
    Wiseman et al. v. Hutchinson.
    Notice of Vendor’s Lien. — The recital in a deed that a part of the purchase-money is unpaid, and that it is evidenced by certain notes, and that a lien therefor is retained, constitutes sufficient notice to a subsequent purchaser of the vendor’s lien, although such purchaser had no actual notice of such stipulations in the former deed.
    Where a subsequent purchaser might learn the existence of a vendor’s lien by examining the title deeds which constitute necessary links in the chain of his own title, he will be chargeable with notice of the existence of such lien, although he may not have actually examined those deeds and they may not have been recorded.
    APPEAL from the Bipley Common Pleas.
    
      
      (1) The counsel for the appellant urged the proposition, that the doctrine of an equitable lien in favor of the vendor of real estate for unpaid purchase-money, as against a subsequent purchaser, without actual notice, is inconsistent with o.ur system of registry of mortgages, and ought not to be sustained by the Courts. He cited Philbrock v. Delano, 29 Maine, 414; 1 Hill on Mort., 619, et seq.
      
      He also argued, that the recital in the deed to her grantor, that the purchase-money was in part unpaid, and that a lien was reserved therefor upon the land sold, was not sufficient notice thereof to Margaret Pemlinger, she being a purchaser, for a valuable consideration, without actual notice. In this connection, he referred mainly to the provisions of our statutes on the subject of the registry of deeds and mortgages.
    
    
      
      (2) The counsel for the appellee urged: It is settled by authority that the purchaser of real estate is presumed to have examined the deeds necessary to make out his chain of title, and under which he claims, and is bound by the recitals in such deeds, showing incumbrances or the non-payment of the purchase-money. 4 Greenleaf’s Cruse, 452; 7 Cal. R., 292; 31 Penn. St., 293; 6 O.St., 580; 2 Sugden on Ven., 430; 31 Miss., 324; 14 B. Mon., 277; 18 Ala., 741.; 24 Miss., 208; 3 Barb., ch. 52; 6 Watts & Serg., 469; Fonb. Eq., B. 3, ch. 3, sec. 1, Note B; 1 Johns, ch. 399; 2 Story Eq., §§ 399, 400; 4 Ohio, 447; 10 id., 466; 11 id., 192; 1 McLean, 533, S C.; 15 Peters, 93; 14 Texas, 318; 6 B. Mon., 67; id., 74; 7 id., 116; 10 Smedes & M., 143; 2 Sug. on Ven., 880, marg. note 2; 2 Hill on Mort,, 632.
      A vendor’s lien is an equitable mortgage. A mortgage is a mere security, and does not entitle the mortgagee to possession; and the payment of the debt renders the mortgage inoperative for any purpose. There is, therefore, no legal reason why an instrument may not operate both as a deed and a mortgage. 1 Hill on Mort., 334; 2 G. & H., (Statutes,) 355, § 1; id., 294, Note.
      It has been decided in New York, that the acceptance of a deed for mortgaged property, containing a provision that the grantee is to pay the mortgage debt, binds him as effectually as if he had signed the deed. 9 Paige, 446; id., 432; 2 Sandf., ch. 478; id., 251; 2 Denio, 595; 2 Kernan, 74; 8 Smith, (22 N. Y.,) 438.
    
   Worden, J.

Action by Hutchinson against Thomas J. Wiseman and Margaret Bemlinger upon a promissory note given by Wiseman to the plaintiff, and to enforce a vendor’s lien. Judgment for the plaintiff.

The substantial facts involved in the case are, that on the 6th of April, 1858, one' Joseph Simpson conveyed to said Wiseman cei-tain real estate, and as part of the consideration for the conveyance, by some arrangement between the parties, Wiseman executed his note to the plaintiff, Hutchinson, for 650 dollars. The deed from Simpson to Wiseman contains the following clause, viz: “A lien is retained on said premises to secure the payment of a note for 697 dollars and 4 cents, executed by the said Thomas J. Wiseman to said Joseph Simpson, due on the 6th of April, 1859, and a note for 650 dollars, executed by the said Wiseman to Jonathan C. Hutchinson, due on the 6th of April, 1860, the remainder of the purchase-money being paid in hand, said notes and interest, after due, being paid, the lien now herein retained to be null and void, and the premises to become absolute in the said Thomas J. Wiseman and his heirs forever.”

Afterwards, on the 28th of August, 1861, Wiseman, for a valuable consideration, sold and conveyed a part of the premises to the defendant, JRemlinger, who had no actual notice of the stipulations in the deed from Simpson to Wiseman, and no actual notice of the non-payment of the purchase-money from Wiseman to Simpson.

The counsel for the appellants discusses but two questions in the case, (except as to the sufficiency of the evidence upon " one point which will be noticed hereafter,) and to these questions we shall confine ourselves mainly.

“ 1. Roes the doctrine of vendor’s lien prevail in this State under the statutes of 1852 ?

“2. Was the recital in the deed of Simpson to Wiseman, that the note in suit was unpaid, and that it was a lien on the premises until paid, sufficient notice to Margaret JRemlinger, she being a purchaser from Wiseman, for a valuable consideration, with no other notice ?”

Both these questions must be answered affirmatively. There is nothing that we are aware of, in the statutes of 1852, that changes the law on that subject. The argument advanced is that, by the statutes of 1852, the Legislature intended, by providing a general system for the registry of deeds and mortgages in different books properly indexed, “ to furnish an easy, plain and complete reference, where the citizen can see at a glance the chain of title by reference to the index of deeds, and ascertain the liens on the same by referring to the index of’mortgages,” and hence, that the equitable lien, which a vendor had for his purchase-money, is abrogated. We can not concur in this conclusion. Much of the reasoning would apply to every revision of the statutes that has ever been had. There are many cases, since the revision of 1852, where the vendor’s lien has been recognized and enforced. Fisher v. Johnson, 5 Ind., 492; Kern v. Hazlerigg, 11 Ind., 443; Scott v. Crawford, 12 Ind., 410; Dibble v. Mitchell, 15 Ind., 435.

We pass to the second question. We think it clear that the defendant, Rending er, in purchasing from Wiseman a part of the land he had thus bought of Simpson, was bound to notice the fact thus recited in the conveyance from Simpson to Wiseman, that the purchase-money was not paid. 1 Story Eq., séc. 400. In Hilliard on Mort., Vol. I., page 632, it is laid down, that if the purchaser might learn the existence of the lien by examining the first vendor’s title deeds, he is chargeáble with notice of the existence of such lien. This view is fully sustained by the cases of Honore's Ex’r v. Bakewell, 6 B. Monroe, 67; Thornton, &c. v. Knox’s Ex’r, id., 74; Tiernan v. Thurman, 14 B. Monroe, 277. The case of Honore's Ex’r v. Bakewell, above cited, is also an authority that supports the lien in favor of Hutchinson, to whom a part of the consideration was to be paid.

The point made on the evidence is, that it does not appear that the deed from Simpson to Wiseman was ever put upon record, and therefore that the defendant, Remlinger, was under no obligation to notice it. - There is nothing in this objection. The registry laws have no application to the case. The defendant, Pemlinger, was bound to notice the recitals in the deed from Simpson to Wiseman, not because that deed was recorded, but because she claimed through it. That deed constitutes a part of her chain of title, and she was bound to know its contents and recitals, whether it was recorded or otherwise.

Fdioin P. Ferris, for the appellants.

Oscar B. Ford and Cortez Fwing, for the appellee.

Per Curiam.

The judgment is affirmed, with costs, and 1 per cent, damages.  