaction of which were sought by the bill, were admitted to be as alledged.
    L. B. Robinson, for the plaintiffs in error,
    made the following points. 1. The complainant permitted Richards to purchase and sell the land in his own name, without disclosing his agency, and cannot assert any claim against the purchaser : to have protected his equitable rights, a purchaser under Richards should have had notice of the character in which Richards acted. 2. To have entitled the complainant to enforce a lien in equity, the notes should have been indorsed to him. [5 Ala. Rep. 363.] 3. The complainant does not make out such a case as entitles him to succeed upon the proof.
   COLLIER, C. J.

Hall’s ex’rs v. Click, et al. 5 Ala. Rep. 363, is unlike the present. In that case, the plaintiff’s testator had received the note of a third person, in part payment of property, without indorsement, and with the understanding that the party transferring it should not be liable for its payment. The consideration of the note was laud, which the party transferring it had sold to the maker. It was held, that a bill to enforce the equitable lien could not be maintained by the plaintiff. We there place our decision upon the ground that the contract under which the testator became the proprietor of the note, was not such as to transfer the lien, and as the payee had stipulated that he should not be chargeable with the maker’s default, it could not be enforced by his transferee.

In Roper v. McCook, and another, 7 Ala. Rep. 318, it was explicitly decided, as the leading question in the cause, that the equitable lien of the vendor of land will pass to his as-signee of a note taken from the vendee, in part payment of the purchase money, and will not be lost, though the assignee neglect to sue the maker for so long a time as to discharge the assignor from liability upon his indorsement. So, it has been held, that the lien of the vendor for the purchase money, may be enforced, not 'only against the vendee, but his as-signee, with notice, and this although the vendor may have conveyed the title in due form. To authorize the assertion of the lien in equity against a derivative purchaser, it is not necessary that the vendor should have employed a legal remedy without success. [5 Porter’s Rep. 452; 3 Ala. R. 302 ]

The evidence very satisfactorily establishes the sale of the land by Richards to P. duattlebum, and the making and delivery of notes, such as those the complainant put in suit,‘ and the fact that they were in his possession, and judgments have been rendered in the name of Richards for his use, in the absence of opposing proof, show, prima facie, that he was their rightful proprietor. Assuming that the land in question was the property of Richards, and was sold upon his own account, and still, we think, the complainant is entitled to the relief he seeks. In this view, it must be presumed that the complainant received the notes from their payee, either in payment of a pre-existing debt, or a debt simultaneously created ; and upon either hypothesis, Richards would be liable for the original debt, when the term of credit stipulated by the notes, expired. [Chitty on Bills, 9, Am. ed. 195, etpost.] As to Richards then, the lien was not lost, and we think silently as an incident to the notes, it passed to the complainant.

We have thrown out of view every thing that is alledged in the bill, going to show a resulting trust as a gainst Richards ; because no relief is prayed upon the case in that point of view.

Our conclusion is, that the decree must be affirmed.  