
    William Neil v. John M. Kinney et al.
    W. purchased of R. and paid for a town lot, the title being held by J. the wife of R. It was agreed that R. should sell the lot for W. and that tie title should be conveyed by R. & J. to the purchaser when sold. R. contracted with K. & B. to sell the lot to them, took their notes for the purchase money and gave them possession, April, 1855. Mechanics employed by K. & B proceeded to erect a building on the lot, and respectively perfected their liens under the statute. R. & J. conveyed the lot by deed of Oct. 5 (recorded Dee. 22), to K. <£sB. who, Oct. 13, executed a mortgage left for record Nov 1, to secure the notes for the purchase money. It did not appear that the mechanics had any notice as to the title. The notes and mortgage were afterward transferred to W. who brought suit against K. & B., making the mechanics parties. Held,
    1. That the vendor’s lien arose at the time of sale by contract and giving possession.
    2. That the lien was not impaired either by the deed or mortgage.
    3. That the lot and purchase money having respectively belonged in equity to. W., the vendor’s lien, also, as an incident, in equity, belonged to him, both before'and after the transfer and delivery to him of the notes and mortgage
    4. The mechanics’ liens at their inception -were liens only upon the estate or interest of K. & B., and necessarily subject to any prior liens upon the same lot.
    This is a petition in error filed in the district court of Franklin county, to reverse a judgment of the court of common pleas, and reserved for decision in the supreme court.
    In September, 1854, Jane M/Neil, wife of Robert Neil, held the legal title to inlot, No. 441, in the city of Columbus, called the “theater lot;” at which time Robert purchased from his father, William Neil, the plaintiff, a house and lot on Third street, in said city of Columbus, and gave him in part payment therefor said inlot, 441.
    William executed a deed to Robert for the property on Third street, at once, but it was agreed between William and Robert and Jane, as a matter of convenience to William, who was about leaving home for a long absence, that the title to inlot, 441, should remain in Jane until William, or Robert for him, could effect a sale of it, when Robert and Jane should convey directly to the purchaser.
    In a few days after this arrangement, William Neil went to. the city of New York, where he remained about a year.
    
      In the spring of 1855, Robert Neil received from the defendants, Kinney and Burnell, an offer of $8,000 for the property, of which he, by letter, notified William Neil, then in the city of New York, who replied directing him to sell.
    Afterward, on the 25th day of April, 1855, Robert and Jane his wife, entered into a contract with Kinney and Burnell for the sale of the property, whereby it was agreed that within six months thereafter Robert and Jane should convey the same to Kinney and Burnell, who were to make some improvements, and, at the same time, Robert informed Kinney that the property actually belonged to his father, William Neil, which fact was also generally known. Whereupon Kinney and Burnell executed to Jane the notes in the petition set forth, bearing date April 25,1855, for the purchase money, took possession of the property under said contract of sale, and erected a theater building thereon; and, afterward, the-mechanics employed in the construction of the theater effected mechanics’ liens upon the property.
    Afterward, on the 5th day of October, 1855, in pursuance of said contract of sale, Robert and Jane executed to Kinney and Burnell a deed for the property, which was recorded on the 22nd day of December, 1855, and on the 18th day of October, 1855, Kinney and Burnell executed to Jane a mortgage to secure their notes for the purchase money in the petition set forth, dated April 25, 1855, which was delivered for record and recorded on the 1st day of November, 1855.
    Afterward, upon the return of William Neil, the notes and mortgage were given up to him by Robert and Jane, she indorsing the notes, as they were payable to her order, in the presence and by consent of Robert.
    Afterward, on the 7th day of February, 1856, one of the-notes having become due, William Neil brought suit in the court of common pleas to foreclose the mortgage and sell the-property; making the holders of the mechanics’ liens defendants.
    At the March term, 1856, the cause was referred to a master to report the amount and priority of the several liens, andr afterward, at the same term, the master having filed his report, judgment was rendered upon the notes in favor of the plaintiff against the defendants, Kinney and Burnell, and an order made for the sale of the property.
    On the 31st day of May, 1856, Kinney and Burnell perfected an appeal to the district court, from the judgment of the court of common pleas.
    At the January term, 1857, of the district court, the cause was referred to a master to report the nature, amount, and priority of the several liens, together with the evidence thereof, and all testimony that might be taken before him.
    Thereupon, at the same term, the master filed his report, setting forth the liens and the evidence taken before him, and stating several of the mechanics’ liens as prior to the lien of the plaintiff, to which the plaintiff excepted, “because the master reported the mechanic liens of the defendants, Gates O’Harra, Hyde & Schlapp, Jonathan Nereamer, St. Clair & Fitzwater, Jones & Hughes, P. B. Doddridge and John Kennedy, as valid liens prior to the lien of the plaintiff.”
    It appears from the master’s report that the liens of the defendants took effect at the times following, being the date of the commencement of their work (all in the year 1855), to-wit: O’Harra, May 15; Hyde & Schlapp, June 7; Nereamer, June 8; St. Clair & Fitzwater, August 2; Jones & Hughes, August 6; Doddridge, October 13; Kennedy, October, 31.
    All these dates, except the last two, are prior to the execution of the deed to Kinney and Burnell. The deed was executed October 5, 1855, and recorded December 22, 1855. The mortgage was executed October 13, 1855, and filed for record and recorded November 1, 1855.
    Thereupon the district court, without passing upon the exceptions to the master’s report, rendered judgment upon the notes, in favor of the plaintiff against said Kinney and Burnell, and ordered the sheriff to sell the property and return his proceedings, with the proceeds of sale, to the court of common pleas, and remanded the cause to that court to carry the judgment into effect, and for such further proceedings as might be necessary in the distribution of the proceeds of sale.
    
      At the March term, 1857, of the court of common pleas, the cause was heard upon the exceptions to the master’s report, and the court overruled the exceptions of the plaintiff as to all the liens mentioned therein, except that of Hyde & Schlapp, and ordered that the liens of the several parties, except Hyde & Schlapp, should be paid from the proceeds of sale in the order in which the same are stated in the master’s report; to which ruling the plaintiff excepted; and on the 15th day of March, 1858, filed a petition in error in the district court, by which court the case was reserved to this court for decision.
    The plaintiff claims that the court below erred in overruling the exceptions to the master’s report, and ordering the mechanics’ liens above named to be paid before that of the plaintiff: •
    1. Because none of said liens are prior to the lien of the plaintiff. •
    2. Because the claims of Hyde & Schlapp, and Nereamer, and Doddridge are not liens at all.
    
      James A. Wilcox for plaintiff.
    As the mortgage did not take effect until the date of its filing, November 1, 1855, some time subsequent to the date of the commencement of the labor of the defendants, the master reported, and the defendants now claim that the lien of the plaintiff is subsequent to that of the defendants, under the provisions of section 7 of the mechanics’ lien law. Swan’s Stat. 551, 554. Thus placing the plaintiff in the position of an ordinary assignee or purchaser of the notes and mortgage from Jane M. Neil, the vendor of the property, with no rights or equities except those acquired under the mortgage.
    The plaintiff, however, claims that he is not the mere assignee of the vendor, but is, in equity, himself the vendor, having a valid vendor’s lien for the purchase money.
    It is settled, in Ohio, that a vendor’s lien for unpaid purchase money is good, and is not extinguished by taking a mortgage upon the property, nor postponed to judgment liens, but is entitled to a preference over all later rights, except those of a purchaser without notice. 2 Ohio Rep. 383; 7 Ohio Rep. (part 1), 225; 17 Ohio Rep. 500-519.
    It can not be denied that if Robert and Jane Neil, as vendors and actual owners, were prosecuting this action, their lien as vendors would be paramount to the lien of the defendants under the decision in 17 Ohio Rep. 500.
    But the defendants claim that the plaintiff is not the vendor, but the assignee of the vendor, and, as a vendor’s lien is a mere personal right and not assignable, that the plaintiff can claim nothing beyond his bare rights under the mortgage. Do the facts justify such a conclusion ? will equity place the plaintiff in this position ?
    The sole object of a vendor’s lien is to protect the owner so that the property of one man may not be taken from him to satisfy another’s debt without compensation.
    The plaintiff was, in fact, the actual and sole owner of the property; he had paid full value for it, but for convenience left the title in Jane, who held it as his trustee, and as his agent sold and conveyed to Kinney in accordance with the express directions of the plaintiff; and upon the plaintiff’s return, she gave up the notes and mortgage to him as his own property, to which neither she nor her husband had or pretended to have any right whatever.
    It was in no sense an assignment or sale; but merely the surrender to the plaintiff, by his agent, Jane, of that which actually belonged to him, under the agreement made between them when the plaintiff bought the property and paid for it by the transfer of the Third-street premises. The plaintiff was the principal and the real vendor through his agents Robert and Jane, and the vendees knew it when they purchased.
    Kinney and Burnell, then, purchased and took possession of the plaintiff’s property by virtue of a contract of sale made with Robert and Jane acting as the plaintiff’s agents, and while they were thus in possession, the liens of the defendants attached. To what did they attach ? Manifestly, to the interest of Kinney and Burnell in the property, whatever that was, and nothing more; and that subject to all prior equities and bona fide liens. 2 Ohio St. Rep. 114-126.
    Under the contract of sale, Kinney and Burnell had an equitable interest in the property, subject to, and dependent upon the payment of their notes for the purchase money, which notes belonged to the plaintiff, and were held by Jane, together with the legal title, as the trustees of the parties. And it can not be denied that at this time, before the mechanics had commenced their labor, the plaintiff was entitled to a surrender of the contract of sale together with the legal title, from his agents Robert and Jane, and thus to obtain all the rights and benefits arising from the contract.
    To this equitable interest of Kinney and Burnell, thus contingent upon the payment of the purchase money due to the plaintiff, and liable to be forfeited by the nonpayment thereof, the mechanic liens fastened, subject of course to the same-contingency that the interest itself was liable to. The holders of these liens could certainly have no greater or better claim upon the property than Kinney and Burnell had. It is only through Kinney and Burnell that the liens can be asserted at all, and they could claim no right or title whatever, except subject to the payment of the purchase money.
    If Robert and Jane were the owners, it could not be denied that they would have a valid vendor’s lien, which, under the decision in 17 Ohio Rep. 500, would continue paramount down to the time when the mortgage took effect. We can see no reason why the plaintiff, as owner, is not entitled to the same right. It is for the protection of the owner alone that the vendor’s lien is recognized. 2 Ohio Rep. 383-386. In the present case the plaintiff being the owner, through his agents, sold his equitable title to the property, and retains a lien for the consideration in the same manner that a vendor of the legal title under the same circumstances would have an equitable lien. 3 J. J. Marsh. 178; 7 J. J. Marsh. 249.
    It may be contended that it does not appear that the contract between the plaintiff and Robert and Jane, for the sale of the theater lot to the plaintiff, was in writing, and there fore, that the contract is void under the statutes of frauds.
    
      When it does not appear that such a contract was not in writing, the legal presumption is that it was a written contract. 3 J. J. Marsh, 178, 179.
    Rut even if the agreement was a verbal one, the contract of sale to Kinney and Burnell having been made in pursuance thereof, and by the express direction of the plaintiff, the agreement between him and Robert and Jane was thus carried into effect and consummated, which would take the case entirely out of the statute of frauds by reason of the full performance of the agreement; and beside, the statute of frauds is for the protection of vendors alone, and not of adversary claimants. The vendor can not be compelled to set it up, and if he is willing to execute, the court will not interfere. 6 Dana, 194; 5 J. J. Marsh. 380-382; 18 Pick. 369, 372.
    As, therefore, the statutes of frauds does not in any way interfere with the agreement between the plaintiff and Robert and Jane, the plaintiff, although never possessed of the legal title, holds a vendor’s lien. 1 Texas Rep. 326-330. This question also came up in the case of Bayley v. Greenleaf, 7 Wheat. 46-50; but was not decided, there being some difference of opinion.
    It may be said, that the plaintiff seeks to enforce a secret equity arising from his private agreement with Robert and Jane, of which the defendants had and could have had no notice. The defendants were bound to know and take notice of the actual condition of the title, and upon examination they would have discovered that the legal title was in Jane; that Kinney and Burnell had purchased from her by title bond, and had given their notes for the purchase money, running for three years; they would, therefore, have full notice that the purchase money was unpaid and was not to be paid for three years; that some one held a lien on the property for it, and, so far as the records disclosed the title, that Jane was the holder of that lien. Now, it seems absolutely immaterial, so far as the mere matter of notice is concerned, whether Jane or any one else was, in fact, entitled to the purchase money and the lien for its payment.
    
      The defendants were bound to know, and did know, when they commenced their labor on the property, that the purchase money was unpaid, and supposed that Jane, as the holder of the legal title, also held a lien for the payment of the purchase money. They chose to run the risk of this lien, and furnished their labor subject to it. Now, what possible difference can it make with their rights, or in what worse condition could it place them, that the plaintiff, and not Jane, was, in fact, entitled to the benefit of this lien; the mere difference in the person entitled to the benefit of the lien certainly could not in the least change their rights, so long as they had full notice that the lien itself was outstanding.
    It is the lien that affects their rights, and not the name or sex of the holder of it. The mere fact that Kinney and Burnell held by title bond conditioned for the payment of the purchase money, was sufficient to charge the defendants with notice, and put them upon inquiry as to the facts, even if they had been purchasers. Bradford v. Harper, 25 Ala. Rep 337. In the present case there is no question as to purchasers without notice. It is a mere question as to priority of liens, and notice is immaterial. Each lien attaches according to its date, subject to the rule “ qui prior est in tempore potior est in jure.”
    
    
      R. B. Warden for defendants.
    On the authority of the cases cited by the plaintiff, and particularly of Brush et al. v. Kinsley et al., 14 Ohio Rep. 20, we insist that this plaintiff never had a vendor’s lien as against the defendant Kinney, and a fortiori, that he never acquired one as against the holders of mechanic’s liens.
    The language of Judge Read, in Brush et al. v. Kinsley et al., supra, is consistent with the since decided cases, and his doctrine well accords with our Ohio policy as to the subject matter. Secret liens, or rather liens not solemnly and publicly manifested, can not be regarded with much favor in Ohio.
    It is apparent that the vendor here impliedly permitted the mechanics to acquire an interest by lien inconsistent with his purpose to insist upon his lien as a vendor. Therefore there has been a waiver of the vendor’s lien. That there may be such a waiver is apparent. See the cases cited by the plaintiff.
   Sutlirf, J.

The defendants in the case derive their rights as lienholders under the “ act to create a lien in favor of mechanics and others in certain cases,” passed March 11, 1843, and the amendment thereto of March 25, 1851, 2 Curwen Stat. 964, 1666.

The act of 1843 seems to have substantially followed that of the State of Pennsylvania upon the same subject, as revised by their legislature in 1836. That State seems to have originated their beneficent statute in a spirit of kindness toward the operative, and by a series of local statutes, originating with the act of 1784, in favor of shipbuilders at Philadelphia ; but the defects of prior acts were not fully removed until the revised act of 1836. In that State it had, previously to 1840, been frequently decided that the builder’s lien given by their statute was one which, without reference, as a general rule, to the particular estate of the person in possession, bound the fee simple in the land. But by an act of the legislature of that State, in 1840, those decisions were swept away, and the lien restricted to the estate of the person in possession at the commencement of the building.

Our act having been passed subsequent to this legislative construction, by ■ that State, of their mechanics’ lien act of 1836, has received the same construction judicially, in this :State, as the legislative construction so given by that State.

The lien acquired under our act of 1843, must, therefore, necessarily be subject or subordinate to all existing liens at the time of its accruing.

It was held by the supreme court of this State, at the December term, 1826, that the vendor has a lien upon the lands sold for the purchase money, although personal security may have been given for the payment; and that such a lien of the vendor, where the legal title remained in the vendor, would pass to the devisee of the debt, so due, as purchase money, Tiernan v. Beam and others, 2 Ohio Rep. 383. This case doubtless .expresses the true extent to which the vendor’s equity passes, as an incident with the debt, for its security, into the hands of a third person. And although it may be difficult to reconcile the ease with the previous holding of the same court (Jackman v. Halleck, 1 Ohio Rep. 318), it seems to rest upon undoubted general principles of equity. The vendor having contracted to sell the land, and to convey the same to the vendee upon receiving the purchase money, he has the right to retain the title until the vendee shall have paid the same. And the vendor may properly be said to hold the title in trust for the vendee, upon condition of his so paying the purchase money, according to the terms of their contract. Nor can it, in reason or law, make any difference that the amount of the purchase ■ money, to be paid by the vendee, is expressed by promissory notes, instead of by the contract between the parties, so long as the title remains in the vendor. Whether the notes be transferred by the vendor in his lifetime, or to his devisee by will; in neither case would the vendee or his assignee seem to be entitled to a conveyance of the title, until payment of the purchase money. And in such cases, doubtless, the vendor in his lifetime, and his executor in case of the devisee, would continue to hold the title for the same purposes, and on the same condition, in trust, as before held by the vendor.

But where the vendor, previous to receiving the purchase money, instead of retaining the title until full payment, conveys the land to the vendee, the case is quite different, in regard to third persons. As between the vendor and vendee, the vendor has only a lion upon the land for the unpaid purchase money. And in such a case the lien continues until payment, or release, although the vendor may, subsequently to its inception, have taken a mortgage upon the premises from the vendee to secure the same debt. See Boos v. Ewing et al., 17 Ohio Rep. 500.

But this lien of the vendor being a personal, right does not attach, and pass with the claim, as an incident, when sold and assigned by the vendor. And under this admitted rule of law, it is insisted, in this ease, that the plaintiff did not acquire the vendor’s lien by the transfer to him of the notes and mortgage; but only acquired a mortgage lien, by virtue of the tranfer of the notes and mortgage to him by the payees and mortgagees of the same. In such case, although, at the inception of the mechanics’ lien accruing prior to the 5th of October, 1855, the liens only rested upon the interest of Kinney and Burnell, acquired by their contract of purchase, and were clearly subject to the prior vendor’s lien, yet if the ven dor’s lien were lost by the transfer of the note and mortgage, as between the plaintiff’s and the mechanics’ liens, from the 5th of October, 1855, until November 1, 1855, the time of recording the mortgage, the mechanics’ liens so having then accrued and resting upon all the estate of Kinney and Burnell, who so received the fee of the land on the 5th of October, would be the only liens; and the mortgage not taking effect until delivered for record (November 1,1855), it would follow that the plaintiff’s lien upon the lots, for the payment of said notes, being only by force of the mortgage, commencing at the time of its delivery for record, was subsequent and subject to the mechanics’ liens.

The only question therefore to be settled, in order to determine whether the plaintiff’s lien is, or is not, superior to the mechanics’ liens, is, was or was not the plaintiff, under the facts of the case, entitled to the vendor’s lien upon the lot.

What, then, is a vendor’s lien, its nature and extent as applicable to this case ? A lien is, strictly speaking, said to be, neither a jus in re, nor a jus ad rem, but simply the right to possess and retain property'until some charge, justly attaching to it, is paid or discharged. The vendor’s lien upon the land sold, for the purchase money, is an equitable right arising from a constructive trust, and is independent of the possession of the land to which the lien attaches as an incumbrance; and the same maybe enforced in courts of equity by a sale of the land.

The doctrine is thus expressed by Sugden (Ch. 18, sec. 1): Where a vendor delivers possession of an estate to a purchaser, without receiving the purchase money, equity, whether the estate be, or be not conveyed, and although there was not any special agreement for that purpose, and whether the estate be freehold or copyhold, gives the vendor a lien on the lana for the money.”

Upon these principles, courts of equity have always pro ceeded to establish this lien in the nature of a trust; holding that a person who has obtained the estate of another, ought not to be allowed to retain it without paying therefor the consideration money. The vendee, therefore, having so obtained the estate, becomes a trustee for the vendor to the full extent of his unpaid purchase money, until such lien be discharged or released.

How, then, stand the parties in this case with respect to the vendor’s lien for the purchase money?

It is conceded that in September, 1854, William Neil had purchased and paid for inlot No. 441, and that Robert Neil and Jane Neil thereafter held the same in trust for him; and that they, in the execution of such trust, bargained and sold, and finally conveyed the lot for him and at his request to Kinney and Burnell. Upon receiving their deed, on the 5th of October, 1855, it is evident that the grantees, to the extent of the unpaid purchase money, held the same in trust for the vendor to whom such purchase money remained unpaid. The only question, then, remaining is, to whom did the lot and purchase money belong ? It is said by the defendants that they must necessarily be regarded as belonging to Robert and Jane Neil, who had conveyed, and to whom the notes had been given for the purchase money. True, they held the legal title to the land, and were the payees of the notes; but their relation to the property sold, we apprehend, under this state of facts, differed in nothing from that of a guardian, who might have sold, in the execution of his fiduciary trust, the lands of his ward, and received notes for the purchase money payable to himself, after conveyance made to the vendee; and who had delivered the notes to his ward upon his arriving at the age of majority. The lien being merely an equitable right, would necessarily arise in favor of the party to whom the property, the land and its price in equity belonged.

No objection to the execution of the trust by Robert Neil or Jane his wife, was made in the ease, and the trust has, on theii part, been fully executed. Their acts, in selling and conveying the lot, and receiving the notes and mortgage, and transferring the same to William Neil, must, therefore, be regarded as the mere acts of trustees or agents for their principal, William Neil, the real owner in equity.

It is insisted, by counsel, in favor of the mechanics’ liens, that the record does not show that they had any notice of the state of the title, and that by reason of this fact, and the transfer of the notes to the plaintiff, they thereby acquired a priority to the plaintiff’s right to enforce his lien for the purchase money. It is true the record does not show any actual notice; and for that reason and the fact that they do not pretend to have known of the execution of the deed until after the recording of the mortgage, it does not appear that those whose liens originated after the execution of the deed and before the record of the mortgage, were thereby at all prejudiced. It does not appear, therefore, that by the act of giving the deed, the mechanics were thereby misled to give mistaken confidence to the title, and induced to regard the vendor’s lien as discharged, by reason of the mortgage having not been then taken and put on record. No such question is presented by the record; and for that reason it is unnecessary for us here to express any opinion upon such a state of facts.

The equitable right of the vendor’s lien must, therefore, under the existing state of facts, be regarded as having, from its inception at the time of the sale, belonged to William Neil; and as still remaining in full force.

We, therefore, think that the court of common pleas erred in holding that the plaintiff’s lien for the amount of the judgment for the purchase money was not superior to the mechanics’ liens. And for this cause the judgment of that court must be reversed; and judgment will be entered in this court accordingly.

Brinkerhoff, C.J., and Scott, Peck, and Gholson, JJ., concurred.  