
    Lewisburg
    
      Beirne's ex’ors & als. v. Campbell.
    (Absent Brooke, J.)
    1847. July Term.
    
    
      E sells land to C, and retains the title. C sells to B, and B conveys the land with general warranty, to trustees for the benefit of his creditors; he being still debtor to C for a part of the purchase money. C then brings a suit against the heirs of E to obtain the title; and a decree is made appointing a commissioner to convey the land to C; but the commissioner by the direction of C conveys the land to B. The land is then sold by the trustees to A B; and thereupon C files a bill to subject the land for the balance of the purchase money due him from B, who is then insolvent. The trustees and A B deny notice that the purchase money was due at the time of the conveyance to the trustees; and there was no proof of notice ; but B’s deed shewed he had not the legal title. Held : The land is liable for the purchase money due to C.
    
    This was a bill filed in the Circuit Court of Monroe county by William Campbell against Andrew Beirne and others, seeking to enforce a lien on a tract of land then in the possession of Beirne, for a balance of purchase money of the land due from a previous purchaser. The pleadings and proofs present the case as follows : In 1794 William Estill sold to Samuel Campbell a tract of land in the county of Monroe, near the Red Sulphur springs. He did not convey the land to Campbell, but put him in possession, and executed to him a bond binding himself to make him a title. Samuel Campbell died, having devised the land to his three sons: and it was afterwards divided, and the * plaintiff took possession of the part allotted to him. In 1835 the plaintiff sold the land to William Burke for 1325 dollars, and executed to Burke a bond by which he bound himself to make him a title to the land.
    In 1836 the plaintiff1 and his brothers instituted a suit in the Circuit Court of Monroe against the heirs of Estill, for the purpose of obtaining a title to the land. And in 1839 a decree was made by which James A. Dunlap was appointed a commissioner to convey the land to the Campbells ; and all of them having sold to Burke, and directed Dunlap to convey the land to. him, Dunlap executed a deed bearing date the 5th of October 1840, by which he conveyed the land to Burke.
    
    Previous to the conveyance by Dunlap to Burke, viz : on the 20th January 1837, Burke conveyed this land with several other tracts which he owned, to John H. Yawter and Conway Robinson, in trust to secure a debt he owed to Andrew Beirne. This conveyance referred to the agreement between himself and Campbell; but was with general warranty of title. Afterwards in 1843 Vawter and Robinson sold the lands conveyed to them, and this tract was purchased by Andrew Beirne. Immediately after the sale this suit was brought; the plaintiff alleging that there was due to him a balance of 125 dollars and some interest of the purchase money, from Burke, who was then insolvent.
    The trustees and Beirne answered, denying that they had notice that any part of the purchase money was due from Burke to the plaintiff when Burke's deed to the trustees was executed, or indeed until about the time of the sale ; and Beirne insisted, that the legal title having been conveyed to Burke by the directions of Campbell; and that legal title vesting in the trustees by virtue of the warranty in Burke’s deed to them, he held by their conveyance to him the legal title without notice of the plaintiff’s equity.
    When the cause came on to be heard, the Court below held that the plaintiff had a lien on the land in the bill mentioned, for as much of the purchase money as was still due upon the contract between the plaintiff and Burke; and it not sufficiently appearing how much was due, a commissioner was directed to ascertain and report the same to the Court. From this decree the executors of Beirne, he having died pending the suit, applied to this Court for an appeal, which was allowed.
    
      N. Harrison, for the appellants,
    to shew that the conveyance by Dunlap to Burke vested the legal title in the trustees, referred to Doswell v. Buchanan’s ex’ors, 3 Leigh 365, and Jackson v. Wright, 14 John. R. 193.
    He insisted further, that as actual notice was denied and not proved, the law would not imply notice of an intermediate vendor’s lien. That though the withholding the title by Bstill might imply notice of his lien for the purchase money, if it had not been paid, it could afford no ground for the implication that Campbell had not been paid by Burke. And as the deed was made to Burke by Dunlap by the direction of Campbell, that itself was a declaration that he had no lien, or that he waived it.
    
      Caperton for the appellee,
    referred to 2 Story’s Equi. Juris, p. 470, § 1224, and p. 480, § 1228, to shew that the vendor’s lien exists against a vendee and purchasers under him, having only an equitable title ; and that the onus is on the vendee to show that it has been intentionally waived. And he referred to Story’s Equi. Plead, p. 754, and Doswell v. Buchanan’s ex’ors, 3 Leigh 365, to shew that to sustain the defence of purchaser without notice, it is necessary to shew that the vendor was seized in fee, or pretended to be seized, and was in. possession. And he then referred to the answers of the defendants to shew that they admitted they knew that Burke had only an equitable title.
    He further insisted that the defendants having had constructive notice when the conveyance was made by Burke to the trustees, which was the same in its effects as actual notice, (Sugd. on Vend. 532, Doswell v. Buchanan’s ex’ors, 3 Leigh 365,) the deed from Dunlap to Burke could not change the fact, and thereby destroy the vendor’s lien. And the fact that Campbell directed that deed to be made to Burke did not deceive or injure the purchasers, as their deed had been taken before that direction was given.
   Ex the Court.

Affirm the decree.

Allen, J.

dissented. He was of opinion that the trustees and cestuis que trust had no actual notice of Campbell’s lien, either when Burke’s deed was made or when Dunlap conveyed to Burke; and that the retention of the title by the first vendor was not a constructive notice of the subsequent vendor’s lien; and. therefore Beirne having the legal title was entitled to the benefit of the defence of purchaser for value without notice.  