
    Cole v. Scott.
    October Term, 1795.
    Vendor’s Lien, — A vendor of land, not Raving' conveyed the same, or taken a security for the purchase money, has a lien upon the land for satisfaction thereof.
    The only question in this cause was, whether the vendor of land sold and in possession of the vendee, but not conveyed, has a lien on it, so as to secure the payment of the purchase money. In this case, the Chancellor dismissed the plaintiff’s bill which was brought to subject the land to-the payment of the money for which it had been sold.
    Stark for the appellant.
    I consider this question as compleatly settled by the cases of Chapman v. Tanner, 1 Vern. 267. Pol-lexsen and Moore, 3 Atk. 272 — Walker and Preswick, 2 Vez. 622 — Cator and Earl of Pembroke, 1 Brow. Ch. Kep. 301 — Blackburn and Gregson, lb. 420. In Hanson and King’s heirs, *in the former Court of Appeals, and in Eidderdell’s
    heirs v. Pettis’s executor and others in the Eoederal Court, in all of which the lands were decreed to be sold for payment of the purchase money.
    
      
      Vendor’s Lien — Waiver of. — The rule is well settled that merely taking the bond, note or covenant of the vendee himself for the purchase money, is not of itself a waiver of the vendor’s lien, for it may be taken to countervail the receipt of the payment usually endorsed on the conveyance. But if the vendor takes a distinct and independent security, either of real or personal property, from the vendee, or the responsibility of a third person, it is evidence that he did not repose on the lien, but upon independent security, and the lien is discharged. The principal case is cited with approval, to support this proposition in McCandlish v. Keen, 13 Gratt. 624: Blair v. Thompson, 11 Gratt. 443: Renick v Indi rig ton, 16 W. Va. 395; Gilman v. Brown, 10 Fed. Cas. 401; Tompkins v. Mitchell, 2' Rand. 429. See foot-notes to Graves v. M’Call, 1 Call 414: King v. Hanson. 4 Call 259.
      That a Mortgagee Is a Bona Fide Purchaser, — The principal case is cited in note to Partridge v. Smith, 18 Fed. Cas., pp. 1281, 1283. See Cole v. Scott, wythe 272.
    
   ROANE, J.

The question which this record presents to the court is whether the vendor of land which he has not conveyed, has such a lien upon it, as that he may apply to a Court of Equity for a sale to supply the deficiency of the personal estate in paying the purchase money?

Upon an examination of the cases cited at the bar, the law seems to be settled, that where land is sold and no security taken, nor money paid, the vendor retains a lien, and the rule must be the same, where a part of the consideration has been paid, as in this case. The authorities appear to be uniform in establishing this doctrine, where no bond is given for payment of the money. In the case of Blackburn v. Gregson, 1 Brown’s Ch. Rep. 420, all the former adjudications upon the subject are brought into review before the court, and the circumstance of a bond being given, seems not to have been considered as important. However, I shall give no decision myself upon this point, as there is no bond in the present case. The doctrine seems also settled by the case of Hanson and King in the former Court of Appeals.

Upon the whole I am of opinion that the land is liable, and the decree consequently erroneous.

EEEMING, J.

It is clear in this case, that there is' no personal estate in the hands of the executor to pay the balance of the purchase money remaining due, and I consider the law as settled, that the vendor has a lien upon the land. I concur in opinion.

The PRESIDENT. If this were a new case, I should feel no difficulty in making it a precedent. But the doctrine, that a vendor of land not taking a security, nor making a conveyance, retains a lien upon the property, is so well settled as to be received as a maxim. Even if he hath made a conveyance, yet he ma.y pursue the land in the possession of the vendee, or of a purchaser with notice. But if he hath taken a security, or the vendee hath sold to a third person without notice, the lien is lost. In this case however, there was no conveyance made, and the land is now in possession of volunteer claimants under the vendee. The Opinion of the Court is “that the appellant not having conveyed the land, nor taken any security for the ^balance of his purchase money, hath a lien upon the lands in the hands of the appellees for satisfaction of such balance.”

Decree reversed.  