
    Knisely v. Williams & als.
    July Term, 1846,
    Lewisburg.
    [46 Am. Dec. 193.]
    Vendor’s Lien — Bond for Purchase floney — Surrender of — Taking Order on Third Person. — A vendor of land takes a bond for the purchase money, and retains the title to the land. Afterwards he agrees with the vendee to receive an order on a third person, payable at a distant day, for the amount of the bond, and the bond is surrendered, and the order is given; but when it is presented the drawee refuses to accept it. Held.
    1. Same — Same—Same—Same—Release of Land from Lien. — The surrendering the bond, and taking the order which is not accepted, does not release the land from the vendor’s lien for the purchase money.
    2. Same — Same—Same—Enforcement of Lien. — The vendor is not bound to wait until the time when the order would have been payable, before proceeding to enforce his lien upon the land.
    3. Vendor and Vendee — Order for Purchase Money— How Treated. — At the time the order was drawn, the drawee was indebted to the drawer for the purchase money of land. Held, the vendor may consider the order as a transfer in equity of so *much of the purchase money; and may enforce the vendor’s lien against the laDd purchased and held by the drawee of the order, from the drawer.
    On the 29th of February 1841, John and Abraham Kinsely filed their bill in the Circuit Superior Court of Harrison county, against Timothy Maxon, Hannah Williams, and William G. Williams, in which they charged that in 1838, they sold to Maxon a tract of one hundred acres of land, at the price of 300 dollars, of which 175 dollars was paid, and Maxon executed his bond for the balance, 125 dollars, to the complainant John, payable on the 1st of October 1839. That Maxon professed to buy this land for the purpose of satisfying a claim which Hannah Williams had against him; and that he bought it for her. That at the time the bond was executed, the complainants executed to Hannah Williams, and delivered to Maxon, a title bond, in the penalty of 750 dollars, binding themselves to convey the land to the said Hannah, when the residue of the purchase money was paid. That Maxon having taken possession of the land sold it in May. 1839; to William G. Williams, who holds both it and the title bond; and is still debtor for the greater part of the purchase money.
    They farther state, that on the 21st of November 1840, the complainant John Knisely and Maxon ascertained that there was then due from Maxon, on account of .the purchase money of the land, and interest, 138 dollars 12j¿ cents; and Maxon stating that he had not the money, but that one Nathan West would owe him, proposed to give to John Knisely an order on West, for the payment of the debt in September 1842. That Knisely agreed, if West would accept the order payable in September 1842, he would wait until that time. That the order was drawn by Maxon and given to John Knisely, who then handed to Maxon his bond for 125 dollars. That West refused to accept the order; *and that Maxon refused to take back the order and return the bond, or pay the money. That complainants are willing to convey the land upon receiving the balance of the purchase money, but that Maxon insists that the acceptance of the order on West, and delivery of the bond, was a discharge of the vendor’s lien, and forbids Williams paying the amount due complainants. They therefore pray that the land may be sold to satisfy the unpaid purchase money, and for general relief.
    Maxon filed his answer, in which he admitted the purchase, the execution of his bond, and its return to him, and the giving the order on West, as stated in the bill. But he does not admit that West refused to accept the order; but says he is informed by West he is willing to accept it. He admits Knisely informed him West would not accept the order, and requested him to return his bond; but that Kinsely knew that the bond could not be returned, as it was destroyed in his presence at the time the order was given. That he had agreed that if West had refused to accept the order, that he would give Knisely his note, payable at the time the order was to be paid, which Knisely agreed to, but that no materials for writing being at hand, it was agreed it should be done at another time; and that he has always been ready to give the note. He insists that complainants have no right to payment of the amonnt of the order until the time it was made payable, if it was protested; and that therefore complainants have no right to come into Court before that time.
    After September 1842, the complainants filed a supplemental bill, making West a party, in which they charge that the debt due from West to Maxon, is for the purchase money of land, which is still held and owned by West, and is bound for the purchase money. That the order given by Maxon to John Knisely on West, is in equity a transfer of so much of the unpaid purchase money due from West to Maxon. That West ^refuses to accept or protest the said order, nor will he pay the same; alleging at some times, that he does not owe Maxon, at others, that he apprehends a deficiency either in the title or quantity of the land purchased by him from Maxon; and that Maxon will take no steps to ascertain what is really due to him from West. They therefore pray that the accounts between West and Maxon may be settled; and that West may be compelled to pay the amount of the order, or so much as he may owe Maxon; and that the land sold by Maxon to West may be subjected to satisfy the amount of said order, or so much thereof as West may owe Maxon.
    West demurred to this bill: and the cause coming on to be heard in May 1843, the Court was of opinion that the plaintiffs having retained the legal title to the land sold by them to Maxon, that they had a lien upon the land in the possession of Williams, for the purchase money; and that the taking the order on West for the balance of the purchase money, and delivery up of the bond to Maxon, was not an extinguishment of their lien, if the order was not paid. The Court was further of opinion, that the order drawn by Maxon on West, being for purchase of land sold by Maxon to West, for which Maxon had a vendor’s lien on the land so sold, that the plaintiffs might at their election, consider themselves as transferees of Maxon, and entitled to all his rights, and might assert his vend- or’s lien. But the Court was farther of opinion, that until the time arrived at which the order drawn by Maxon on West came to maturity, the plaintiffs had no right of action against either Maxon or West, and having commenced their suit when they had no right to demand the amount of the order, they could not by engrafting their supplemental bill on their original bill cure the defect, although at the time of filing the supplemental bill, the order had arrived at maturity. The Court therefore dismissed both the original and supplemental bills, with *costs, but without prejudice. Rrom this decree, the plaintiffs applied to this Court for an appeal, which was allowed.
    William A. Harrison, and Lee, for the appellants, submitted the case. There was no counsel for the appellees.
    
      
       Vendor’s Lien — Discharge of. — It was held in Mansfield v. Dameron, 43 W. Va. 795, 26 S. E, Rep. 527, citing the principal case, that in a sale of realty, the vendor retaining title, the taking of a note of either vendor or a third person will not discharge the lien by implication, in the absence of plain intention that it shall so operate. The principal case is cited to this point in Yancey v. Mauck, 15 Gratt. 311; Summers v. Dame, 31 Gratt. 806; Coles v. Withers, 33 Gratt. 193; Jameson v. Rixey, 94 Va. 344, 26 S. E. Rep. 861; Frazier v. Hendren, 80 Va. 270. See foot-notes to Yancey v. Mauck, 15 Gratt. 300, and Coles v. Withers, 33 Gratt. 187,
      In Dunlap v. Shanklin, 10 W. Va. 662, it was held that giving a receipt for notes on a third person, specifying that it is for purchase money, will not, while the title remains in the vendor, be an extin-guishment of the lien.
      Specific Performance — Who May Haintain Suit — Assignees. — ^The principal case is cited in Yancey v. Mauck, 15 Gratt. 309, to the point that the assignee for value of a note given for the purchase money of land, may maintain a suit against his assignor, the vendor and the vendee for a specific execution of the contract, in a case proper fpr such relief, and subject the land to the satisfaction of his claim, where the vendor has not parted with the title. See foot-note to Hanna v. Wilson, 3 Gratt. 243.
      Same — Same—Vendor—Unexecuted Contract, — The principal case is cited in Yancey v. Mauck, 15 Gratt. 308, and Stoner v. Harris, 81 Va. 461, to the point that where there is an unexecuted contract of sale, the vendor may file a bill to have specific execution, and have the land sold for his debt. See further, in this connection, foot-notes to Hanna v. Wilson, 3 Gratt. 243; Beirne v. Campbell, 4 Gratt. 126, and Hopkins v. Cockerell, 2 Gratt. 88.
    
   ALLEvN, J.,

delivered the opinion of the Court.

The Court is of opinion, that as it appears the appellant John took the order in the proceedings mentioned, in consideration of the bond for the purchase money then due, the taking of such order did not extinguish the right to hold the land subject to the payment of the purchase money, if the order was not accepted; and that, upon the failure of West to accept the order, the appellants had an immediate right to proceed against said Maxon for the amount due. The Court is therefore of opinion, that the said Circuit Court erred'in sustaining the demurrer to the supplemental bill, and in dismissing the said supplemental and original bills with costs. Therefore it is adjudged, ordered and decreed, that the said decree of the Circuit Court be reversed and annulled, and that the appellees pay to the appellants, their costs by them expended about the prosecution of their appeal here. And this Court proceeding to render such decree as the said Circuit Court ought to have rendered, it is adjudged, ordered and decreed, that the demurrer of said West to the supplemental bill be overruled, and that said West answer over. And it is further adjudged, ordered and decreed, that the said T. Maxon pay to the appellants the sum of 125 dollars, with interest from 1st October 1839 till paid; and their costs in said Circuit Court expended.

And it is further adjudged, ordered and decreed, that the appellants do make and execute a deed conveying the land in the title bond mentioned to the appellee, *Hannah Williams, with covenants of warranty according to the provisions of said title bond, and acknowledge the same in order to be recorded, and upon filing such deed so executed and acknowledged, amongst the papers of the cause, unless said Timothy Maxon, or some person for him, shall pay said debt, interest and costs herein decreed against him, within 30 days after such deed shall have been so filed, that then the sheriff of Harrison county, who is hereby appointed a commissioner for that purpose, after advertising the time and place of sale for four weeks successively, &c. proceed to sell said land at six and twelve months, taking bonds with security, and retaining a lien for payment of the purchase money, and report, &c. And leave is reserved to the appellants to proceed against said West in the event of this decree proving unavailing in whole or in part.  