
    * [Philadelphia, January 2, 1838.]
    MEGARGEL and Another against SAUL and Others.
    IN ERROR.
    Ejectment cannot be maintained by the vendor of land against his vendee, or any person claiming under him, to enforce payment of the purchase-money, where a conveyance has been made, and a bond taken for the money.
    This was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action of ejectment, brought by Allen Megargel and John Dewees, trustees of Joseph Lewis, an insolvent debtor, against Joseph Saul, Israel Lancaster and Ann G. Lewis, to recover possession of a certain tract of land, situate in the county of Philadelphia.
    On the trial in the court below, before Coxe, J., the plaintiffs gave in evidence the petition of Joseph Lewis for the benefit of the insolvent laws, and the proceedings thereon, with the assignment to them in February, 1827, and proved the title of Joseph Lewis to the land in question. The defendant then gave in evidence a deed from Joseph Lewis to Joseph Saul, dated the 23d of April, 1825, for the consideration of $5000, expressed in the deed, and gave evidence to show that the purchase-money was applied in part to the payment of certain incumbrances; and that for the balance of $1231 40, remaining unpaid, the defendant, Joseph Saul, gave, or was to give his bond to Joseph Lewis. The defendant then gave in evidence a paper, purporting to be a warrant of attorney to John Hallowell, Esq., on which was endorsed a receipt, dated the “11th of the 10th month, 1825,” in these words: “Received the amount of the within bond,” and which was alleged to be signed by Joseph Lewis.
    The counsel for the plaintiffs contended, that the balance was, in point of fact, never paid by Joseph Saul to Joseph Lewis; and the jury could not agree upon the point; but the Court charged them that it was immaterial whether the balance was paid or not, inasmuch as the plaintiff could not recover in this form of action. To which charge the plaintiffs’ counsel excepted. The jury then found for the defendants generally; and the plaintiffs took a writ of error.
    *The only error assigned here, was in the charge that the plaintiffs could not maintain ejectment, under the circumstances of the case.
    Mr. T. I Wharton for the plaintiffs in error,
    stated the question to be, whether, as between the vendor and vendee, a lien for unpaid purchase-money exists, and can be enforced by ejectment. In England it seems to be settled that such lien exists, and may be enforced, in equity. Pollexfen v. Moore, (3 Atkyns, 272); Mackreth v. Simmons, (15 Ves. 329, 341); Sugden on Vendors, 386, &c. So in New York, Garson v. Green, (1 Johns. Ch. Rep. 308); 3 Kent’s Com. 151, (3d ed.) In Pennsylvania, it is true, that the lien has been very much restricted, but there is no decision, excluding it in a case like the present. In Stouffer v. Coleman, (1 Yeates, 398,) it was said that as between the vendor and vendee, and all claiming under the latter, with notice, the lien of the vendor for the purchase-money continues, although bonds are taken; and the same doctrine was repeated in Irvine v. Campbell, (6 Einn. 119.) In the more recent cases of Kauffelt v. Bower, (7 Serg. & Rawle, 64,) and Semple v. Burd, (7 Serg. & Rawle, 286,) it was decided that the lien did not exist against judgment-creditors of the vendee, whose judgments were subsequent to the conveyance, and some dicta even seem to deny its existence altogether; but the cases of Stouffer v. Coleman and Irvine v. Campbell has never been expressly overruled. Nor is there any- thing unusual in a lien existing as against one person, and not against another, as is shown by the case of Levinz v. Will, (1 Dall. 480,) where an unrecorded mortgage was held to be good against the mortgagor and his assignees, for the use of creditors, though inoperative against a purchaser. Then if the lien exists in this case, it is clear, that by the law and practice of this state, it may be enforced in ejectment. Galbraith v. Fenton, (3 Serg. & Rawle, 361); Gause v. Wiley, (4 Serg. & Rawle, 528); Muse v. Letterman, (13 Serg. & Rawle, 171.)
    Mr. Ingraham, for the defendants in error,
    argued, that where a conveyance is actually made, and a bond taken for the purchase-money, the vendor has no lien even in England; and that, in this state, it is now settled that such lien does not exist in any case where the vendor has parted with the legal estate.
   Per Curiam.

Ejectment can be maintained only on a title, legal or equitable, or, perhaps, in particular circumstances, to enforce a lien; and the court might have gone a great way towards the latter in Blade v. Galbraith, (4 Serg. & Rawle, 207,) had the existence of the lien been established. But it was distinctly asserted, and, we trust, unalterably established in Kauffelt v. Bower, (7 Serg. & Rawle, 64,) that there can be no lien in any case where the vendor has conveyed the legal title. In the other cases, the title was the foundation *of the action which was brought, at least ostensibly, in disaffirmance of the contract, not on it; and in no case has it been pretended, that ejectment lies to enforce payment of a bond, unassisted by the title, for the purchase-money. Such was the action here, an'd it was properly held not to be maintainable.

Judgment affirmed.

Cited by Counsel, post 490; 8 Watts, 50; 9 Id. 510; 3 Barr, 76; 5 Casey, 416.

Cited by the Court, 2 Harris, 542; 12 Wright, 100. 
      
      
         Unless by express agreement, 7 Watts, 147; 9 Id. 16; 13 Wright, 13, 153.*
     