
    Case 59 — PETITION EQUITY —
    February 1.
    Guy v. Butler, &c.
    APPEAL PROM ADAIR CIRCUIT COURT.
    1. A vendor of land took three notes from his vendee, and gave him a bond for conveyance. The vendor transferred two of the purchase-notes to one party and the third note to another party, and then made a deed of conveyance to his vendee, reserving a lien to secure the two purchase-notes, and pretermitting the third note. The holder of the two notes instituted suit against the purchaser to enforce his lien, and subject the land to the payment thereof. The holder of the third note asked to be made a party, and filed an answer and cross-petition, alleging that the third note was secured by an equitable lien on the land, and that the parties to the conveyance had notice of her equity, and fraudulently designed by the conveyance to deprive her of it. The circuit court sustained a demurrer to that answer and cross-petition, and adjudged a sale of the land for paying the two notes alone. That ¡judgment is reversed.
    
    2. The vendor of the land parted with his title to the land, and transferred the purchase-notes to third parties. In a suit by the assignee of the purchase-notes to enforce his lien the vendor was not a necessary party.
    Winery & Winery,........For Appellant,
    CITED
    1 Parsons on Contracts, 6.
    2 Parsons on Contracts, 767.
    Baker & Walker,........For Appellees,
    CITED
    Revised Statutes, 2 Stanton, 230.
    18 B. Mon. 833, McBrayer v. Collins.
    1 Bush, 44, Taylor v. Ford, &c.
   JUDGE ROBERTSON

delivered the opinion or the court.

Jacob F. Pelly, original owner of tbe equitable title to tbe land, and of tbe legal title to tbe notes executed by the Cunninghams as the consideration for his sale of the land to them, having parted with both titles, was not a necessary party to Elizabeth G-uy’s cross - petition for enforcing her lien for the note assigned to her by J. E. Pelly.

When that note was assigned it operated as an equitable lien on the land, which the subsequent conveyance to the Cunninghams of the legal title by the holder of it, reserving a lien for the two notes assigned to Butler and preterm'it-ting the note assigned to Elizabeth Guy, did not squeeze out, if, as her cross-petition alleged, the parties to that conveyance had notice of her equity, and fraudulently designed thereby to deprive her of it.

The demurrer admits her allegations, and ought therefore to have been overruled. Consequently the circuit court erred in sustaining the demurrer, and decreeing the sale of the land for paying the notes held by Butler alone.

Wherefore that judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.  