
    Lafayette Whetsel v. William Roberts et al.
    R. sold and conveyed real estate to C., for which he received the notes of 0. on time. Subsequently, 0. sold and conveyed the property to W., who, assuming the payment of the purchase-money still owing to R., gave his notes to R. in lieu of the notes to 0.—Held; That the substitution of the notes of W., the last purchaser, for those of 0. did not extinguish the vendor’s lien in favor of R., the first vendor.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Union county.
    The original action was instituted by Roberts, the defendant in error, against Whetsel, the plaintiff in error, and John Cartwell, in the Court of Common Pleas of Union county, to enforce a vendor’s lien on certain real estate. Roberts sold and conveyed thé premises in controversy to Cartmell, for the consideration of a thousand dollars. Subsequently Cartmell sold and conveyed the premises for a like consideration to Whetsel. The deed from Roberts, as well as the deed from Cartmell, contained the usual covenants against incumbrances and of warranty.
    At the time of the sale and conveyance by Cartmell to Whetsel, six hundred dollars of the purchase money due Roberts remained unpaid, for which Roberts held the promissory notes of Cartmell not then due. According to the terms of sale between Cartmell and Whetsel, the latter executed his promissory notes, payable to Roberts, for the unpaid purchase money owing to Roberts. These notes were for the same amounts, and matured at the same time as the notes held by Roberts against Cartmell. The notes of Whetsel were received by Roberts in lieu of the notes he held against Cartmell, the last-named notes being surrendered to Cartmell by Roberts on his receiving •the notes of Whetsel. The remainder of the notes, given by Whetsel for the purchase money, were given to Cartmell. At the time of his purchase, Whetsel knew that the notes held by Roberts against Cartmell were given for the purchase money of the premises.
    The court found that Roberts held a vendor’s lien on the premises for the amount of Whetsel’s indebtedness to him; and rendered a decree accordingly. .
    On petition in error, prosecuted by Whetsel, the district court affirmed the judgment.
    To reverse these judgments the present proceeding is instituted.
    The principal ground of error assigned is, that Roberts, by surrendering the notes of Cartmell, and accepting those of Whetsel in lieu thereof, waived or discharged his vend- or’s lien.
    J. L. Cameron, for the motion,
    claimed that Roberts was not entitled to a vendor’s lien, because a vendor’s lien is a mere legal fiction, is personal, and a transfer of the notes destroys it. Stansel v. Robérts, 18 Ohio, 148; Mohun v. Combs, 14 Ohio, 428; Combs v. Parker, 17 Ohio, 289; Jack-man v. Hallock, 1 Ohio, 318; Bush v. Kingsley, 14 Ohio, 20.
    
      Sterling $ Ayers, contra,
    cited Boos v. Kioing, 17 Ohio, 500.
   White, C. J.

We find no error in the judgment of the district court.

The vendor’s lien rests on the ground that it would be inequitable and contrary to the intention of the parties to allow the purchaser to retain the estate without paying the purchase-money.

The principle of the lien originates in the doctrine of equitable trusts.

• When the lien exists, courts of equity regard the vendee as a trustee of the vendor to the extent of the unpaid purchase money. The equity or lien of the vendor follows the estate' into the hands of all subsequent purchasers having notice of its existence. Such purchasers stand in no better situation than the first vendee; and they are chargeable with the same trusts, as respects the estate, as were enforcable against him while he retained the estate. Blackburn v. Gregson, 1 Bro. Ch. 424; Boos v. Ewing, 17 Ohio 500; 1 Perry on Trusts, sec. 232.

In the present case, Whetsel, the last purchaser, acquired the property with full notice that the purchase-money due from his immediate vendor, Cartmell, to Roberts, was unpaid. By his purchase Whetsel assumed the payment of the purchase-money owing to Roberts; and the question is whether Whetsel, by giving his notes to Roberts for the unpaid purchase-money, instead of to his immediate vendor, discharged the lien.

It seems to us the giving of the notes had no such effect. If the notes had been given to Cartmell instead of to Roberts, there would be no question as to the continued existence of the lien in favor of Roberts, the first vendor, which he might have enforced against the property in the hands of Whetsel. Equitably the money would be coming to Roberts. Eor if Whetsel paid his notes to Cartmell, the latter was bound to pay the same amount to Roberts in discharge of the lien which he held for the purchase-money.

The substance of the transaction was- the consummation of the sale, by substituting, with the consent of all the parties, the notes of Whetsel, the last purchaser, for the notes of Cartmell, the first purchaser.

There is nothing in the transaction to indicate that it was the understanding of the parties that by the substitution' the lien was to be discharged. Nor is there any equitable ground upon which the transaction should be allowed to have that effect.

Equity regards only the substance of a transaction. And where property is charged with a trust in favor of a former vendor, looking alone to substance, we see no good reason why the giving of his note by the trustee should work any greater effect, in respect to disehai-ging the trust, when given to a remote than when given for the same purpose to his immediate vendor.

Leave refused.  