
    Arthur M. M. Upshaw et ux. vs. Seaborn Hargrove, Administrator of W. T. Caruthers.
    A vendor of land who takes no separate or other security for the purchase-money, retains a lien upon the land for its payment; and none but bona fide purchasers, without notice can set up an implied waiver of this equitable mortgage.
    To constitute a bona fide purchaser without notice, the party must have advanced a new consideration, or have relinquished some security for a preexisting debt.
    W. purchased a tract of land of H. ; and agreed to pay for it with other lands if title could be had to them, if not with a stipulated sum ; upon which H. conveyed the land to W.’s wife ; the title to the other lands not being made, H. filed his bill against W. and wife to subject the land sold by him, to the payment of the stipulated sum, the purchase-money thereof: Held that the land was subject to the vendor’s lien.
    Whether an award upon the voluntary submission to arbitration by the parties, made by the arbitrators without notice to the parties, is void — Quaere.
    
    Where a bill in chancery sets up an award of arbitrators, and traces the claim of the complainant through it, the award will be held prima facie good, on pro confesso, even though the bill does not aver that the award was made upon notice.
    Where the demurrer to a bill is overruled and the defendant allowed ninety days in which to answer ; and'the complainant die before the next term of the court, and the bill is’revived at that term in favor of the administrator of the complainant; and on the same day of the revival,'the defendant having failed to answer, the bill is taken for confessed against him, and a decree entered accordingly, it will be error; the defendant should have been allowed some day for the purpose of answering the bill of revivor.
    In error, from the district chancery court, held at Holly Springs; Hon. Henry Dickinson, vice-chancellor.
    . .On. the 25th of April, 1844, Wilson T. Caruthers filed his bill in the vice-cháncery court, in which he alleged that Arthur M. M. Upshaw and himself entered into a written agreement on the 18th of December, 1839, in these words, viz. “ Whereas Wilson T. Caruthers, of Holly Springs, Miss., has this day executed to Ann Hamilton Upshaw and her heirs, his deed for two sections of land, viz.: Sections ten and fifteen, township four, range one, west, Chickasaw cession, N. Miss.; in consideration of my having given to said Caruthers heretofore an order on Colbert Moore to convey to him my undivided one half interest in five and a half sections land in Chickasaw county, North Miss., being the Tomshek’s settlement of land; and whereas said Caruthers and myself entertain a doubt about the value of said undivided interest of five and a half sections land, and believe there will be a balance due said Caruthers upon the exchange: Now therefore, it is hereby agreed mutually by the parties, that Felix Lewis and Colbert Moore shall settle upon- the difference due said Caruthers upon said exchange of land, and that the amount so settled upon by them shall be settled and paid out of a contingent interest that said Upshaw has in sections of land, viz. — Sections one and twelve T. 4, R. 9 W.; southern division of Sec. 4, T. 1, R. 4 W.; Sec. three, T. 10, R.2¥; Sec. twenty-nine, T. 9, R. 9 E.; all of which latter lands are in the hands of F. Lewis and Daniel Saffaraus to get titles perfected, &c. And in case said titles all fail to be perfected, then the amount above settled upon and by this arrangement to be paid to said Caruthers by said Lewis out of the proceeds of said land is to be yet due and to be paid to said Caruthers by said Upshaw.”
    This agreement was signed by Upshaw and Caruthers. The complainant filed also a copy of the deed from himself to Mrs. Upshaw, the wife of Arthur M. M. Upshaw; and averred further, that Felix Lewis and Colbert Moore had indorsed on the back-of this agreement the following award, viz.
    “ We, Felix Lewis and Colbert Moore, having met at Holly Springs, Miss., this the 4th day of January, 1840, for the purpose of settling the difference between Col. A. M. M. Upshaw’s undivided interest in the Tomshek’s land and W. T. .Caruther’s two sections in Marshall county, viz. Sections ten and fifteen, T. 4, R. 1 West, do hereby agree in accordance with our appointment as valuers or appraisers of the relative value of the respective tracts of land of said Upshur and Caruthurs; that there is a difference of three thousand dollars in favor of said Caruthers, which sum of three thousand dollars we hereby award to said Caruthers from said Upshaw.
    Felix Lewis,
    Colbert Moore.”
    The bill further averred, that the title to all the lands specified in the articles as in the hands of Lewis and Saffaraus failed, and that no part of the three thousand dollars had been paid; that the title to the land sold by him was still in Mrs. Upshaw, to whom it was conveyed at the instance of her husband, for the consideration expressed in the articles of agreement, and no other; that Mr. Upshaw and his wife were nonresidents, and that unless the land thus conveyed to Mrs. Upshaw was subjected to the payment of this $>3000, the debt would be lost. The bill prayed accordingly.
    The defendants demurred to the bill on the following grounds: 1. That the bill was filed upon an indebtedness growing out of an award, and it did not show or state that the defendants, or either of them had any notice to attend and be heard at the arbitration. 2. That there was no averment that the three thousand dollars had ever been demanded. 3. That the execution of the deed to Mrs. Upshaw and the taking of the separate obligation of Mr. Upshaw to pay any balance due on the lands conveyed, was a discharge of the equitable lien on the land. 4. That Mrs. Upshaw was not charged with notice of the agreement between Caruthers and her husband, or of the unpaid purchase-money, and therefore her title to the land would be free from the .incumbrance. 5. The complainant conveyed to Mrs. Upshaw and took Mr. Upshaw’s bond to pay the debt, which released the vendor’s lien.
    . At the January term, 1845, the demurrer was overruled, and the defendants allowed ninety days in which to answer.
    At the July term, 1S45, the death of the complainant was suggested and leave given to revive in the name of Seaborn Hargrove, administrator of complainant. At the same term, on the 12th day of July, Hargrove filed his bill of revivor, and on the same day, the defendant failing to answer within the time allowed, the bill was taken for confessed and a decree signed two days after, ordering a sale of the land by a commissioner of the court to pay the debt due to the complainant.
    The defendants sued out this writ of error.
    
      Totten and Bradford, for appellants.
    The main point in controversy is, whether, upon the state of facts presented by the bill, the complainant was still entitled to, or had waived, his vendor’s lien on the land which he conveyed to Mrs. Upshaw.
    The doctrine in regard to the circumstances which will be held to have waived the lien of a vendor of land for his unpaid purchase-money, seems now to be firmly settled, in America, at least; and the present rule we apprehend to be, that the lien is waived whenever the vendor accepts, for the purchase-money due him, the responsibility of a third person, or other independent security, or does any other act which, even by implication, evinces his intention not to look to the land itself as a security! 4 Kent’s Comm. 153 ; Fish v. Howland, 1 Paige Ch. R. 20; Eskridge v. M’Clure et al. 2 Yerger, 84; Phillips v. Saunderson et al. 1 S. & M. Ch. Rep. 562.
    Let us apply that rule to the case disclosed in this record. Caruthers conveys land, in fee, to Mrs. Upshaw, and takes the obligation of her husband for the balance of the purchase-money, agreeing with him, also, in regard to the mode in which that balance shall be ascertained. He goes even further than this, and stipulates that such balance shall, when ascertained, be paid — not out of the land conveyed to Mrs. Upshaw, nor even by Upshaw himself in the first instance, but out of the interest of Upshaw in other lands, the titles to which were not then perfected. It was only in the event that those titles should not be perfected, that he was to have a personal claim upon Upshaw for the money.
    Here, then, we have the case of a vendor who has taken no note, bond, or other obligation from his vendee for the payment of the purchase-money due him, but who, by an independent agreement with a third person, has taken, as a security for that money, a kind of equitable mortgage upon a contingent interest in other lands, and, moreover, has bound himself, in express terms, to look to that third person for payment in case of the failure of that contingent interest; thus showing, by necessary implication, that his intention, at the date of the agreement, was to look for payment, first, to Upshaw’s contingent'interest in the other lands, and, if that fund failed, then to1 Upshaw himself, and not, in any event, to the land conveyed to Mrs. Upshaw.
    If any further evidence were wanting to show that the vendor in this instance intended to part with his lien, it would be found in the fact that, under a contract with Upshaw alone, he conveyed the land in question to a third person, in fee.
    Under this view of the case, we believe the decree of the vice-chancellor must be reversed; but as other grounds were taken in the demurrer, we crave permission briefly to advert to them.
    1st. It is not alleged in the bill that Upshaw was ever notified that the arbitrators were about to make their award, so that he could be heard before them. Their award, therefore, must be regarded as a nullity. Peters v. Newkirk, 6 Cow. 103; Kyd on Awards.
    2d. There is no allegation in the bill, that payment of the sum. awarded has ever been demanded of Upshaw. The decree directs the payment of the amount awarded, with interest from the date of the award. To the extent of the interest, at least, the decree is clearly wrong. 2 Stark, on Ev. 7th Am. ed. 1st part, 117; and Kyd.
    3d. It is not alleged in the bill that Mrs. Upshaw was privy to the agreement between Caruthers and her husband, or that she ever assented to its terms. We insist, therefore, that her interest cannot be affected by the provisions of that agreement.
    Further, we contend that, even admitting the existence of a vendor’s lien in this case, the complainant has an unembarrassed remedy at law against Upshaw, whose non-residence furnishes no ground for an application to a court of equity, without an allegation of his insolvency or of the exhaustion of his personal property ; and we believe we may safely affirm, that the decree for the sale of Mrs. Upshaw’s property, under this bill, is without a precedent in its support.
    Again. What evidence had the vice-chancellor that Hargrove was the administrator of Caruthers? No copy of his letters is filed with his bill of revivor. We'have had no opportunity, either to answer the original bill or to contest the claim of Hargrove to the character which he has assumed. The suit having abated by the death of Caruthersj we could not file our answer. And if any one who chooses to do so, can come into court of chancery, and, by his unsupported claim to be an administrator, instantly stifle all investigation into his claim, and prevent all further litigation in an abated suit, without notice to those who are to be affected by his proceedings, he must do it by virtue of some arbitrary rule, unknown to us, which would be far “ more honored in the breach than in the observance.” Story on Eq. PI. 301, and n. 4.
   Mr. Justice Clayton

delivered the opinion of the court.

The main question in this cause, is whether the vendor, under the circumstances, retained any lien upon the land which he conveyed, for the purchase-money. The circumstances relied on to defeat the lien, are that the land was sold to Arthur M. Upshaw, and his written agreement taken for the adjustment of the price, but the land was conveyed to Ann Hamilton Upshaw, the wife of the appellant. The agreement as to the payment was, that other lands should be conveyed by A. M. Upshaw, in the Chickasaw cession, the titles to which were not then complete; but if the titles to the lands designated should not be perfected, then the sum to be paid in money in lieu thereof should be ascertained by the award of Felix Lewis and Colbert Moore. The titles were not perfected, and the sum of three thousand dollars was awarded as the price to be paid.

The doctrine is now well settled, that a vendor of land, who takes no separate or other security for the purchase-money, retains a lien upon the land for its payment; and none but bona fide purchasers, without notice can set up an implied waiver of this equitable mortgage. Stafford v. Van Renssalaer, 9 Cow. 318. To constitute a purchaser of that character, the party must have advanced a new consideration, or have relinquished some security for a preexisting debt. Dickinson v. Tillinghast, 4 Paige, 215; Gouverneur v. Titus, 6 Paige, 347; Barnett v. Dunlop, MS. Op. this court. We cannot think that Mrs. Upshaw occupies this attitude. She is a mere volunteer, no consideration appears to /have moved from her either to her husband or to Caruthers, for this conveyance. She derived her title directly from Caruthers; there was no intermediate conveyance, and she could not but know, that she had not paid for the lands. She does not come within the rule of exemption, and the lien must therefore be recognized as in full force.

The next objection is, that the valuation of the lands by Moore and Lewis does not appear to have been made after notice to the parties. The authorities are not uniform as to this rule of notice. A distinction is made between those cases in which the submission to arbitration is the voluntary act of the parties, and those in which it is under rule of court. In the former, proof of notice seems not to be necessary, all that is required is proof of the execution of the award according to the submission. Miller v. Kennedy, 3 Rand. 2. This was a case at law, and so was the case in 1 Saund. R. 327, referred to in its support. In' the latter case, although the defence was excluded at law, the party filed his bill in the exchequer and obtained relief, upo i the ground of corruption and partiality in the arbitrators. The case of Peters v. Newkirk, 6 Cowen, was a case of voluntary submission. The court paid no attention to the distinction above adverted to, but said the award without notice was a nullity. Only one case was referred to in support of the opinion, (4 Dallas, 222,) which was an award under a rule of court. By statute in Pennsylvania too, the rule is different from the common law rule in this, that an award under rule of court may be set aside for error of law or of fact, when made manifest. Kyd on Awards, 380, n. It is not necessary, now, to decide between these conflicting rules. The award set out in the bill is prima facie good. The presumption is in its favor. If from partiality, corruption, or other cause, it is bad, the circumstances which establish it must be made to appear.

The last objection is, that the decree was pronounced prematurely. At the January term, 1845, a demurrer to the bill was overruled, and the defendants allowed ninety days to answer. Before the succeeding court the complainant died, but whether before the expiration of the ninety days, does not appear. At the July, term, 1845, the death of the complainant was suggested, and a bill of revivor -filed by the administrator. On the same day, this order was entered: “Tlfe defendant, having failed to answer within the time allowed at the last term, it is ordered that the bill be taken for confessed.” This was erroneous. Notice of the application to revive is necessary. 2 Paige, 477; 2 Mad. Chan. Pr. 533. The defendant must have some time to put upon the record what is necessary to show, if such be the fact, that the person reviving is not entitled to do so. When a revivor becomes necessary by the death of a defendant, who has not answered, the plaintiff must have an answer to both the original bill and the bill of revivor. 11 Ves. 312. Upon bill of revivor, according to the English course of practice, the party is entitled to eight days to answer it. Mit. Pl. 118; and he was in this instance certainly entitled to some day for the purpose.

For this error’ the decree is reversed, ■ and the cause remanded.  