
    Case 17.
    Neal, &c. vs. Davis.
    Pet. Eq.
    APPEAL FROM M’CRACKEN CIRCUIT.
    1. The 26l7t section of the Revised Statutes, page 542, was intended to protect purchasers, and does not proteet the land in the hands of the vendee or a volunteer deriving title from the vendee from liability for the payment of the consideration.
    [The facts of the case are given in the opinion of the court. — -Rep.]
    
      Jno. Rodman for appellant—
    Argued — 1. That Davis had lost his lien upon the land for the payment of the balance of the consideration, if any was unpaid, by conveying without any reservation of lien on the face of the deed. {Rev. Stat. sec. 2&,page 543.)
    2. That it was improper to decree-the payment by Rudolph of the balance due from him to Neal, as he had disclosed in his answer that Neal had sold his note to a third person.
    
      J. B. Husbands for appellee—
    1. The judgment of the circuit court is right, and the facts appearing in the record fully sustains it.
    2. The court did not err in refusing the new trial upon the grounds set out in the petition. No reason is given why the application was not made in three days after the judgment. {Sec. 371 and 369, Code of Practice.) And it is no where alledged that the grounds for a new trial were discovered after the judgment was rendered.
    June 28.
    The 26th section of the Revised Statutes, page 542, was intended to protect purchasers, and does not protect the land in the hands of the vendee or a volunteer deriving title from the vendee from liability for the payment of the consideration.
   Chief Justice Marshall

delivered the opinion of the court:

The 26th section of the Revised Statutes, title Real Estate, page 543, does not absolutely destroy the vendor’s lien for the unpaid purchase money if the amount be not stated in the deed, but was intended to operate in favor of subsequent purchasers, by relieving them from the necessity of inquiry, and from the presumption of notice, which had been held to arise from a general statement in the deed implying that all of the purchase money had not been paid. The lien still exists upon equitable principles against the vendee, who must know if the price is not paid, and against volunteers under him, who can occupy no better position than he does himself. Testing the judgment in this case bjr these principles, neither William Neal, the original purchaser, nor James Neal, who received the title without valuable consideration, has any right to complain of the appropriation of a part of the purchase money for the same land, due to James Neal from his vendee, Rudolph, towards the payment of so much of the price due to Davis, for which the land being bound in the hands of James Neal, the price due and payable to him upon his sale to Rudolph is also liable in his hands. Rudolph, therefore, the purchaser from James Neal, has no right to complain that he is required to pay to Davis the $40 remaining due on his purchase from James Neal. The judgment makes this transfer operate expressly as a credit upon the demand adjudged to Davis, and provides that its payment shall extinguish Rudolph’s liability to James Neal. Rudolph, it is true, states in his answer that James Neal has sold his note for the $40. But he does not state to whom, nor that it had been sold or transferred before the commencement of this suit, or before the service of process on himself and James Neal. And there is no other suggestion that the note has been assigned. It cannot, therefore, be assumed that it was assigned before it became involved in this action, in which it is specially referred to by the plaintiff’s petition. And if Rudolph should suffer any detriment from its having been previously assigned, it will have been by his own fault in not disclosing the fact, or at least the name of the assignee.

Wherefore, the judgment is affirmed.  