
    Richard D. Hall and others, vs. Luther D. Jones and others.—Luther D. Jones and others, vs. Richard D. Hall and others.
    Ratification by Infants on Arriving at Age, of Sale made on tiieir behalf. — Where a faiher, on behalf of himself and his minor children, makes a contraed, of sale of land, which the children on arriving at age ratify, such ratification by the children relates back to the date of the sale, and has the same effect as if they had been of full age, and were parties to the contract of sale made by their father, and will enure to the benefit of the party entitled under the original vendee.
    Vendor’s Lien. — From the time of making a contract for the sale of land, and until payment, the vendor has a mere lien on the land for the purchase money. The interest of the vendor in such contract is not real estate, but only personal estate; and in case of the vendor’s death, the unpaid purchase money is treated as only personal estate, and goes, not to his heirs but to his personal representatives.
    --: Extinguishment of Lien: Subrogation. — If the vendor, instead of pursuing his remedy in equity, prosecutes an action at law against the vendee and his surety, on a note given by them for the purchase- money, obtains a judgment, levies an execution on the vendee’s equitable estate, sells the same under the execution, and the surety becomes the purchaser under this judicial sale, the vendor’s lien is thereby extinguished, and such surety buys like any other purchaser, upon the' principle of caveat emptor, subject to any outstanding judgment or lien existing against the original vendee, and this extinguishment of the vendor’s lien entirely excludes the surety’s right of subrogation.
    If the purchase thus made be under an execution upon a junior judgment, and subsequently execution upon a senior judgment is issued, and under it the equitable interest of the original vendee is again sold, the purchaser will acquire a superior title to that of the purchaser under the junior judgment.
    Cross-Appeals from the Equity side of the Circuit Court for Prince George’s County:
    
      Bill in Equity filed by Jones and others against Hall and. others, November 9th, 1857. - These appeals are taken from an order of the Court below, (Grain, J.,) passed June 9th, 1860: the appeal of Hall and others from that part of the decree directing a conveyance of the legal title to the land in question to the complainants; and the appeal of the complainants from so much of said decree as dismissed said bill as to Richard H. Hall. The facts of this case arc further stated in the opinion of this Court :
    The cause was argued before Bowie, C. J., Bartol, Goldsborough, and Cochran, J.
    
      Wm. H. Tuck and C. C. Magruder, for Richard D. Hall, argued:
    1st. That equitable estates in land are affected by judgments according to priority, and that a purchaser under the first of such liens takes the entire interest of the defendant in the judgment, as against him, and all persons •claiming by title subsequent, consequently when Jones pur- . chased under Isaac’s judgment, Jacob T, Hall had no interest that could pass under such sale. As between these parties the judgment had merged the cause-of action, the defendant’s interest had vested in a purchaser without notice, and Jones stood in no better condition than any other person purchasing under the junior judgment. 1810, ch. 160, sec. 1, 2. Pratt vs. Vamuyeh, 6 G. & J., 495. Richardson vs. Btillenger, 12 G. & J., 411, 483. Gilman vs. Brown, 1 Mason, 192, 221. Alderson vs. Ames, 6 Md. Rep., 52. Miller vs. Allison, 8 G. & J., 35.
    2nd; That the complainant’s claim, as assignee of the vendor’s lien, cannot be maintained, whether based on his purchase at the sheriff’s sale, or as surety of Jacob T. Hall,the vendee.
    The lien had never been assigned, in point of fact, and cannot pass by implication. Jones did not pay the purchase money and take an assignment of the bond and lien, nor did his purchase clothe him with the rights of assignee in equity. He bought what he supposed to be J. T. Hall’s-land, and paid for it, not as surety on the bond and judgment, but as purchaser at the sheriff's sale. Jaclcson vs. Halloch, 1 Ohio, 318. Ragan vs. SchneUy & Lewis, 7 G.. & J., 120. Watson vs. Bane, 7 Md. Rep., Ilf. Alderson vs. Ames, 6 Md. Rep., 52. Dixon vs. Dixon, 1 Md. Ch, 
      
      .Dec., 220, 271. Hayden vs. Stewart, 4 Md. Oh. Dec., 280. Welch vs. Parran, 2 Gill, 320.
    3rd. That the vendor cannot, nor can an assignee, proceed against the laud in equity, until he has first exhausted ,his remedies at law. Here Isaac must have proceeded on the bond of Hall and Jones, — and Jones claiming to stand in his place as assignee, must first sue Jacob T. Hall, at law. There is nothing to shew that he was not able to pay this debt. PraU, vs. Famoych, 6 G. & J., 495. Richardson vs. Stillinger, 12 G. & J., 477. Hyler vs. Orabbs, 2 Md. Rep., 137, 154. And it makes no difference whether the vendor has parted with the title or not. Hall vs. Maccubbin, 6 G. & J., 107. Richardson vs. Jones, 3 G. & J., 163, 187.
    4th. If, by virtue of this purchase, Jones acquired a right, he cannot claim the land in satisfaction. Isaac, the vendor, could not have made any such claim, and his assignee cannot occupy a better position towards the original vendee himself, much less against a purchaser without notice. He should have proceeded in such manner as to have afforded the appellee an opportunity to pay off the incumbrance and retain the land. The most that a vendor or his assignee can claim, is a sale of the land to satisfy the balance due. This relief, however, cannot be granted on the present bill, because there is no averment, or special or general prayer, to warrant such decree. Adams Eq., 128. Elysville Go. vs. OJeis'/co Co., 5 Md. Rep., 152. Mmdorff vs. Kilbourn, 4 Md. Rep., 459. Walsh vs. Smyth, 3 Bland, 1.
    5tli. That the form of the agreement and the Tjjond., shew that the parties contracted with reference to a security other than the land, and where such is the case, the vendor’s lien is waived. Parol proof cannot be received to explain or vary the import of the contract as shewn by these papers, and all such evidence being excepted to, must be rejected. Adams'' Eq., 128 n, note 341, top. Hall vs. Maceubbin, 6 G. d J., 107. 2 Story’s Eq., 470, 479, do. Brown vs. 
      
      Oilman, 1 Mason, 212. Affirmed in 4 Wheat., 290. Leading Cases in Eguity, 243, 244. Young vs. Maclcall, 4 Md. Rep., 362. Newcomer vs. Kline, 11 G. ds J".,457. Worthing vs. Bullett, 6 Md. Rep., 1*72. Richardson vs. Ridgely, 8 G. <& J., 89. Cross vs. Oohen, 3 Gill, 258. Act of 1810,, ch. 160. Miller vs. Allison, 8 G. & J., 35.
    6th. That the bill ought to have been dismissed as against all the defendants. But a decree for a deed to the complainants having been passed and the deed executed, that decree should be reversed, and the deed declared to be vacated, and another directed to he executed to the appellee, or the cause should be remanded with such directions to the Court below.
    Upon the appeal of the complainant, Richard D. Hall, we contend :
    ' That the predicament of the parties was not such, as to authorize a Court of Equity to remove him from the possession of the land. He was in by a superior title, subject to which J ones had purchased, and under such circumstances équity will not interfere. Groóle vs. Broion, 11 Md. Rep., 158.
    
      Thomas G. Pratt and Daniel Clarke, for Luther D. Jones and others, argued:
    1. That Joseph J. Jones having been the surety upon the bond given by Jacob T. Hall for the' purchase money of the real estate sold him by Joseph Isaac, and having» purchased under the execution issued upon the judgment obtained by Joseph Isaac against Jacob T. Hall and the Said Joseph J. Jones, upon the said bond given for the purchase money, and paid the purchase money to Joseph Isaac the vendor, the said payment operated as an assignment of the said judgment, and he became thereby entitled by substitution to the benefits of the vendor’s lien, and said vendor’s lien or equitable title thereby acquired, and which vested in the complainants, is paramount and superior to the equitable title of Richard D. Hall, who under the exeeution issued upon the judgment of William If. Tuck, administrator of Slater vs. Jacob T. .[fall, acquired only the equitable title of Jacob T. Hall the vendee. Magruder vs. Peier, 11 G. & J., 245. Hollingsworlh vs. Floyd, 2 .//. & G., 81. Oreager vs. Brengle, 5 II. & J., 234. Ghiselin vs. Fergnsson, 4 II. cc J., 522. Ilampson vs. Edelin, 2 II & J., 46. Hopkins vs. Skimp, 2 II. de J., 301. Welsh vs. Parran, 2 Gill, 320. Ringgold, vs. Bryan, 3 Md. Gh: Dec., 488. Repp vs. Repp, 12 G. d: J., 341. Campbell vs. Lowe, 9 Md. Rep., 500. Marlin vs. Martin, 1 Md. Rep., 368. Grove vs. Brien, 1 Md. Rep., 438. Burl:, vs. Chrisman, 3 B. Munroe, 50.
    2. That the paramount equitable title to the said real estate being in tlie complainants, and the legal title in the Isaacs, the children of Joseph Isaac, who are now of full age, having ratified the sale made by their father, and consented to execute a deed for the said real estate to whomever may be entitled to receive it, this Court properly decreed the execution of the conveyance in foe of the said real estate to the complainants. Sanders vs'. Bamipson, 2 H. & J., 81. Ilampson vs. Edelin, 2 II. rfi J., 64. llaf/her vs. Dickson, 2 TI. d: J'., 46. Ford vs. Philpol, 5 IF. &J., 316. Graham vs. Graham, 6 II. ds J., 229.
    3. That the complainants had no remedy at law while the outstanding legal title was in Joseph Isaac and his children, and hence this Court properly entertained jurisdiction in the case, to grant them equitable relief, by decreeing a conveyance of tbe legal estate in fee to them. Ford vs. Philpol, 5 II. & J., 316. Garrroll vs. Norwood, 5 H. & J., 155. Act of 1825, ch. 103.
    4. That Joseph Isaac,, the vendor, never having parted with the legal title, the purchase of Joseph J. Jones, under the judgment for the purchase money due the vendor, will have priority over the purchaser under any other judgment obtained against the vendee, and consequently, tbe Court was right in passing the decree. 2 Story’s Eq. Jur., sec. 3216, note 4, secs. 1219, 1225, 1228. Finch vs. Earl of 
      
      Winchelsea,1 P. W., 278. Maclerethvs. Symmons, 15 Ves., 345. 4 Kent’s Com., sec. 58, p: 154, (2nd Ed.) Bayleyvs. Greenleaf, 7 Wheat., 56. Aldridge vs. Dunn, 7 Black., 249, 250. Green vs. Fowler & Leighton, 11 G. <& J., 103. Wright vs. Woodland & Wife, 10 G. & J., 387. Shirras vs. Gaig, 7 Gr'anch, 34. Fita Simmons vs. Ogden, 7 Granch, 2. Vattier vs. Hinde, 7 Peters, 252. Mackreth vs. Symmons, 1 White & Tudor’s Le. Ca., 220, 247, 251.
    5. Upon the appeal prayed by the complainants in the original bill against Richard D. Hall, but one question arises, and that is, whether the Court below having entertained jurisdiction and decreed a conveyance of the legal estate, it can properly order the bill to be dismissed against Richard D. Hall, and refuse to decree the possession to be delivered to the complainants? It will be argued, that the Court below having rightfully entertained jurisdiction of the cause, and extended to the complainants equitable relief by decreeing a conveyance of the legal title, the decree should have gone further, and given them full relief by ordering the possession of the said real estate to be given them by the said Richard D. Hall, without forcing, them to go to a Court of law there to litigate their rights. Ford vs: Philpot, 5 H. & J., 316. Tongue vs. Morton, 6 H. & J., 21. Whiting’s Heirs vs. Taylor’s Heirs, 8 Dana, 409. ■Cathcart vs. Bobinson, 5 Peter, 263. Oldham vs. Jones, 5 B. Munroe, 458. Irvine vs. McBea, 5 Hump., 554.
   Goldsborough, J.,

delivered the opinion of this Court:

On the first of January 1843, Joseph Isaac one of the defendants to the bill, filed in this case, sold to one Jacob T. Hall the land in controversy for seven hundred dollars. The land had descended in fee-simple to the children of Isaac, as the heirs at law of their mother; he being tenant by the curtesy. His children, with one exception, were minors at the time of the sale. When Hall purchased, he gave his note to Isaac for the $700, with Joseph J. Jones as surety. The purchase money was to be paid in ’ilscir usual instalments. At the time when the first instalment became due, Hall paid it; failing to pay the others, Isaac brought suit on the note, and at April term 1848, of the County Court of Prince George’s County, obtained judgment for the balance of the claim. An appeal was taken from this judgment, and it was affirmed by the Court of Appeals. A fiéri facias was issued, by virtue of which, the equitable estate of Hall was taken in execution, and subsequently sold to Jones, Hall’s surety, who paid the purchase money due on the execution.

At the time of the purchase made by Jacob Hall, Isaac gave to him a receipt for the §100, the instrument containing this receipt, purporting also t© he a bond of conveyance though not under seal. By this paper writing, Isaac bound himself, bis heirs, &c., to convey or cause to be conveyed by himself and his children, all their right and title to the land above mentioned, under the penalty of one thousand dollars.

Subsequently to the purchase by Jones from the sheriff, he died without obtaining a legal title from Isaac. And this, bill was filed by the appellees, his heirs at law, to obtain this title. The children of Isaac having arrived at full age were made defendants, answered the bill, and expressed their willingness to convey the land as the Court might direct.

At the time when Isaac obtained his judgment against Jacob Hall and Joseph Jones in 1848, 'William H. Tuck, administrator of Sarah Slater, had an outstanding judgment rendered in 1846, against Jacob Plall; on this judgment execution was issued and levied on the equitable interest of Jacob Hall, and being offered for sale under Tuck’s execution, it was purchased by Richard D. Hall, the appellant, and he took possession of the land.

In addition to the prayer of the complainants for a legal title, they also pray that Richard D. Hall, who was made a defendánt, may he decreed to deliver to them the possession of the property. The Circuit Court passed a decree directing-Joseph Isaac and his children to execute a conveyance of the legal title to the complainants. From this portion of the decree the appeal under consideration was taken.

The appellees claim the title to the property because their father having been the surety of Jacob Hall, and having become the purchaser of Hall’s equitable estate under the judgment and execution and sale of Hall’s interest, had paid to Isaac, the vendor, the balance of the purchase money. The appellant Richard D. Hall claims it because the purchaser, Jacob Hall, had paid one-third of the purchase money to Isaac, thereby creating, to that extent, such an equitable estate as would be liable to execution under the Act of 1810, ch. 160: and he, Richard, having purchased the same under a senior judgment then outstanding against Jacob Hall, Richard Hall alleges he is entitled to hold the land by virtue of lvis purchase.

At the time of filing the bill, the children of Joseph Isaac had arrived at full age, and being made defendants, answered the bill, and say: “they are now, and have ever-been ready and willing to execute a deed and convey the land to such person or parties as your honorable Court might direct, having determined to whom the title now resting in your respondents of right belongs.”

This confirmation of the sale made by Joseph Isaac, the father, must be held to relate back to the sale to Jacob Hall at the time he made the purchase, and in the disposition of this case, the ratification of the sale by the children has the same effect as if they had been of full age and were parties to the contract of sale made by their father, and will enure to the benefit of the party now entitled under the original vendee.

It is contended by the appellees that Isaac, the vendor, did not waive his lien for the pnpaid part of the purchase money, conceding this, it is proper to consider what that lien is. In the case of Smith vs. Gage, decided by the Supreme Court of New York, and cited in 2 Am. Law. Reg., (new series,) 438, itis said:' “From thetime of making a contractfor the sale of land, and until payment, the vendor has a mere lieu on the land for the purchase money; the interest of the vendor in such contract is not real estate, but only personal estate; and'in case of the vendor’s death, the unpaid purchase money is treated as only personal estate, and goes not to his heirs, but to his personal representatives.”

If Isaac thus had a lien on the land for the purchase money or for such part thereof an remained unpaid, and instead of pursuing his remedy in equity, prosecuted an action at law against Jacob Hall and Jones his surety, on the note given by them, obtained a judgment, levied an execution on Jacob Hall’s equitable estate, sold the same under the execution, and Jones became the purchaser under this judicial sale, the vendor’s lien was thereby extinguished, and Jones bought, like any other purchaser, upon the principle of caveat emptor, subject to any outstanding judgment or lien existing against Jacob Hall. This ex-tinguishment of the vendor’s lien, entirely excludes Jones’ right of subrogation, so earnestly pressed upon our consideration.

In the case of Richardson vs. Stillinger, 12 G. & J., 477, this Court said: “Such a seizure and sale could only transfer the interest of the vendee, at the date of the judgment, or of the issuing or levy of the attachment, and would be subject to all judgments, liens or outstanding equities, existing against the vendee anterior to that time.” The result therefore, is, that Jones or his heirs can claim only the legal title under a junior judgment and senior execution, while Richard D. Hall claims the same under a senior judgment though junior execution.

When therefore Jones suffered Isaac the vendor to enforce his judgment by execution and sale of Jacob Hall’s interest and became the purchaser, he stood in no better condition than any other purchaser who should purchase subject to any prior lien binding on the land, and would be affected by the rule recognized in the case of Miller vs. Allison & others, 8 G. & J., 35, where it is said: “Should a fieri facias on a junior judgment be levied on an equitable interest in the hands of the debtor, and subsequently a fieri facias on a senior judgment comes to the hands of the sheriff, the senior judgment must first be satisfied.” Esc consequenti, the purchaser under the senior judgment would be entitled to hold the land under his purchase in preference to the purchaser under the junior judgment. It follows that this Court must recognize the superior title of Richard D. Hall.

(Decided June 1st, 1864.)

That portion of the decree which directs Joseph Isaac, and the other parties named therein, to convey to the complainants the legal title to the property involved in this suit, must be reversed and the bill dismissed, and this Court will sign a decree to that effect; also direct in the decree-that the deed executed in conformity with the decree of the-Circuit Court, be rescinded, and that Joseph Isaac and his-children execute a deed conveying the legal title to said property to Richard D. Hall and his heirs.

The Circuit Court having decreed that the bill be dismissed as to Richard D. Hall, and the complainants having appealed from this portion of the decree, it follows from the reasons assigned by us in the case of Richard D. Hall & others, vs. Luther D. Jones & others, that this portion of the decree must be affirmed.

Recree reversed in part and affirmed in part, and bill dismissed.  