
    John J. Thompson vs. Thomas H. Williams et al.
    W. and B. filed their bill against J., alleging that A. and O. sold them a tract of land for $ 4,160, of which $ 1,200 was paid in cash, and the rest to be paid in twelve, twenty-four, and thirty-six months ; the vendors gave a bond to make title when the money was paid; W. assigned his interest in the land to N. G. W. and indorsed on the title bond a direction to A. and 0. to convey to N. G. W. his interest, when N. G. W. had paid the portion of the purchase-money due by W. Afterwards N. G. W. sold by parol to J., who prevailed on B., his co-tenant in common, to induce A. and O. to convey to J. that portion of the land bought by W. The bill alleges further, • that $ 1,000 of the original purchase-money were still due to A. and O. by W., and prays that the land may be subjected to the payment of it; A. and O. were not made parties to the bill. Held, that W. not having paid the purchase-money to A. and 0., had no vendor’s lien on the land; and that, although he was probably released from his indebtedness to A. and 0., by their execution of the deed to J., yet as they were not parties to his bill, he could have no relief against them, and his bill must be dismissed.
    Appeal from the district chancery court at Fulton; Hon. Henry Dickinson, vice chancellor.
    Thomas H. Willians and Benjamin Bugg, allege in substance in their bill, that in the month of November, 1836, they purchased sec. 3, T. 12, R. 3, E., of Henry Anderson and Edward Orne for the sum of $4,160, of which they paid, at the time of the purchase, $1,200, and gave their three notes at twelve, twenty-four, and thirty-six months, with interest from date, at eight per cent, for the residue, and took a title-bond from the vendors, to make title when the notes were paid. That in December thereafter, an agreement was entered into between Williams and Bugg, and one Nathan G. Williams, by which Nathan G. took the place of Thomas H. Williams, and the agreement was signed by Bugg and Nathan G. Williams, which agreement divided the land between Bugg and Nathan G. Williams, and bound the latter to pay the liability of Thomas H. Williams to Anderson and Orne, and Thomas H. Williams indorsed the title bond to that effect, and directed Anderson and Orne to make the title to Nathan G. Williams, where he had paid the money due them by Thomas H. Williams, and delivered it to them. That the liability of Thomas H. Williams to Anderson and Orne was not changed, so far as they were concerned, nor had he any showing from Nathan G. Williams that he was to pay the liability of Thomas H. Williams, except the agreement between Bugg and Nathan G. Williams. That Anderson and Orne sued Thomas H. Williams and Bugg, and obtained judgment on the 15th of November, 1841, for $4,034.83, besides costs, and that that judgment is still in full force against them.
    The bill charges further, that Nathan G. Williams, shortly after his purchase from Thomas H. Williams, sold his interest in this land, by verbal contract, to his brother-in-law, John J. Thompson, who went into possession, and still had possession; that various payments- had been made by Nathan G. Williams in his lifetime; that he died in February, 1843, intestate. Subsequent to his death, Thompson had made payments, and in May, 1844, Thompson, by falsely and fraudulently representing to Bugg, that he had paid the full amount of Thomas H. Williams’s liability, procured a direction from Bugg to Anderson and Orne, to make him (Thompson,) a title to the one half of the section of land, according to-the agreement between Nathan G. Williams and Bugg. The bill charges, that upwards of $1,000 is still due from Thompson, as purchaser from Nathan G. Williams, or from the heirs of Nathan G. Williams, on the land, and prays for an account, that Thompson may be decreed to hold the land as trustee for complainants, and that the land may be-subjected to the payment of the amount due on the judgment, in favor of Anderson and Orne. The heirs of Nathan G, Williams, and John J. Thompson, are made parties to the suit.
    The answer of Thompson admits the allegations in the bill, as to the purchase of the land by Williams and Bugg, but insists that Thomas H. Williams purchased originally, as agent of Nathan G. Williams, and for him. Thompson also admits his purchase, but denies all fraud or misrepresentation in obtaining the deed, and charges, that at the time the deed was made, a settlement was had and a balance struck, and the full amount due from Thompson, as representative, by purchase, from Nathan
    G. Williams, was paid. It is not deemed requisite to set out the proof. A great deal of it was directed to establish the fact of payment to Anderson and Orne, of the indebtedness of Thomas H. Williams.
    The vice-chancellor decreed, that there was a balance due the complainants on the land, which was a lien on it, and for the payment of which it ought to be sold, and as it was uncertain what sum was due, ordered the cause to he referred to the clerk of the vice-chancery court, to state an account upon the pleadings and proofs; he reported that the sum of $1,040.58 were due to Thomas H. Williams and Bugg, from the estate of Nathan G. Williams, on the land; and the court confirmed the report. From which interlocutory decree of confirmation, and before a final decree was signed, the defendants appealed.
    
      Bennett and Featherston, for appellants.
    1. The material allegations in the bill are denied by the answers; it devolves on the complainants to sustain the bill by the testimony of at least one witness, and such corroborating circumstances as are equivalent to a second, or the testimony of two witnesses to sustain it. 1 Phillips on Evid. Cow. & Hill’s edition, 154, 155; 2 Story’s Equity Juris. 995, 1528; Smith v. Brush et al. 1 John. Ch. R. 459. This has not been done.
    2. The execution of ‘the deed from Anderson and Orne to Thompson, is at least prima facie evidence of the payment of the purchase-money.
    3. Admitting that the purchase-money has not all been paid, there was error in awarding the sale of the land to pay the debt. Are they estopped by the long possession of Thompson, and their failure to attempt previously to enforce their supposed lien from now enforcing it? 1 Sto. Eq. Jur. 412; 1 John. Ch. R. 344; 6 Ibid. 166.
    4. If Anderson and Orne, in violation of the instructions given by Thomas H. Williams, has made a deed to N. G. Williams’s vendee, they thereby discharged Thomas Id. Williams from his liability to them.
    5. It will be said Thomas H. Williams is liable for the whole of the purchase-money, and not one half; if the vendor discharge 'Thomas H. Williams’s liability by the payment of the purchase-money of one half of the section by his vendee, neither Bugg nor Thomas H. Williams can be heard to complain in chancery, as they are not injured by the arrangement.
    6. Admitting that Thomas H. Williams is still responsible for the half of the purchase-money unpaid by his co-complainant, Bugg, still he is not entitled to a decree as co-complainant with Bugg, but in that event could only be entitled to relief by the allegation of the insolvency of Bugg.
    7. If the execution of the deed from Anderson and Orne discharges Thomas H. Williams from liability, any recovery by Anderson and Orne against Thomas H. Williams, without his taking the requisite steps to be relieved, can be no ground of complaint by Thomas H. Williams against Thompson, unless it shall be believed without proof that the deed was procured by fraud.
    8. Even if the deed was procured by fraud, it does not become Thomas H. Williams to complain, but Anderson and Orne, upon whom the fraud was practised.
    
      Harris and Harrison, on the same side,
    contended,
    1. That where a complainant prays for particular relief, and for other and further relief, he can have no relief inconsistent with the specific relief asked, even though there may be a just foundation for it in the bill. Pleasants fy Co. v. Glasscock et al 1 S. & M. Ch. R. 25 ; Colton v. Ross, 2 Paige, 396. The decree granted is altogether different from that prayed for.
    2. Anderson and Orne were the vendors of the land; they have never transferred their debt for the purchase to any one; no one has ever been subrogated to their rights, but on the contrary, they have conveyed the legal title to Thompson, and claim no lien at all. They are not heard to complain, are not parties to the bill, require no trust to be created for their benefit, and do not ask the court to subject the land or any part of it to the payment of their judgment.
    3. It is alleged that Thompson committed a fraud in getting the legal title to the part of the land conveyed to him. Fraud and damage must go together to entitle the party to relief. Thompson did not purchase of complainants, but of Nathan Williams, and there is no allegation that the estate of Williams is unable to pay. The contract between Nathan Williams and Thompson was an absolute sale; and there is no privity between complainants and the latter person. Those who represent the estate are content, the original vendors are satisfied, and what right have complainants to follow the land, and to say that it is a fraud upon their rights for the legal title to be made to Thompson ?
    
      T. J. Word, for appellees.
    “A vendor of land who takes no separate or other security for the purchase-money, retains a lien upon the land for its payment; and none but bona fide purchasers, without notice, can set up an implied waiver of this equitable mortgage.” Upshaw v. Hargrove, 6 S. & M. 286.
   Mr. Justice ThacheR

delivered the opinion of the court.

Thomas H. Williams and Bugg filed their bill, charging that in 1S36, they purchased of Anderson and Orne a tract of land for $4160, paying cash $1200, and making their notes at twelve, twenty-four and thirty-six months, with interest from date, at eight per cent., and received a title bond from vendors. Soon after, Thomas H. Williams assigned his interest in the purchase to Nathan G. Williams, and indorsed upon the title bond a direction to Anderson and Orne, to make a conveyance of his interest to Nathan G. Williams, upon his discharging the liability of Thomas H. Williams upon the notes described in the title bond. Subsequently, Nathan G. Williams made a verbal sale of his interest thus acquired to John J. Thompson, who, in the event, prevailed on Bugg to induce Anderson and Orne to make him a title to that portion of the land originally the property of Thomas H. Williams, as aforesaid. It is a matter of controversy, whether the whole amount of Thomas H. Williams’s liability has been liquidated by Nathan G. Williams in his lifetime, or since 'by Thompson. The bill sets up that $1000 is still due, and prays for an account, and that the land may be subjected to the payment of that amount, in accordance with which the Vice-chancellor decreed. The amount of cash payment, $1200, made at the purchase by Thomas H. Williams and Bugg, was derived from Nathan G. Williams, and he has advanced no part of the purchase-money.

From all the foregoing circumstances, it seems most probable that the remedy of Thomas H. Williams is against Anderson and Orne, resisting the payment of the judgment against him. He certainly is not invested with a vendor’s lien upon the land, as against Nathan G. Williams and Thompson, for the very obvious reason that he has not paid the purchase-money to Anderson and Orne, and thus become invested with their equities. But as Anderson and Orne made title to Thompson, in opposition to the terms directed by Thomas H. Williams, and not at his request but at the request of another, he is probably thereby released from his indebtedness to Anderson and Orne, since his directions were that such a conveyance was only to be made upon the full discharge of his liability to them.

In the present aspect of the case, however, Anderson and Orne, not having been made parties, we are obliged to direct this bill to be dismissed.

Decree reversed, and bill directed to be dismissed.  