
    *Little & Telford v. Brown.
    October, 1830.
    (Absent Brooke, P., and Coalter, J.)
    Sale of Land — Lien for Purchase Money — Right to Profits — Case at Bar, — J. & D. W. purchase lands of B. and to secure the purchase money, payable In In-stalments, convey same lands to a trustee, upon trust to permit J. & D. W. to take the profits thereof to their order, use and benefit, till the time appointed for payment of the last instalment, and then in default of payment, to sell the subí ect. and apply proceeds to satisfaction of the debt: after-wards, and before the last instalment of the debt to B. falls due, J. & D. W. mortgage same lands, and all yearly rents, issues and profits thereof, and all their right and interest therein, to L. & T. to secure a debt due them: Held, that L. & T. are entitled, in preference to B. to all profits accruing prior to the time when the last instalment of debt to B. falls due. .... * „
    .... * „ Vendor’s Lien — Effect Thereon of a Mortgage for Purchase Money.— A vendor, taking a mortgage of the subject sold to secure the purchase money, can only claim under the mortgage, and according to its terms: the mortgage supersedes the implied equitable lien for the purchase money, which but for the mortgage would have attached to the subject.
    Same — Right Thereunder to Profits. — The implied equitable lien of a vendor upon the subject sold, for the purchase money, does not give the vendor asserting the lien, any claim for the profits of the subject.
    This was an appeal from a decree of the superiour court of chancery of Staunton, in two suits, one brought by Little & Telford against John, David, and William Willson, and the other brought by William Brown against Little & Telford and the three Willsons; both causes having resulted in a contest between the appellants Little & Telford and the appellee Brown (both parties being creditors of John & David Will-son) for priority of satisfaction out of rents and profits of certain real estate of their common debtors, which had accrued pending the first suit, and were at the disposal of the court. The case was thus:
    By deed of bargain and sale, dated the 11th March 1819, Brown sold and conveyed to J. & D. Willson four lots in the town of Waynesborough; and the Willsons executed a deed of trust, dated the 30th day of the same month, whereby they conveyed the four lots to a trustee, in trust to secure the payment of the purchase money to Brown in instalments. This deed of trust, reciting that the Willsons *owed Brown 3250 dollars, to be paid as per bonds, by the 25th February 1827, conveyed the lots to the trustee, upon trust, “that he should permit the said J. & D. Willson to remain in quiet and peaceable possession of the property, and take the profits arising from the same to their order, use and benefit, until default should be made in the payment of the said sum of 3250 dollars; and that, upon such default happening in the year aforesaid” (namely, in 1827,) the trustee should sell the subject to satisfy the debt.
    And by another deed of trust, dated the 9th October 1819, the same J. & D. Willson,, in order to secure a debt of 1509 dollars due to Little & Telford, conveyed the same lots-which they had bought of Brown, and the-yearly rents, issues and profits thereof, and: all their right, title and interest therein, to a trustee, upon trust, that he should sell1 the same to satisfy the debt, as soon after the 9th October 1821, as conveniently he could, or as Little & Telford should require-
    'The trust subject having been abandoned' by the Willsons, and left to be disposed of among the creditors, was, upon the motion of Little & Telford, soon after the commencement of their suit, put into the hands of a receiver of the court, to let out and receive the rents. And the subject itself proving insufficient to pay the debt of 3250 dollars due to Brown, and secured by the first mentioned deed of trust; and all the rents accruing prior to the 1st January 1823, and part of the rents of that year, having been expended in repairs under orders of the court; the question arose, between the appellants Little & Telford, and the appel-lee Brown, which was entitled to the rents accruing afterwards down to the 25th February 1827?
    The chancellor held that Brown was entitled to them, and decreed that they should be paid over to him; from which decree Little & Telford appealed to this court.
    Daniel, for the appellants,
    said the decree was clearly erroneous. It gave to Brown that which the deed of trust *of the 11th March 1819, under which he claimed, expressly reserved to the Willsons; and it took from Little & Telford that which, as it belonged to the Willsons, exempt from Brown’s lien, they had a right to mortgage and which they did mortgage, in express terms, to Little & Telford.
    There was no counsel for the appellee.
    
      
      Vendor’s Lien — Effect Thereon of a Mortgage for Purchase Money. — When a vendor takes a mortgage of the subject sold to secure the purchase money, his implied equitable lien for the purchase money is superseded, and he can claim only under the mortgage. To this point, the principal case was cited in Wilson v. Davisson, 2 Rob. 400: Buchanan v. Clark, 10 Gratt. 176; Blair v. Thompson, 11 Gratt. 444; The Ann C. Pratt, 1 Fed. Cas. 951.
    
   GREEN, J.,

delivered the opinion of the court. The deed of trust to secure the debt to Brown, expressly stipulated, that the Willsons should enjoy the rents and profits until the 25th February 1827, and Brown could not have acquired the possession, nor consequently received the rents and profits until after that day, either by an action at law or a bill in equity; and the deed of trust to secure the debt to Little & Telford, expressly conveyed the rents, issues and profits accruing from the 9th October 1821. That is, the Willsons conveyed by the last deed, the very right which they had reserved by the first. The circumstance, that the debt secured by the first deed of trust, was for the purchase of the property, has no effect upon the question as to the rents. For, 1. the implied lien for the purchase money, which would have existed if the deed of trust had not been given, was utterly destroyed by the execution of that deed, and whatever effect that implied lien might have had upon that question, it is superseded by the express stipulation in the deed: expressum facit cessare taciturn. And, 2. such an equitable lien gives no right at law or in equity, to claim rents and profits. Certainly the creditor could not maintain a suit at law for them; and such a claim has never been allowed or even made in equity. The decree so far as it affirms the right of the ap-pellee and disaffirms that of the appellants to the rents in question, must be reversed.  