
    William Carter v. Lucinda J. Sims et als.
    
    1. Vendob’s Lien. Subrogation of surety. Sub-vendee. Assignment of Mote. Priority, A vendee of land, with a lien reserved, sold to a sub-vendee a part of the land, and transferred to his vendor notes of his vendee for purchase money, which were entered as credits on his own purchase notes. A surety on notes for the original purchase, who had made payments, was held to have a lien preferred to the lien of the vendor, on the land sold to the sub-vendee.
    2, Decebe oe Sale. To bar Redemption. A sale of land, without redemption,, ordered by a decree which does not show that the credit is allowed on application of the complainant, is void, and will, on appeal taken after it is made and confirmed, be set aside, and a re-sale ordered
    EJROM WILSON.
    In Chancery at Lebanon. The transcript does not show what Judge was sitting when the decree of sale was made. Henry Cooper, J., entered the decree confirming the sale, etc. John P. Steele, Ch., rendered the decree upon the merits.
    The clause in the decree for sale referred to in the opinion, which orders the sale, is as follows: “Therefore, the Court is content to order the sale of the last mentioned part of said land, the sixty-five acres, more or less, remaining unsold, on a credit of six, eighteen, and twenty-fimr months, without equity of redemption.”
    A sale was made February 12, 1867, at which Wm. Carter became the purchaser, which was reported to the April Term, 1867, and confirmed. The decree appealed from was entered at December Term, 1867.
    
      Jas. J. TurNER and E. I. Golladay, for tbe complainant,
    Carter, argued that Beard accepted the two notes of Odom, and credited on each of the two notes of Sims the amount of one of Odom’s notes, and then transferred these notes, they being the only ones outstanding, with the credits on them, to Ragland, to whom they passed as the only existing' liens on the land. That Carter, the surety, paid these notes, and was subrogated to the rights of Rag-land, against whom Beard was precluded from setting -up his lien; that Carter was thrown off his guard by the credit, and prevented from taking steps to secure himself.
    They cited as to vendor’s lien: 2 Head, 131, 2; 3 Head, 539; Fogg v. Rogers, 2 Cold., 293; 5 Yer., 205; 7 Id. 9; 10 Hum., 374.
    A lien once waived, cannot be enforced: 32 Ill., R., 66; nor can one enforced for part: 4 Sneed, 346.
    Subrogation: 4 Hum., 319, 320; 2 Head, 202; Id., 549; 2 Cold., 91, 93.
    Notes received in payment: 2 Parsons on Bills and Notes, 150 to 158; Union Bank v. Smiser, 1 Sneed, 501; 8 Yer., 176; 21 Pick., 231.
    Motley, for Beard,
    cited 9 Hum., 508.
    CaNtrell, for Sims’ heirs, insisted that the sale of the land without redemption, was void: Code, 2124; Burrow v. Henson, 2 Sneed, 658. That the sale of Odom’s land, without answer or pro eonfesso, was void: Wright v. Wilson, 2 Yer., 294; Code, 4369, 4373; 1 Danl. Ch. Pr., 570; Reese v. Woodruff, 4 Johns. Ch. 547.
   TueNey, J.,.

delivered the opinion of the Court.

In March, 1859, Daniel Beard sold to P. J. Sims a tract of land in Wilson county, of one hundred and thirty-one acres, for the sum of $2,620; two hundred dollars in cash, the balance secured by three notes- of Sims’, with William Carter and Alfred Bass, securities, due respectively 25th Dec., 1859, 1860 and 1861; the first for $673.33, and the other two for $873.33 each. Beard made a deed to Sims, retaining a lien for the security of the purchase money. The deed was executed and registered 19th March, 1859. In October, 1859, Sims sold sixty-five acres of the land to David Odom, for $1,625, Odom executing his notes for the purchase money, and taking bond for title. Odom sold to William Smart.

On the 30th of August, 1860, P. J. Sims transferred and delivered to Beard two of the notes of Odom, each for $541.66, in part payment of the money owing on his purchase. Sims died intestate and insolvent, in 1863. Carter, one of the securities, paid off one of the notes of Sims to Beard, to an assignee of Beard, and from an imperfect record, we think it probable he paid an additional amount as security for Sims. In March, 1866, Carter filed his bill, charging that he had paid the second and third notes in part, asking that a lien for his benefit to the amount paid by him be declared on the tract of land, and that it be sold, etc.

Odom, who is made defendant, answers and resists the lien of Carter, until he shall have been indemnified for tbe payments made by him, or for which, he may be liable on account of his notes to Sims, transferred to Beard.

Beard filed a cross bill, iii which he claims a lien on the entire tract, for the original purchase money, and insists that the two notes of Odom, transferred by Sims, are a lien on the sixty-five acres. An account was stated, ascertaining the amount due Beard. The report shows that there is due him (Beard) $1,'113.06, and that the amount consists of the two Odom notes.

The pleadings all show that Beard received these notes in part payment, and actually eiitered them as credits on the notes of Sims, on which Carter was security.

The Chancellor decreed that, for these Beard had the prior lien. This was error. Beard received them as payments, and is boxnd by it. The security- of Sims, and Sims himself, wore discharged from liability to that extent.

It appearing that these notes were the only outstanding debts due to Beard, and that Carter as security had paid portions of the purchase money agreed to be paid by Sims to Beard, he is entitled to be substituted to the lien of Beard to the extent of the- payments by him, and this lien is superior to all others. Beard has' his lien upon such equity as Odom acquired by his purchase and title bond from Sims, but must- be postponed to Carter.

The sale, without the equity of redemption, is not authorized, as appears from the decree itself, and is void.

The land will be re-sold, and the proceeds applied, first, to the payment to Carter of the amount paid by him for Sims. The bill of Beard, as to Carter, is dismissed with costs; it may be retained to reach such interests as Odom may have after Carter is paid.

It is intimated that the proper parties are not all before the Court. The cause is remanded for the execution of a decree under this opinion, and if deemed necessary, any nominal party may be brought in. 
      
       See Denny v. Steakly, ante, p. 156.
     
      
       See Trent v. Kyle, 1 Heis., 663.
     