
    Phillip Hoggatt vs. Benjamin Wade et al.
    M. as administrator of R. M., deceased, had sold a tract of land to G. and taken his notes, with surety, for payment, and had retained the statutory lien upon the premises, as further security. G. became insolvent, leaving one of the notes unpaid, and M. having exhausted his remedy at law, was proceeding to enforce his statutory lien against the land. W. had purchased the land of G. and given his notes therefor, one of which had been transferred to H. who had brought suit upon it; the deed from M. to G. showed that the land was sold by him, as administrator, under an order of the probate court, and that a portion of the purchase-money had not become due at the time G. sold to W. Held, that W. was justly chargeable with notice, and could occupy no better place than G., and that M. had a right to priority of satisfaction.
    It is the duty of an administrator, when he sells the land of his intestate, to take personal security for the payment of the purchase-money, and his performance or non-performance of that duty does not affect the statutory lien; each is intended to be cumulative. Whether anything short of actual payment will discharge the lien,— Qutzre?
    
    M. as administrator of R. M., deceased, sold a tract of land to G. and B., and took the separate notes of each, with personal security, for their respective halves of the purchase-money. Held, that there was nothing in this transaction which could release the statutory lien.
    The statutory lien is for the benefit of the estate, and the administrator ought not, by construction, to be held to have done anything to its prejudice.
    Appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    Benjamin Wade filed a bill of interpleáder, in which he states, that in December, 1835, he became the purchaser of the undivided half of certain lots in Natchez, from H. Gridley, for $8,500. He gave three notes, the last of which for $2,833.33, is now due and unpaid. P. Hoggatt, the owner of the note, brought suit upon it in the Adams circuit court. These lots were .purchased originally by Horace Gridley and John Bailey, at the sale of Robert Moore’s estate by A. P. Merrill, his administrator, • under an order of the probate court for the sum of $13,892, for which Gridley and Bailey “executed their obligations in three several instalments, for their portions or parts respectively.” That, of Gridley’s part, there is still due $2,925.96, for which Merrill has obtained judgment for $2,393.96. Merrill being unable to collect from Gridley, threatened to enforce a statutory lien on the lots, and instructed his solicitors to file a bill of foreclosure. He avers, that he had no notice of any such claim or lien till lately, and long after his purchase; is willing to pay, but does not know to whom he can safely pay his note, &c., prays that Merrill and Hoggatt in-terplead, and for the usual injunctions and relief. His amended bill alleges that Gridley is insolvent, and no recovery could be ■had on his deed.
    Hoggatt’s answer states that he has no personal knowledge of the matters set forth in Wade’s bill. That he is the owner of the note in question and took it in the ordinary course of business. That Merrill, the administrator of Moore, when he sold the lots, waived all statutory liens, by taking other and different security than that required by law; the lots were sold at the administrator’s sale to Gridley and Bailey, as tenants in common, as will appear by Merrill’s deed to them. That Merrill did not take from Gridley and Bailey, bonds with security according to law, or if he did, they had been discharged, so that no lien exists, and he prays that Merrill be enjoined from attempting to enforce it. That Bailey is dead, having ample means to satisfy Merrill’s claim, if he had taken his bonds jointly with Gridley, according to law, and, the same would have been paid. Insists that Wade holds the land discharged of the lien, having had no actual notice, and the constructive one was from the deed, which was, that Merrill had taken the joint bonds of Gridley and Bailey, with good security, and if he had done so the debt would have been paid. Insists that Merrill had misled subsequent purchasers, by keeping the lien out of view, and by taking security contrary to law, and leaving out parties to the contract on the notes, who were parties to' the purchase, and who were able to pay the debt without resorting to the lien, so that he (Merrill) has forfeited the lien as to bona fide purchasers without notice, and he ought to be the loser.
    Merrill’s answer admits the allegations in Wade’s bill, except as modified in his interpleader with Hoggatt. He there states, that in pursuance of an order of the probate court, he sold, on the 23d, 24th, 25th and 26th of December, 1833, all the estate of R. Moore. That Gridley purchased two of the lots for $13,892; the terms of sale were openly and publicly proclaimed at the time, and were, that the purchaser should give personal security, and a mortgage on the property, and the credit on the land to be one, two and three years. After the sale, Gridley told him that Bailey had agreed to become jointly interested in the purchase, and he offered Bailey’s notes for half of the purchase-money, and requested the deed to be made to them jointly, which was done, as Bailey was considered to be worth more than Gridley. He took three notes from Gridley, and three from Bailey, with indorsers to his satisfaction. That it was agreed between him, and Gridley and Bailey, that they should execute a mortgage to secure said notes according to the terms-of sale, but this idea was given up in order to save expense and after advice of counsel, that the statutes gave a mortgage or lien. Of this he informed Gridley and Bailey, and has never in any way waived the lien. Bailey’s notes had been paid, and the first two of Gridley’s. On the last, he has a judgment for $2,393.96, and he has had Gridley’s property sold under execution, and the proceeds had been applied to older executions. Gridley is wholly insolvent, and the judgment is unsatisfied, and will' remain so, unless he can enforce his lien.
    The deed from Merrill to Gridley and Bailey recites a sale to them-jointly, and states the consideration to be $13,892, secured to be paid in three annual instalments, according to the tenor of the order of the probate court.
    It being agreed that all objections to the propriety of the in-terpleader should be waived, and that the chancellor should proceed to decide the case fully on the merits, it was decreed: That Wade should pay Jo A. P. Merrill, the said sum of $2,953.71, with interest thereon from the date of the decree, and that he should pay the remaining sum of $705.09 to 'Hog-gatt, with interest from the date of the decree, and that Hoggatt should be perpetually enjoined from further proceeding to collect and enforce the payment of the residue of said note of $2,833.33. Hoggatt appealed.
    
      Montgomery and Boyd for appellants,
    contended,
    1. That Merrill's executing the deed jointly to Gridley and Bailey, and taking their notes separately for their respective portions, was a waiver of the statutory mortgage, as Merrill thereby misled and deceived subsequent purchasers of the property, who would have good reason to suppose that Bailey was a party to all the notes. 18 Johns. R. 544; 7 Cranch, 50.
    2. That there was nothing of record to give notice of the statutory lien to secure the note of Gridley individually; nothing to connect it with the land; and that Hoggatt, being a bona fide purchaser of the note, without notice of the lien, cannot be aifected by the latent equity in favor of Merrill, whose laches and negligence in giving the deed jointly, and taking the notes separately, by misleading Hoggatt produced the loss, and he, therefore, ought to be the sufferer, and not Hoggatt.
    3. That the facts of the case'proved a waiver of the lien by Merrill, who, notwithstanding his fiduciary character, would be held in equity to have postponed his statutory mortgage to the rights of a bona fide holder, without notice of the note. 1 Powell on Mort. 528, 529, and notes; lb. 531; 1 P. Wms. 279; 18 Johns. R. 544; 1 Johns. Oh. R. 288.
    Mandeville, for appellee,
    insisted,
    1. That Merrill had not lost his statutory lien by taking notes instead of bonds, as required by the statute. Rev. Code, 56, 57; How. & Hutch. 407, 408. That the statutes were merely directory, and recognized notes as well as bonds. Rev. Code, 64, § 100.
    
      2. That Merrill had not lost his lien by taking the several notes of Gridley and Bailey, instead of their joint notes; he cited 1 Hill Abr. 240, § 64. The law giving the statutory mortgage, (How. & Hutch. 417, § 110; Laws 1829, p. 178, § 3,) gives the lien, 1st, even where the property has passed to an assignee, in all cases, whether the assignee had notice of the lien or not; 2d. It gives the lien to secure “ the payment of the sum or sums for which the property was sold;” and not of the bond or note ; 3d. It makes the lien a mortgage. Paine’s O. C. R. 525; 1 Pet. Dig. 428, § 14; 1 How. R. 559.
    
    3. The registration of the deed, or mortgage, is constructive notice of their legal import to all the world; whether the title or incumbrance be equitable or legal. 1 Story’s Eq. Jur. 392, § 403; 1 Johns. Oh. R. 398.
    4. A purchaser is presumed to have knowledge of any fact contained in a deed through which he claims title. Whatever is sufficient to put a party upon inquiry is, in equity, good notice to bind him. 1 Story’s Eq. Jur. 388, and cases cited; 10 Johns. R. 374. If a purchaser has notice of a deed he is bound by all its contents. 2 Sug. Tend. 293, (Am. ed. 340.) A conveyance, with recital of the intent of the purchase, is a conveyance with notice, and the grantee takes, subject to trusts implied, as well as expressed. Cuylerjv. Bradt, 2 Caines, C. E. 326.
    
      5. The statutory lien is valid, although Merrill violated his trust in taking Gridley and Bailey’s several notes; because the deed was notice to Wade of the violation of the trust. Wade must, therefore, stand by Gridley’s case. Merrill acted, as trustee, to sell, under order of the probate court. The statutory lien is in the nature of a trust upon the land for payment of the purchase-money. A purchaser from the trustee, in violation of his trust, with knowledge, takes, subject to the trust. 1 Story’s Eq. Jur. 383, 384, et seq.; 2 lb. 502 - 507; Willis on Trustees, 135, 136, 174, 185, (8 Law Library); 1 Hill. Abr. 240, § 64.
    6. Even if it were true, as Hoggatt contends, that Wade was justified in believing that Merrill had taken other security than the notes recited in his deed; and that the registration of the deed was not constructive notice to Wade of the statutory lien, yet Wade has now such notice of the lien as will bind him.
    “Notice before actual payment of all the money, although it be secured, and the conveyance actually executed; or before the execution of the conveyance, notwithstanding that the money be paid, is equivalent to notice before the contract.” 2 Sudg. Tend. 274, (313, Am. ed.); 3 Peere Wms. 306, 307; 1 Atk. 3S0; 2 lb. 630; 3 lb. 304; 1 Cha. Ca. 34; 2 Freem. 175; 1 Mun. 38, 303; 3 Hen. & Mun. 316; 1 Wash. 41; 1 Johns. R. 288, 301; 7 Ifi. 65; Frost v. Bookman, 1 Johns. Ch. R. 301. See also Doswell v. Buchanan's Executors, 3 Leigh’s R. 365/
    7. The sale by Merrill to Gridley and Bailey, for their several notes payable in bank, was reported to the probate court, and confirmed by it. This confirmation was a judgment of a court of competent jurisdiction of the validity of the sale, and of the taking of such notes ; and that judgment is final, until set aside by the high court on appeal. Its correctness cannot be inquired into, collaterally, by this, or any other court. It is conclusive, in this suit, of all the objections taken by Hoggatt in this bill.
    
      Quitman and McMurran, on the same side.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill of interpleader, filed by the appellee Wade, against Hoggatt and Ayres P. Merrill. The ground for coming into equity is, that Merrill, as the administrator of R. Moore, deceased, had sold a tract of land to Horace Gridley; had taken his notes, with surety, for payment, and had retained the statutory lien upon the premises as further security. That Gridley had become insolvent, leaving one of the notes unpaid, and that Merrill, having exhausted his remedy at law, was proceeding to enforce his statutory lien against the land. That the complainant, Wade, had purchased the land of Gridley, and had given his notes therefor; and that one of the notes had been transferred to Hoggatt, who had brought suit upon it. The bill prays that Hoggatt and Merrill might be required to interplead, and that the court would determine to whom the amount due from the complainant should be paid, and would grant a perpetual injunction as to the other.

There was an agreement between the parties, that the court should decide the matters in dispute, upon the merits, without regard to technicalities. This agreement makes it unnecessary to consider any mere point of form.

The chancellor decreed that Wade should first pay the amount due to Merrill, and that the balance of what he owed should be paid to Hoggatt, and a perpetual injunction granted against Hoggatt as to the rest of his claim. From this decree Hoggatt appealed.

There is no reason to doubt of the right of Merrill to priority of satisfaction. The statute gives a mortgage upon all real estate sold by executors or administrators. The deed of Merrill to Gridley shows that it was land sold by him as administrator, under an order of the probate court, and that a portion of the purchase-money had not become due, at the time Gridley sold to Wade. Wade was therefore justly chargeable with notice, and could occupy no better position than Gridley.

The circumstances relied on to show a waiver of the lien by Merrill, cannot have such effect. It was his duty to take personal security in addition to the statutory lien; the performance or nón-performance of that duty would not affect the lien. Each is intended to be cumulative; and it is doubtful whether anything short of actual payment will discharge the lien. Elliott v. Connell, 5 S. & M. 91.

Nor is there anything in the transaction with Bailey, which can release the land from the lien. If Bailey had joined in the note, it would still have been bound; he would in equity have been regarded as the surety of Gridley,. for his part of the purchase-money, and if he had paid the debt as surety, might have been substituted to the lien of Merrill upon the land.

This statutory mortgage is for the benefit of the estate, and the administrator ought not, by construction, to be held to have done anything to its prejudice. Baine v. McGee, 1 S. & M. 220,

The decree, in its details, might be liable to some objections, but substantial justice has been done, and the parties by agreement have requested a decision upon the merits.

The decree is affirmed.  