
    *Redford v. Gibson.
    April, 1841,
    Richmond.
    (Absent Tucker, P., and Brooke, J.)
    Vendor’s Lien- — Case at Bar. — G. by S. his attorney, sells and conveys land to W.; the conveyance expresses, on its face, tbat purchase money is all paid; but, in fact, 800dollars thereof haying- been paid on day of conveyance, S. on same day deposits the same in W.’s hands, to indemnity him against a suretyship in certain bonds taken upon ne exeats against S. as attorney in fact of G. which ne exeats are afterwards discharged; and 400 dollars are, by the contract, retained in W. ’s hands to meet the possibility of dower ot G.’s wife, and she is now dead; W. sells and conveys the land to R — Held, G. has no lien on the land for the 800 dollars, but has a lien for the 400 dollars with interest.
    Robert Gibson, having- been indicted for murder in Virginia and fled from justice, and sojourning in Georgia, by letter of attorney dated the 1st April 1815, constituted Christopher Strong his attorney in fact "to make sale of a parcel of 157 acres of land, called High Hill, lying in the county of Prince Edward. Strong sold the land to Blake "Woodson, and an agreement was made between the parties in these words:
    “I have this day purchased of Christopher Strong, attorney in fact for Robert Gibson, a tract of land 157 acres, called High Hill, lying in Prince Edward county, adjoining Abner Nash’s land on Appomattox river, for which I am to give him 2200 dollars ; 800 dollars of which are paid down ; 1000 dollars are retained in my hands until the final result of a suit between Robert Gibson and William Randolph is known; and 400 dollars I have retained on account of Mrs. Gibson’s dower interest — if it can be purchased for less than 400 dollars, I am accountable to Robert Gibson or his representatives for the difference between that purchase and the 400 dollars; if I purchase it for more than that sum, *the sum over is to be on my own account; and if Mrs. Gibson should not become entitled to her dower interest, then I am bound to Robert Gibson for the whole sum of 400 dollars. Witness my hand and seal this 27th May 1815.” Which paper was signed and sealed by “Blake Woodson.”
    Though the agreement expressed, that 800 dollars of the purchase money “was paid down,” yet, in fact, either no money passed from Woodson to Strong, or, if any passed, it was immediately returned by Strong to Woodson, as appeared by the following receipt dated the same day:
    ! !27th May 1815. Received of Christopher Strong, attorney in fact for Robert Gibson, 800 dollars, which sum is deposited in my hands in consequence of my having become his surety in two bonds taken under two writs of ne exeat, that issued from the county court of Cumberland, one at the instance of Willis Vaughan, and the other at the instance of Richard Eigon, by two justices of the peace of said county, each against Christopher Strong agent or attorney in fact for Robert Gibson &c. which sum is to remain in my hands to abide the decision of the law in those cases. (Signed) Blake Woodson.”
    Of these two papers counterparts were kept by Woodson; and a deed of bargain and sale of the 157 acres of land was executed by Strong, the attorney in fact of Gibson, to Woodson, dated the same 27th May 1815, and expressing that the whole consideration of 2200 dollars had been paid; which deed was also duly. recorded.
    Gibson returned to Virginia in 1817, and was tried for the murder of which he had been indicted, and acquitted. He then exhibited a bill in chancery against Woodson and Strong, wherein he alleged, that the sale of this parcel of land by,, Strong to Woodson was a fraudulent transaction, and as proof that it was so, he alleged (among other things) that Strong had been ^"offered a larger price for the property by other persons, and he prayed that the whole transaction might be set aside, on repayment of the purchase money. And in July 1818, he filed an amended bill, alleging, that no part of the purchase money had been paid by Woodson, and praying that the transaction might be set aside, without any repayment of purchase money.
    It is no further necessary to notice the proceedings in that suit, thanj(to state, that, after the amended bill was filed, namely, on the 28th September 1818, Gibson took the deposition of the appellant Edward Redford; in which Redford deposed, that, in 1814, he offered a Mr. Riddle, who was then the agent of Gibson, 2300 dollars for this very 157 acres of land called High Hill, provided Riddle would leave in his hands 1000 dollars until the decision of a suit then pending in the court of appeals between Gibson and William Randolph ; and that Riddle and Mrs. Gibson should execute a deed to the deponent, with her relinquishment of dower: that he tendered a deed to Riddle and Mrs. Gibson, which she refused to execute, unless the deponent would pay her the money arising from the sale of the land, and to this Riddle refused to accede.
    Pending that suit, Woodson sold and conveyed to the same Redford, the whole 157 acres of land, for 5000 dollars, by deed dated in June 1820. And afterwards, in 1823, the bill in that suit was dismissed, but without prejudice to any suit which Gibson might bring to recover the purchase money which Woodson had contracted to pay for the land.
    Immediately on Gibson’s failure in that suit, he exhibited the present bill against Woodson, Strong and Redford, in the superior court of chancerj7 of Richmond, whence it was removed first to that of Williamsburg, then to that of Winchester, and thence to the circuit superior court of Frederick. In this bill, he stated the material facts of the transaction prior to Redford’s purchase, *and then Redford’s purchase of Woodson for 5000 dollars; that Woodson had in fact paid nothing' at all to Strong ; that Woodson was now insolvent: and he prayed, that the conveyances might be set aside for fraud, or if not, that the land might be subjected to the payment of the purchase money. And in an amended bill, filed in July 1825, he charged that Redford purchased the land with full knowledge of all the facts, and was in truth induced to make the purchase for the purpose of saving a debt due from Woodson to him, which had otherwise been desperate.
    Redford, in his answer to the original bill, stated his purchase of Woodson, and affirmed, that he had paid the whole of the purchase money to him or for him; that nearly five years had elapsed from the time of Strong’s sale to Woodson till Woodson’s sale to him, during which time Woodson was quite solvent; so that Gibson-might; at any period of that time, have made the small balance due for the land, if Mrs. Gibson had relinquished her right of dower, which, however, she had not done and refused to do; Redford, believing from the character of Gibson’s suit against Woodson and Strong, that he rested satisfied with Woodson’s solvency, was induced to become the purchaser of the land, and he now held it subject to Mrs. Gibson’s right of dower, in case she should survive her husband. And he added, that he believed, that all the purchase money, except the sum retained on account of Mrs. Gibson’s dower, was paid to Gibson’s agent Strong, and to William Randolph, who had a lien on the land by an elegit. And in answer to the amended bill, he stated, that he purchased of Woodson in April 1819, and received a conveyance in June 1820; and declared, that- he paid the whole purchase money to and for Woodson before the conveyance was made. He denied, that he bought to save a debt, or indemnify himself as a surety for *Woodson, and said, indeed, that he did not remember that he was a surety for Woodson at the time. He denied, that he knew, at the time he received the deed of conveyance from Woodson, that the purchase money contracted to be paid by Woodson had not been paid by him, and he referred to his answer to the original bill on that point. He added, that when he bought the land of Woodson, he Woodson was solvent; and the long delay of Gibson to assert any lien on the land, and the character of his former suit in which no attempt was made to subject the land to sale for the purchase money, was inconsistent with the present claim, or at least made it inequitable.
    Woodson also answered, and, after detailing the transaction between him and Strong, touching his purchase of this parcel of land, he said, that he had paid William Randolph from 1000 to 1200 dollars on account of his claim; that the wife’s dower was still a subsisting charge; that, moreover, a suit was pending in the county court of Prince Edward, in favor of White & Co. against Thomas Gibson and Robert Gibson (Thomas having been the original owner of the land), the object of which was to charge this very land with a debt due from Thomas Gibson to White & Co. on the ground, that the conveyance by Thomas to Robert Gibson was made in fraud of Thomas’s creditors; which suit had been instituted before the sale made by Strong to Woodson, though he did not recollect it, and it was unknown to Redford when he made his purchase: neither had Redford any knowledge of Gibson’s present claim when he bought, and was not induced to purchase in order to save himself, the debt due to him being inconsiderable, and much the greater part of the purchase money having been paid in cash, or to Woodson’s orders.
    As to the defendant Strong, the bill was taken for confessed.
    , *It appeared, that the claim of Randolph was paid off on the 2nd June 1826, and then amounted, principal and interest, to 1260 dollars. And that the two writs of ne exeat against Strong as Gibson’s agent, in which Woodson became surety for Strong, and received from him the 800 dollars to hold as indemnity, were discharged in June 1818.
    The record of the suit of White & Co. against Thomas and Robert Gibson, was also exhibited: it asserted a claim upon this land and other property, as having been fraudulently conveyed by Thomas to Robert, to defeat the creditors of Thomas; and it was still in full prosecution.
    There were also sundry exhibits and depositions on both sides, incoherent and inconclusive, upon the questions, whether Woodson, at the time of his sale to Redford, was solvent or not? and whether Redford had notice, at that time, of the non-payment of the purchase money by Woodson to Gibson?
    The cause was heard before the court of chancery of Williamsburg in January 1827; and the court declared, that Redford, in his answer to this bill, having said he was induced to make a purchase of the High Hill tract of land from the character of the former suit, and he having given his deposition in the former suit, wherein an amended bill had been filed charging that the purchase money had not been paid, a few months before he gave the deposition, and two years before he obtained his deed for the land; and as his answers were imperfect in denying notice, and in not alleging payment before notice; from these facts, and all the evidence in the cause, the court was of opinion, that Redford had notice of the purchase money being still due to Gibson, before he paid Woodson, if indeed he had ever paid him; and that, therefore, the land was liable in the hands of Redford, for the purchase money which was *due from Woodson. Therefore, the court ordered accounts to ascertain what payments had been made, or incumbrances removed, by Woodson, and what was due from him.
    After this decree was made. Redford filed an amended answer, wherein he positively and explicitly denied notice of the fact that the purchase money due from W’ood-son to Gibson was unpaid at the date of the conveyance from Woodson to him, alleging, that the whole purchase money he had contracted to pay Woodson, was paid before Woodson made the conveyance. ■ He affirmed, that the cash payment of 800 dollars was in fact made by Woodson to Strong the attorney of Gibson. And he referred to the suit of White & Co. against Thomas and Robert Gibson, the issue of which he could not anticipate, though he apprehended that the decree in it might affect the land.
    To this answer Gibson put in a general replication. And the depositions of the defendant Woodson and of Robert G. Scott were filed, proving that Woodson had taken a receipt from Strong for the payment of that money to him, which had been lost or mislaid.
    In October 1829, the court of Prince Edward made a decree in the case of White & Co. against Thomas and Robert Gibson, wherein the court held, that the conveyance from Thomas to Robert was fraudulent as against Thomas’s creditors, and ordered that High Hill, and sundry other property, should be sold to pay the debt due to White & Co. And a copy of that decree was filed in this cause.
    Gibson filed a letter from one Dorsey to him, dated the 13th June 1828, giving him an account of the death of Mrs. Gibson.
    And the cause coming on for hearing again, in the superior court of chancery of Winchester, to which it had been removed, in December 1830, the court was of opinion, *that though Redford, in his last amended answer, had most positively denied that he had notice of the non-payment by Woodson to Gibson of the purchase money of High Hill, yet his denial was outweighed by the strong and conclusive evidence in the cause referred to in the decretal order of January 1827, so that notwithstanding his denial of notice, the aspect of the cause had not been changed since the making of that order; therefore, the court again ordered Woodson and Redford to render an account of any lien or claim on High Hill, which had been paid by them or either of them, and for which Gibson was liable.
    The commissioner reported, that the only money which had been paid, was 1260 dollars paid to William Randolph on the 2nd June 1826 — that the 800 dollars for which Strong gave his receipt to Woodson as money paid to him, was the same money for which Woodson on the 27th May 1815 gave his receipt to Strong, as so much deposited with him by way of indemnity against Woodson’s suretyship for Strong in his bonds taken on the writs of ne exeat, which were discharged in June 1818, and so this money had not in fact been paid by Woodson to Strong — and that Mrs. Gibson was now dead. Therefore, the commissioner stated the account of principal and interest, allowing credit for the 1260 dollars paid to Randolph on the 2nd June 1826, and made the balance of the debt due to Gibson, principal and interest, on the 2nd December 1834, to be 3498 dollars 83 cents.
    The court, at June term 1835, decreed that Woodson should pay Gibson, the sum of 3498 dollars 83 cents, with interest on 2200 dollars from the 2nd December 1834 till paid; and that unless Woodson or Redford should pay that sum, then the land called High Hill should be sold to pay the amount.
    Erom which decree Redford, by petition to this court, asked an appeal; which was allowed.
    *Taylor and Leigh for appellant, contended, that he had no notice whatsoever of the non-payment by Wood-son of the 800 dollars, which, by the contract between Woodson and Strong, was “to be paid down.” It was true, that Gibson, in his former suit against Woodson and Strong, had by his original bill sought to set aside the transaction as fraudulent, and by an amended bill filed in July 1818, charge that the purchase money remained yet unpaid ; and it was true, that Redford was afterwards, in September 1818, examined as a witness in that cause touching a wholly distinct point; it was true too, that in Redford’s answer to the present bill, he referred to the former suit, and spoke of it as one in which Gibson did not seek to charge the land with the purchase money. The answer shewed, indeed, that he was apprised of the object of the original bill, but that he was not apprised of the object of the amended bill; for it accurately described the object of the original, and omitted all mention of that of the amended bill; and how could he be charged with notice of the amended bill, merely because he gave a deposition in the cause, on a distinct point, after the amended bill filed? To charge a witness examined in relation to a single fact, and that a fact hardly pertinent to the cause, with a knowledge of all the pleadings as they then were, would be straining presumption beyond reason and law. Redford’s answers in this cause, had not been fairly considered and interpreted : they did all, with perfect consistency, and without equivocation or evasion, deny notice of the non-payment of the purchase money by Woodson to Gibson, except that part thereof which was retained to meet Mrs. Gibson’s possibility of dower. They admitted that, according to the adjudications in the English court of chancery, if the purchase money had not been paid, and no security had been taken for it, though the conveyance expressed that it had been paid, the land in the hands of a subsequent purchaser, *with notice of the non-payment, might be charged with the amount due: it was an equitable lien which the court would enforce. It might be otherwise in Virginia, where all deeds were recorded, and a purchaser looked to the record to see what in-cumbrances there were upon the land. But, however that might be, they said, Strong was Gibson’s attorney in fact, and Strong’s acts were Gibson’s. Now, Strong gave Woodson a receipt for the 800 dollars as so much paid to him; and though that money was returned to Woodson as a pledge to indemnify him as surety in the ne. exeat bonds, still the receipt given to Woodson shewed, that the money was in fact paid. The land was relieved from the lien, and Woodson was personally liable for the money upon the discharge of the writs of ne exeat. In this respect, the case resembled that of White v. Wakefield, 7 Sim. 401, 10 Cond. Eng. Ch. Rep. 116. Gibson, haying got his money for his land, gave it back to the vendee upon a wholly new contract. And if Redford, purchasing from Woodson, had been exactly informed of the facts, he would have been entitled to hold the land exempt from any lien for the 800 dollars. The court below erred also in holding that the 400 dollars retained for Mrs. Gibson’s dower was to be paid: Winter v. Ld. Anson, 1 Sim. & Stu. 434, 1 Cond. Eng. Ch. Rep. 221. • Besides, there was no evidence that she was dead, but a letter from one Dorsey stating that she was; but the counsel said they had heard that she was living long subsequent to the date of that letter, and, at all events, the letter was no evidence of her death. And they submitted, that the court erred in making no provision for the satisfaction of the decree of White & Co. against this same -land.
    Cook and Patton, for the appellee,
    entered into a critical examination of Redford’s answers, for the purpose of shewing that he did not deny notice of the non-payment of the purchase money by Woodson to Gibson, or, *if he denied notice of the fact, he did not deny notice that Gibson claimed that it had not been paid. They coupled the circumstance of Redford having been examined as a witness in Gibson’s suit against Woodson and Strong, after the amended bill was filed charging that the money had not been paid, with Redford’s answer in this cause, in which he speaks of the nature of the former suit; and thence argued, that Redford was apprised, at the time of his purchase from Woodson, of the non-payment of the purchase money due from Woodson to Gibson. As to the rest, they said it was clearly settled, that the vendor of land, taking no security for the purchase money, had a lien on the land for the purchase money unpaid, which followed it in the hands of all volunteers and purchasers with notice: that the fact of the vendor having made a deed expressing on its face, that the whole purchase money was paid, or having made a deed and endorsed a receipt for the purchase money thereon, if in truth the money remained unpaid, did not relieve the land from the lien for it. Saunders v. Leslie, 2 Ball & Beat. 509. If a receipt for the money endorsed on the deed, could not relieve the land from the lien, how could a receipt on another piece of paper have that effect? As to the 400 dollars which was retained for Mrs. Gibson’s dower, Gibson’s lien extended to that: the vice chancellor’s decree in Winter v. Ld. Anson, was reversed on appeal to the lord chancellor, 3 Russ. 488, 3 Cond. Eng. Ch. Rep. 495. And this money was now due, for Mrs. Gibson was dead: a letter was filed, giving an account of her death in 1828; the commissioner reported that she was dead, and no exception was taken to the report on this point. Then, as to the decree of White & Co. against Thomas and Robert Gibson, the record of the suit, so far as it had then proceeded, was filed as an exhibit with Woodson’s answer; and after the interlocutory order in this cause, the.decree in that cause was filed as an exhibit before the commissioner. *The decree was detached from the record, and it did not appear to be a decree in the same cause. But on examination of the decree, it would be found that it did not certainly direct the sale of this land.
    
      
      Vendor"s Lien — Reservation of — Statute.—The language of Judge Auden, In Redford v. Gibson, 12 Leigh 349, that “Prudence dictates the propriety, in all cases, of retaining an express lien where the legal title is parted with,” is quoted in McClure v. Cook, 39 W. Va. 584, 20 S. E. Rep. 614; Lough v. Michael, 37 W. Va. 680, 17 S. E. Rep. 182. But the statutes now provide that if any person convey any real estate and the purchase money or any part thereof, remain unpaid at the time of the conveyance, he shall not thereby have a lien for such unpaid purchase money, unless such lien is expressly reserved on the face of the conveyance. W. Va. Code, ch. 75, sec. 1; Va. Code 1887, ch. 110, sec. 2174.
      Implied Equitable Lien. — In Poe v. Paxton, 26 W. Va. 611, the court said: “The-principle is. that this lien exists in equity presumptively, when the purchase money, or any part of it, remains unpaid: and it is for the vendee to show such circumstances as repel the presumption or rebut the equity. 1 Lead. Cas. Eq. (top p.) 272. ‘Prima facie the purchase money is a lien, and it lies on the vendee to show the contrary; and the death of the vendee does not alter or defeat the lien.’ Garson v. Green, 1 Johns. Ch’y 208; Tompkins v. Mitchell, 2 Rand. 428; Redford v. Gibson, 12 Leigh 332. ”
    
   ALLEN, J.

This is a bill filed to subject land sold and conveyed by Gibson to Woodson and by the latter to Redford, to the payment of the purchase monej’ alleged to be due by Woodson to Gibson. That the lien of the vendor exists against the vendee and volunteers claiming under him, and against third persons who had notice that the purchase money was not paid, is laid down by all the elementary writers, and, I think, is now too clearly settled to be drawn in question. The lien, however, is the creature of a court of equity, formed upon a supposed intention of the parties; and wherever, from the circumstances of the case, it appears that the parties did not contemplate such a lien, it will not be established. There is strong reason in our country, where all incumbrances are required to be recorded, not to extend this secret equitable lien beyond the principles already established. The records are universally looked to with us, as disclosing all charges upon the property. Prudence dictates the propriety, in all cases, of retaining an express lien where the legal title is parted with. If the vendor, instead of adopting this course, chooses to rely upon his secret equitable lien, he should be cautious not to do any thing leading to the inference that no such lien was intended to be retained. If, from his acts, third persons may fairly infer that the personal credit of the vendee was looked to, it would be a fraud upon them to permit the lien to be set up against them.

Gibson, then residing in Georgia, constituted Strong his attorney in fact, with. full power to sell and convey the land in question, and receive the purchase money. On the 27th May 1815, Strong sold to Woodson and made *him a deed. Gibson returned to Virginia in 1817, and in 1818 instituted a suit against his attorney Strong and Woodson, in which he sought to set aside the sale on the ground of fraud between his attorney and Wood-son : he failed in his attempt to shew the fraud, and his bill was dismissed in 1823. Strong may be therefore dismissed-from our view.

What a man does by his authorized attorney, he does himself, and the case is to be contemplated, so far as third persons are concerned, as a transaction between Gibson himself and Woodson. Gibson, then, in 1815, sold and conveyed the land to Wood-son, and by his deed acknowledged the payment of the money. The admission in the deed, and a receipt for the purchase money endorsed on it, are not sufficient to repel the presumption of law that a lien was retained for the purchase money. The case of Saunders v. Leslie, cited at the bar, is a direct authority as to this point. On the day of the sale and conveyance, Woodson executed an instrument under seal, which sets out the terms of the contract. By this it appears, he was to give 2200 dollars for the land; of which 800 dollars is said to be paid down; 1000 dollars he retained to meet the claim of Randolph, then in suit, and 400 dollars on account of Mrs. Gibson’s dower interest. Of this agreement Wood-son retained a counterpart, which he filed with his answer. On the same day, Wood-son gave a receipt to Strong, acknowledging the receipt from Strong as attorney in fact of Gibson, of the sum of 800 dollars, which sum was deposited in his hands in consequence of his having become the surety of Strong in two bonds taken under two writs of ne exeat sued out against Strong by the creditors of Gibson, and the money was to remain in his hands to abide the decision of those cases. This is all the evidence we have touching the transactions of that day.

*It is contended by Gibson’s counsel, that in truth no money was actually paid, and that Woodson has acquired the land without giving any thing at the time. The money retained to meet the Randolph claim, was paid to Randolph afterwards. And the controversy now relates to the 800 dollars, and the 400 dollars. The counsel may be correct in the inference that the sum of 800 dollars was not actually paid; but it is but an inference, from the evidence, and that against the terms of the agreement and receipt. It would, perhaps, be as reasonable to infer, that the creditors of Gibson, an absentee, learning that his attorney in fact, also a resident of a distant state, had sold his land and received part payment, sued out the writs, and compelled him to give the security. Whatever may have been the fact, in what attitude do these transactions place Gibson towards third persons, viewing them as his own acts? (and in that aspect they must be contemplated). He sells his land, and makes a conveyance, in which the receipt of the purchase money is acknowledged : he takes on the same day an agreement from his vendee reciting the terms of the contract, in which the payment of this 800 dollars is admitted: and by another receipt, bearing the same date, it appears this money was deposited to remain with Woodson until the decision of certain suits. Suppose the money had been actually paid to Gibson, and in an hour afterwards, he had been held to bail in suits which he intended to controvert, and had deposited this money with his bail. Upon the payment of the money the lien was gone. Could the deposit with the bail, who happened to be the vendee, revive it? The cases in which it has been held, that the receipt for the purchase money is not sufficient to repel the presumption of law, are cases where there was no change in the original contract: the vendor had taken the bond or agreement of the vendee for the payment of the purchase money at the time stipulated. But in the case like the present, how *could the vendor have sued for this 800 dollars at law? Not on the original contract, for that recited its payment. He must have recovered in an action for money had and received, and upon proving that the writs of ne exeat had been dismissed, as it appears they were, and exhibiting the receipt, his case would have been made out. The consideration, then, would have been the money deposited, and not the land sold. For this deposit he necessarily looked to the personal credit of Woodson; and if so, his lien was gone. For it never exists when the circumstances shew an intention not to rely on it. And as it regards a third person, a fair purchaser, would it not be grossly unjust to charge the property in his hands? He sees in the hands of his immediate vendor, the deed, the counterpart of the agreement, and the receipt. Can he suppose, with these papers before him, that the land is still looked to for the security of the purchase money, in the face of the agreement acknowledging payment, and of a receipt shewing a deposit of the money with the vendee to meet a possible and distinct liability? No man, it seems to me, could have supposed he was incurring danger in purchasing under such circumstances. The case, it strikes me, is stronger against the lien than the case of White v. Wakefield. In that case, the purchase was made by one of several trustees, the money to be derived from a trust fund. The business was transacted by one of the trustees, and the vendor acknowledged the receipt of the whole of the purchase money in the deed, and by a receipt endorsed on it; but a portion of the money was retained by the trustee. There was an account between the vendor and acting trustee, shewing how the balance of the purchase money •was paid, and reciting that a sum was retained until the deeds were executed and legal matters completed, and that it was to bear interest. The vendor took a lease of the property, and so continued in possession. The case was decided against the lien, ’’''upon the ground, however, that the vendor had dealt in this way with one of the trustees without the knowledge or concurrence of the others. They had a right to suppose the trust fund had been properly applied, and it would have been a fraud on them to permit the lien under such circumstances to be set up against the estate. The case shews, that where, from the circumstances, third persons have a right to suppose personal credit is given, the lien will not be established against them, even although the vendor held possession of the estate under a contract of lease. As to the 800 dollars, therefore, I think the transactions shewed that no lien was retained or contemplated, and that whether Redford had notice of these transactions or not, is not material. Indeed, I have proceeded upon the concession, that the papers disclosing to him all that now appears to the court, were exhibited to him, and that Gibson, by putting it in the power of his vendee to exhibit them, has deprived himself of all right as against such vendee to charge the land.

The 400 dollars, retained by Woodson to indemnify himself against the claim of Mrs. Gibson for dower, I think is a lien on the land. There is nothing in the circumstances indicating any intention to waive the -lien as to this sum. ' The purchase money being an equitable lien, it devolves on the purchaser to shew circumstances indicating an intention not to insist on it. The postponement of the payment to an indefinite time, does not, it seems to me, of itself shew such intention. The authority of Winter v. Ld. Anson, relied on to shew that in such a case there was no lien, was reversed by the lord chancellor on appeal. There, Housley purchased the estate of Winter. The conveyance expressed that the whole purchase money was paid; in fact, but a portion was paid; Mousley exe-, cuted his bond for the remainder of the purchase money, payable within twelve months after the decease of Winter. The vice chancellor dismissed the bill. The case came up on an appeal ^before the lord chancellor, who said, ‘ ‘In general, where a bill, note, or bond is given for the whole or any part of the purchase money, the vendor does not lose his lien for so much of the money as remains unpaid. The circumstance, that the money is secured to be paid 3-t a future day, does not affect the lien. I do not think that the lien is affected by the fact of the period of payment being dependent on the life of the vendor. That circumstance does not appear to me to afford such clear and convincing evidence of the intention of the vendor to rely, not upon the security of the estate, but solely upon the personal credit of the vendee, as would be necessary in order to get rid of the lien. It would not be inconsistent with an express pledge, and I do not perceive why it is at variance with the lien resulting from the rules of a court of equity.” In this case, the payment depended on the contingency of the wife surviving the husband and asserting her title to dower, and the agreement between the parties shewed it was held for the purpose of meeting that liability. Of this the purchaser had full notice, and admits it in his answer. I think, under such circumstances, he took the property subject to this charge.

It is objected that there is no evidence in the record of the death of Mrs. Gibson. There was a reference to a commissioner to ascertain the outstanding incumbrances: he reported that Mrs. Gibson was dead, so that her dower claim constituted no charge on the estate; and to this report there is no exception on that account. The matter reported on was embraced in the scope of the enquiries submitted to the commissioner. The evidence upon which he proceeded, does not appear by his report: if upon the letter filed, although it is not proved so as to make it evidence, it may have been admitted; or other evidence of the fact may have been before him. If the correctness of his conclusion had been controverted by an exception, evidence upon the point might *have been filed. It would be a surprise on the party, to permit the exception to be taken in the appellate court.

I think, however, the court erred in not making some provision to secure the purchaser against the charge created by the decree in favor of White & Co. The purchaser was not entitled to a credit; for it does not appear certainly, that the land will be sold under the decree. Still there is enough in the proceedings in that case, to render it very probable that the land will eventually have to be sold to satisfy the claim. The charge is one which Gibson was bound to remove; it creates a cloud on the title, and a sale under such circumstances would necessarily be attended with a sacrifice. If the land is subjected to this charge, Redford would have a right to call upon Woodson’s estate for indemnity. Under these circumstances, Gibson is not entitled to a decree against either Wood-son or the land, until this incumbrance, which it was his duty to remove, is extinguished.

Therefore, it seems to me, the decree should -be reversed with costs, and the cause remanded for further proceedings, with instructions, that the land in the hands of the appellant Redford is liable to the payment of the 400 dollars onlj-, retained in the hands of Woodson to meet the claim of dower, with interest thereon from the time of the purchase; and that Gibson is not entitled to a decree for any part of the purchase money, until it shall be shewn that the land has been exonerated from anjr incumbrance growing out of the suit of White & Co. against him.

The other judges concurred — Decree reversed, and cause remanded &c.  