
    Ross vs. Whitson and Witherspoons.
    A vendor of land who has conveyed it by deed, has a lien in equity upon the land for the payment of the unpaid purchase money, against the vendee or purchasers from him with notice.
    The vendor does not abandon his lien, by accepting the promissory note of the vendee for the payment of the purchase money.
    The bill states that Ross the complainant, on or about the 20th December, 1826, sold to defendant Whitson, a tract of land containing ninety acres, for the consideration of four hundred and fifty dollars, for the payment of which the said Whitson executed two promissory notes, payable to the complainant, each for $225, one payable on the 1st of March, 1827, the other on the 1st of March, 1828; that suits were commenced upon these notes in December, 1828, and judgments recovered at the March term, 1829, of the county court of Wayne county, for $499 27 cents.
    The bill also states, that the complainant conveyed the said tract of land to the said Whitson, by deed with a general warranty of title; that after said conveyance was executed, defendant Whitson became unfriendly with complainant, and to prevent complainant from recovering his money, conveyed the land to John S. and William With-erspoon by deed; that at the time of this conveyance, the said John S. and William Witherspoon had full knowledge that said Whitson had purchased the land of complainant, and that the purchase money was still unpaid, The bill prays that the land may be sold to satisfy the said judgments, &c.
    The answer of Whitson admits the sale of the land as stated in the bill, the execution of the notes, and the recovery of the judgments; alleges .that complainant made a title without requiring any lien upon the land; that complainant so expressed himself; that before he sold to the Witherspoons, he offered to complainant the land in satisfaction of the debt, but he refused to take it. The answer further states, that the sale of the land to the With-erspoons was fair and bona fide, and for a valuable consideration.
    The answers of John S. and William Witherspoon, admit they purchased the land from Whitson; that for this and a small tract of one hundred and twenty-six acres adjoining, they paid the said Whitson $1200; that the sale was fair and bona fide; admit that the land was sold to Whitson by complainant, and that they knew the purchase money was unpaid, but insist that complainant knew they were about to purchase the land, and did not set up or claim any lien upon it. The defendants further insist that there was no lien; that the complainant having received the notes of defendant Whitson, and conveyed the land by deed, he thereby waived or relinquished the lien, if any ever existed. The answers deny all fraud.
    The circuit court decreed the land to be sold for the payment of thé judgments, unless the debt, interest and cost were paid on or before the 1st of March, 1833.— The decree recites the foregoing facts. The defendants prayed for an appeal in the nature of a writ of error to this court.
    
      F. B. Fogg, for complainant in error.
    J. S. Yerger, for defendant.
   Catron, Ch. J.

delivered the opinion of the court.

Ross sold Whitson his land, took hills single payable at a future day for the purchase money, and made Whit-son a deed. Afterwards, Whitson sold the land to the Witherspoons, who had full notice that the purchase money was due from Whitson to Ross. They took a deed from Whitson and paid him for the land. There is no sufficient evidence going to show that Ross abandoned his lien, which must be shown by him who attempts to resist it. 15 Ves. 336; 1 Sch. and Lef. 132: 1 John. Ch. C. 309: 1 Bro. Ch. C. 420.

This state of the case presents the naked question, whether the vendor retains a lien for the unpaid purchase money against a purchaser with notice from the vendee? Whatever doubts may formerly have rested upon this head of equitable jurisdiction, they have long since given way to an uniformity of opinion in the British and American courts, (circumstances destructive of the lien aside,) that it does clearly exist, as between the vendor and vendee, and purchasers from the vendee, with notice. Sug. on Ven. ch. 12: 15 Ves. 336: Brown vs. Gilman, 1 Mass. Rep. 214: 4 Wheat. 292, note A: Garson vs. Green, 1 John. Ch. C. 308.

The executing notes for the purchase money from Whitson to Ross did not affect the lien; they were not independent security collateral to the purchase. Blackburn vs. Greyson, 1 Bro. Ch. C. 419, S. E: 1 Cox, 90: Garson vs. Green, 1 John. Ch. C. 309. The decree will be affirmed.

Decree affirmed.  