
    JULY TERM, 1843.
    David Carnes vs. John Hubbard, et al.
    A vendor’s lien cannot be enforced against sub-vendees without notice.
    David CaRNes filed his bill in the district chancery court charging that on the 30th of August, 1838, he sold and conveyed to John Hubbard, one quarter of a section of land, lying in Carroll county, for twelve hundred dollars; -for which sum, Hubbard executed and delivered his-promissory notes to Carnes'; that on the 3d of September 1838, Hubbard sold and conveyed the same land to Wilson Hemingway, who, on the 15th of February 1840, conveyed about one half thereof to William F. Richards ; that he took no security, other than the notes signed by Hubbard alone, for the purchase money, but relied solely on his equitable lien on the land to secure the payment thereof; that about one half of the purchase money remains unpaid, Hubbard is totally insolvent, and that he has no other means of obtaining paymeut than by enforcing his equitable lien on the land. The bill further charges, that Hubbard pretends to have paid the balance of the purchase money by the assignment of a judgment rendered in the circuit court of Carroll county, in his favor against one J. Thompson for about $ 850; that at the time of said transfer, Hubbard represented Thompson to be good for the money, and that the sheriff was also liable for the whole amount, he having levied on a negro which he permitted afterwards to escape, which pretence and representations were false and fraudulent; that the execution against Thompson was returned “ nulla bona,” and the sheriff could make nothing out of him; that Hubbard had conveyed away the land before the date of the transfer of the judgment, and that Hubbard’s sole object in making the transfer was to invest him with authority of demanding the money, when collected of the sheriff. Hubbard, Hemingway and Richards are made defendants, and a sale of the land prayed to satisfy the balance of the purchase money.
    
      Hemingway’s answer admits the several sales and conveyr anees of the land as charged in the bill; but denies that at the time of his purchase from Hubbard he had any knowledge that the complainant pretended to hold any lien whatever on the ■land. He does not know whether the complainant took security from Hubbard for the payment of the purchase money or not, nor does he know what part thereof, if any, remains unpaid; and requires strict proof. Denies all fraud, &c.
    Hubbard, in his answer, admits the purchase of the land at $ 1200, but: states that he paid .$ 200, in cash and gave his three notes for the balance. One for $ 500, and two others for $250 each. He admits he gave no security for the purchase money. He also admits the conveyance of the land to Hemingway, and by Hemingway to Richards, as charged in the bill; but denies that any part of the purchase money remains unpaid to Carnes. He states that he paid the two small notes about the time they fell due, and the large note, which was indorsed and transferred by Carnes, was afterwards sued on, and judgment recovered in the Carroll circuit court, by Kilburn A. Buell, against both Carnes and himself. The execution which issued on the judgment was levied on the property of Carnes, and a forthcoming bond given by him, and forfeited. Subsequently to the forfeiture of the bond, he discharged the debt to Carnes, by giving him a horse, buggy and other property at $ 290, and assigning a judgment rendered in the Carroll circuit court in his favor, against J. Thompson, for about $ 460, and refers to Carnes’s receipt, filed with his answer, which is in the following words and figures, to wit: “I hereby agree and promise to John Hubbard, in consideration of six hundred dollars paid to me by the said Hubbard, to pay and fully satisfy an execution in favor of Hirhm Buell issuing out of the circuit court of Carroll,-against the-said Hubbard and myself, and bonded by me and William G. Herring, to the April term of said court, A. D. 1840. David CaRnes.”
    “ April 29th, 1840.”
    In the receipt, the answer avers there is a mistake in the Christian name of Buell; it should have been “Kilburn A.” instead of “ Hiram.” The property and judgment were given to Carnes at $ 600, and were received by him in full satisfaction of his claim against Hubbard for the balance due on the land purchased, he having previously consulted the sheriff and clerk in regard to the solvency of Thompson, and the prospects of collecting the judgment against him. Hubbard’s answer further denies that he made any false or fraudulent representations to Carnes, touching the judgment against Thompson, and asserts that Carnes well knew at the time he received the transfer of the judgment, that Thompson had left the state.
    Richards did not answer, and a pro confesso was taken against him.
    The depositions of several witnesses were taken by Carnes, to prove the fraudulent representations made by Hubbard at the time of the assignment of the judgment against Thompson, who testify, in substance, that they were present when the settlement was made between the parties; heard Hubbard say the judgment could be collected, that a negro had been levied on and afterwards permitted to escape; and the sheriff was liable for the whole debt; that Hubbard referred Carnes to the sheriff and clerk to learn the situation of the claim against Thompson; and that Carnes did consult them before the arrangement was closed. They saw Carnes execute his receipt, and understood him to take the property and judgment in absolute payment of the debt due him by Hubbard.
    The chancellor dismissed complainant’s bill, and the complainant removed the case to this court by appeal.
    Sheppard, for appellant.
    1. The judgment obtained against Hubbard as maker, and Carnes as first indorser, having been satisfied by Carnes as to Hubbard, he remains liable to Carnes on the "note, unless the defence of payment is sustained by the proof.
    2. The negotiation of this note by Carnes did not defeat his equitable lien; prima facie a lien exists in favor of the vendor. The defendant, to defeat the lien, must show that his vendor was discharged as indorser, on negotiating the note given for the land. Such is the rule as settled by this court, in case of Briggs, Lacoste & Co. v. Hill, Opinion Book, 245.
    3. The payment was obtained by fraud, unfairness, and in bad faith; it is void and does not bar the right of complainant to resort to his original debt. See Wilson v. Force, 6 J. R. 110.
    4. Hemingway not having paid the purchase money for the land cannot claim protection as a bona Jide purchaser. See Fonb. Equity, marg. page, 444.
    Thompson, for appellees.
    The bill does not state a case entitling the complainant to relief. The allegation is, that complainant sold and conveyed, the quarter section of land to Hubbard. That “ in consideration of the conveyance aforesaid, the said John Hubbard executed and delivered his promissory notes for the sum of twelve hundred dollars, that being the amount of the purchase money for the same, payable to your orator.” The bill states'that Hubbard sold and conveyed the land to Hemingway, and Hemingway sold and conveyed half the land to Richards.
    The bill does not state the amounts, dates, time paymble, &c. of the notes for the purchase money, nor does it file them as exhibits with the bill, nor are they filed as proofs in the cause. The bill states that one half the purchase money is still due, between six and seven hundred dollars. The deed is not filed nor a copy of it either as an exhibit, or as proof. The proof of complainant, shows that he had assigned away the note to which he attempts to subject the land under the vendor’s lien.
    This court have decided the lien does not pass with the assignment.
    The complainant cannot succeed, by showing by parol that he had been sued as indorser, and had paid the amount of the judgment rendered agaihst him in said suit. 1. This fact could only be proven by the record, i. e. the fact of his having been sued as indorser, &c. 2, The lien was gone by the indorsement of the note, and could not be restored by the vendor being sued and compelled to pay the notes; this would create a new relation between him and Hubbard, and would not restore the relation of vendor and vendee. And again this would be a case entirely different from that set up in the bill. The complainant could not get on with his bill without exhibiting the note for the purchase money; he asks for a decree upon that; he cannot produce it, for he had parted with it. He should have made an exhibit of the deed. He should have stated that Hemingway and Richards were purchasers with notice. This is not done. The bill is taken for confessed against Richards, which places the complainant in no better situation than a demurrer would have done.
    The answer of Hemingway puts the complainant upon the proof of his case, and acknowledges nothing which can better his claim to relief, or place him in a better condition than his own bill places him.
    If the proof established a case showing the complainant would be entitled to relief upon a bill with different allegations, still he could not succeed on the present bill.
    “Although the plaintiff should make out in evidence a good case, which, under other circumstances, would secure the interposition of the court, yet, if it be not the case made by the bill, it will not do.” Jackson’s assignees v. Outright, 5 Munf. 314.
    “ A party cannot travel out of the matter alleged in the bill to make a ground of relief.” Bank of United States v. Schultz, 3 Ham. 62.
    A fact not alleged, though proved, cannot form the basis of a decree ; but must be disregarded. Morrison’s executor v. Hart, 2 Bibb, 4. Lernaster v. Burkhart, 2 Bibb, 26.
    If the complainant omits to state an equitable case in his bill, the court cannot notice it though established by proof. Dilly v. Heckrott, 8 Gill & Johns. 171.
    It is acknowledged in the record, that Hemingway had not paid the purchase money. There is no charge of the kind in the bill, and the proof cannot aid this defect.
    There is no proof of the fact in relation to Richards. The above principle recognized in the cases cited, does not conflict with the decision of this court, in the case of Cable v. Martin, 1 How. Rep. 558; the principles of that case, and of those above, are of a different character.
    
      Counsel for appellees rely, _that the foregoing consideration of the case shows that the decree dismissing the bill, was correct, but they also contend that from the proof in the cause introduced under the answer of Hubbard, it appears the debt to complainant has been paid.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed to assert a" vendor’s lien under peculiar circumstances. There is however but a single point, which it is necessary to notice.

After a large portion of the purchase money had been paid, Carnes, the vendor, made an arrangement with Hubbard, his vendee, by which he accepted certain articles of property, and the transfer of a judgment which Hubbard had against a man named Thompson, as payment of the balance, and gave him an instrument which is equivalent to a receipt. The judgment against Thompson proved to be worthless, and Carnes filed this bill against Hubbard and two sub-vendees, to subject the land to the payment of the same balance. The bill does not charge the sub-vendees with notice, or that the purchase money from them is unpaid, though it is admitted that it is unpaid.

Evidence has been taken to explain away the receipt of, Carnes, and to show that it was conditional, and to show moreover that Hubbard practised a fraud upon the complainant, by misrepresenting the situation of Thompson. We think, however, that the testimony establishes the fact, that Carnes took the judgment as an absolute and unconditional payment. He consulted others as to the situation of Thompson, acted upon his own conclusions, took the judgment, gave the receipt, and consequently abandoned his lien. He now seeks to be restored to it. Upon a bill to set aside the settlement upon the ground of fraud, alleging notice of the lien on the part of the sub-vendees, and charging that they have not paid their debt to Hubbard, the complainant might perhaps be entitled to relief, if he cottld make out his case by proof.

But this bill is not framed to put the alleged fraud in issue, nor does it seek to set aside the settlement for that cause; but simply to enforce the vendor’s lien, notwithstanding the arrangement made with Hubbard. In this attitude of the cause we do not think that the complainant is entitled to the redress he seeks, and we therefore direct the decree of the court below, dismissing, the bill, to be affirmed. But we direct this to be done without prejudice to any future bill he may file, if he chooses so to do, to set aside the arrangement with Hubbard, on the ground of the fraud. On all the other points in the cause, we wish to be understood as giving no opinion, and as intimating none on the fact of the alleged fraud.

Decree affirmed.  