
    William C. Dunlap vs. Daniel Burnett et al.
    Where the vendor of real estate gives a bond for title on payment of the pur-* chase-money, and afterwards executes a deed to the vendee, on his promise to give personal security for the purchase-money, which he fails to do, the vendor will still be entitled to his equitable lien, as between himself and the vendee, for the purchase-money.
    Where the vendee of real estate who has not paid the purchase-money, executes a deed of trust or mortgage, upon the premises purchased, to one having no notice of the unpaid purchase-money, to secure a debt contracted by the vendee since his purchase, the cestui que trust, or mortgagee would hold the property discharged from the vendor’s equitable lien.
    It seems a different rule would prevail, if the deed of trust or mortgage were executed to secure a debt due by the vendee prior to his purchase ; in such case the vendor’s equitable lien would prevail.
    The judgment creditor of the vendee of real estate, the purchase-money of which has not been paid, cannot subject the land to his judgment to the exclusion of the vendor’s equitable lien.
    A judgment is a lien only upon the actual interest the judgment debtor has in the property upon which it is attempted to enforce the judgment; and is sub* ject to all the equities which exist at the time in favor of third persons.
    The purchaser for a valuable consideration, without notice of real estate, the purchase-money of which is not yet paid, holds the same acquitted from the vendor’s equitable lien for such unpaid purchase-money. ■
    In error, from the vice-chancery court, held at Holly Springs, Hon. Joseph W. Chalmers, vice-chancellor.
    William C. Dunlap, in March, 1841, filed his bill, alleging, that on the 14th day of November, 1836, he sold section 34, in Township 3, Range 7, west, in the Chickasaw cession, in the county of De Soto, in this state, to Greenville Burnett, the consideration of the sale being a tract of land owned by Burnett, in Tennessee, and the sum of fourteen hundred dollars, to be paid in one, two, and three years, in equal payments, for which Burnett executed his notes; that, at the time of the purchase, he executed to Burnett a title bond, wherein he hound himself to convey to Burnett the land sold on the payment of the consideration money; that, after the execution of the title bond, at the request of Burnett, he caused the patent to the land, from the general government, to be issued, in the name of Burnett, Burnett agreeing, in consideration thereof, to give such personal security upon the three notes given by him as should be satisfactory to Reuben Chapman, who, as agent for the complainant, was to receive the personal security; that Burnett, after receiving the patent, when the notes were presented to him, failed to give the security.
    That Burnett paid the first of the three notes. That a judgment had been recovered in Alabama, in favor of Biles and M’Neill, to whom the complainant had entrusted it for collection, on the second note, and that they had transferred the judgment to the complainant; that the third note was unpaid.
    That Burnett had transferred this land in trust to John Gordon, to secure O. D. Hernden and Daniel Burnett, as the security of said Greenville Burnett, in a note payable in the Union Bank of Mississippi.
    The bill prayed that the proper defendants might be made, and that the land might be sold to pay the unpaid purchase-money.
    The answer of Greenville Burnett admitted the sale, execution of the title bond, issue of the patent, and promise to give satisfactory security, as charged; but it denied the refusal to give the security agreed upon, or that the notes were ever presented to him by Chapman.
    He admitted that the second and third notes were unpaid; and that he had, in 1837, met with the complainant, who had not asked him for the additional security.
    He admitted the judgment against him, but averred it to be bona fide the property of the plaintiffs in the record, for valuable consideration, and, if reassigned to complainant, it was only for the purpose of setting up the supposed lien.
    He admitted that he had transferred the land. On the 10th day of October, 1839, he conveyed it to John Goodwin (and not John Gordon) in trust, to secure the debts and liabilities mentioned in it; that the deed was regularly recorded. By the deed the land was conveyed, as stated, to secure to Daniel Burnett twenty-four hundred dollars, then due, and the sum of two thousand dollars, to the Mississippi Union Bank, upon which Daniel Burnett and Osborn D. Hernden were his sureties, which debt was due on the 1st of January, A. D. 1840. Upon default of payment the deed of trust gave the trustee a power of sale.
    The answer further stated, that these were just debts, and that Daniel Burnett had, since the execution of the deed of trust, paid the note to the Mississippi Union Bank.
    That the conveyance was made to Goodwin, in trust, for the purposes mentioned in the deed, without any knowledge on the part of Goodwin of any outstanding equity in favor of the complainant.
    Goodwin answered, that all he knew about the sale to Green-ville Burnett, was communicated to him as Burnett’s counsel, and he insists upon his right not to disclose what he thus learned.
    He admitted the. execution and object of the deed of trust, and stated that Greenville Burnett having failed to pay the debts named in it, he had, in obedience to, and in accordance with the provisions of the deed, sold the land, and executed a deed thereto to Daniel Burnett; that he never knew that there was any lien for the unpaid purchase-money claimed, as against Greenville Burnett, when he was appointed trustee, or when he sold the land; and he submitted, therefore, whether the complainant was entitled to the relief he claimed.
    Daniel Burnett answered, that he had no personal knowledge of the nature of the sale to his co-defendant, nor did he have any information in relation to any outstanding equity or secret trust, existing between complainant and Greenville Burnett, until after the filing of the bill in this case.
    He answered further, setting forth the nature and amount of Greenville Burnett’s indebtedness to him, and to the Mississippi Union Bank, the execution of the deed of trust, the failure of Greenville Burnett to pay the sums secured, the amount paid by himself, and the sale under the deed of trust by the trustee, and the purchase by himself of the land. He states further, that Greenville Burnett assigned to him the patent for the land issued by the general government; that he did not know-why the complainant had the patents made out in the name of Greenville Burnett; that the legal title being in Green-ville Burnett, and having no notice of an outstanding equity, he had, for value, bought the land, and insisted upon his title to it.
    The depositions of Biles and M’Neil were taken. They proved that they had no interest in the judgment rendered in their names, but that it belonged to the complainant.
    Upon this state of pleadings and proof, the cause was submitted to the vice-chancellor, who ordered an account to be taken of the sum due to the complainant, by Greenville Burnett, and decreed a sale of the land to discharge it.
    From this decree the present writ of error is prosecuted.
    Davis, for plaintiff in error.
    I cannot see the grounds upon which the vice-chancellor predicated his decree in this case. There is nothing to be found in the bill and answers, or the testimony taken, that would warrant such a decree. So far from the bill, answers, and testimony, showing anything to warrant the decree, they show an express waiver by the complainant, not to look to the land as security, but to rely on the notes of Greenville Burnett, with personal security. It is true the complainant alleges that, after making to the said Greenville Burnett a deed in fee simple for the land mentioned in the bill of complainant, the said Greenville Burnett refused to give the security. This allegation is positively denied in the answer of Greenville Burnett, who states that so far from refusing to give the security, he was always ready and able to do so, for many years after the contract, but was never called on. Had the personal security been given, would it have been contended by any one, that the lien would still have existed upon the land ? Surely not. The complainant never having called for, or demanded the security, is conclusive that he considered Greenville Burnett himself to be good, and therefore tacitly' waived the security; and that the-idea of making the land liable had its origin in the fact that- Greenville Burnett, many years after the transaction, became insolvent. If complainant-had always regarded the-debt-as being, a--lien on the land, why did he not seek, to procure the enforcement of the lien when the note first fell. due. Twelve months after the maturity of ¡the note, suit,was instituted--in the-district court of the United States, at Huntsville, Alabama, and when the complainant failed to make the money on said note in that court, in. the year 1841, for the first time he claims to have a lien upon said land, and implores the court of chancery to enforce it. These facts show, As. conclusively as facts can ¡show, that the complainant did not understand that he had retained .a lien upon said land, but that he had expressly parted with his lien.
    The rule of law. is everywhere laid down,.that if a vendor of land takes separate security, the lien that he otherwise would have had upon the land is waived. .4 Wheat. 256,291; 6 How. 369. .
    In this case, as I have shown,- there was an agreement for separate.security,, the .taking, of -which was waived by the act of the vendor himself; upon this-ground-alone; then, we-would be entitled to have the .decree of the vice-chancellor reversed.
    But if there had been no agreement, to waive the lien,, the -giving by the vendor a deed in fee simplezas he.did in this case, was a waiver of his: lien directly; both the-policy of the country and. the law makes it so. See 6 How.-369.
    . But if, the vendor-in this instance had doné nó act by which he waived. his lien, yet Goodwin and Burnett being innocent purchasers for a valuable consideration, without notice, will be protected against a mere implied lien. See 6 How. 364; 7 Wheat. 56.
    , The' vice-chancellor decrees against the land, as the decree shows, upon- the ground that Goodwin and Burnett were purchasers with , notice; now the bill, answers, and testimony, show that this' statement, in the decree is unwarranted, and that the decree is erroneous.
    
      It does appear that the sale was made by the trustee, and that Daniel Burnett became the purchaser after -the service of the subpcena; this I apprehend the vice-chancellor has determined to be notice, but in this he has manifestly erred, because although Daniel Burnett may have had notice that the purchase-money had not been paid when he -purchased at the trustee’s sale, yet the law does not therefore make him a purchaser with notice, because he takes under John Goodwin, the trustee, and John Goodwin was a purchaser without notice. ■ See Mitford, 278.
    This view of the ease shows conclusively, that the decree is erroneous and must be reversed, and this court will render the decree upon the facts that the vice-chancellor should have rendered. ...
    
      David C. Glenn, for defendant in error.
    1st. I insist that by the answer of Greenville Burnett, and the‘deposition of Biles and McNeil, Dunlap has established his lien on the land as between himself and G. Burnett. The case of Clairborne v. Crockett, 3 Yerg. 27, does not apply in this case. The notes were never assigned in interest, which is now and always has been in Dunlap, as fully appears from the only proof in the cause, the deposition of Biles and McNeil. The holder of a note indorsed in blank, who has written an indorsement over the name of the indorser, making the note payable to an agent to whom it is transmitted to obtain payment, may strike out the indorsement when it is .returned. 18 - Johns. R. 230; 3 Wheat. 182; Bayley on Bills, 106.
    2d. The defendant, D. Burnett, does not show that he is an innocent bona fide purchaser for valuable consideration, without notice of Dunlap’s equity. If a purchaser wishes to rest his claim on this character he must deny notice, even though it is not charged; he must deny positively, not evasively ; he must even deny fully, and in the most precise terms, every circumstance from which notice could be inferred. 2 Johns. C. R. 157; 2 lb. 345; 3 Yerg. 512; Sug. on Yen. 530, 556.
    Where a purchaser without notice, relies on this character as a defence in his answer, all the requisites and certainty required in a plea must be contained inthe answer. 10 Yerg. 335. The plea must aver that the vendor was seised in fee, or pretended to be, or else the plea is bad. 2 Yerg. 196, and cases cited. This, if done at all, is not sufficiently done in the answers, either of Goodwin or D. Burnett, as they show upon their face.
    3d. If D. Burnett has shown himself a purchaser for valuable consideration without notice, I insist he was a purchaser under such circumstances that he did not take the land discharged of appellee’s lien.
    The deed of trust from Greenville Burnett to Goodwin is fraudulent and void. Where there are various considerations set forth in a deed, and such deed is attacked on the ground of fraud by creditors, the failure to prove such considerations furnishes the indicia of fraud. 1 Humph. 335. A deed color-able and void as to part, is so as to all the property contained in it. 4 Yerg. 550. There is no proof of G. B. owing D. B. the $2,400 mentioned in the deed, nor is there any proof that Greenville ever owed the Union Bank $2000, and that D. B. was security for the same. The answers are the only proof, and they are evidence for the defendants only as to the allegations and charges in the bill, and it is not framed so as to throw the proof of their answers on the defendants.
    The answer of Daniel Burnett shows that the $2000 note to the Union Bank and the one mentioned in the deed, have been paid, and the $1,500 for which the land was sold, was never-secured by the deed. The $2,400 stated as part of the consideration, cannot be disproved by appellee, as it is stated to be for money paid and assumed by Daniel for Greenville Burnett before that time. Who he paid it to, or who he promised to pay it to, is not stated. This part of the consideration is clearly fraudulent and colorable, only put in to embarrass creditors.
    It is worthy of notice, in this connection, that the deed is dated in October, 1839, a few days only before the last note of Green-ville Burnett to Dunlap became due and payable.
    . Is this a case of conveyance at all ? There is no deed from Dunlap to Greenville Burnett.
   Mr. Justice Clayton

delivered the opinion of the court.

The bill states, in this case, that the complainant in the court below, the present appellee, sold a tract of land to Greenville Burnett, on the 12th November, 1836, took his three promissory notes for the purchase money, and executed a bond for title upon their payment. Afterwards Burnett requested the complainant to convey him the legal title, and promised him to give good personal security : complainant complied with this request, but Burnett failed to give the security. The first note was paid, the two others remain unpaid. The bill charges that Greenville Burnett conveyed the tract of land to John Goodwin in trust, to secure certain debts due to his co-defendants, Daniel Burnett and others. It prays that his equitable lien as vendor, may be established, and that the land may be decreed to be sold to pay the balance of the purchase-money.

Greenville Burnett in his answer admits the purchase of the land, that at first only bond for title was given, subsequently he received the legal title under an agreement to give personal security, which was never done. He states that on the 10th of October, 1839, he conveyed the land, by deed duly recorded, to John Goodwin in trust for the payment of certain debts, and that the trustee had no knowledge of any outstanding lien or equity upon the land.

Goodwin, the trustee, in his answer, sets out the deed of trust, and states that he made sale under it according to its terms, and that he had no notice of any outstanding lien or equity up to the time of the sale. Daniel Burnett answered that Greenville Burnett was indebted to him in some twenty-four hundred dollars, besides a security debt to the Mississippi Union Bank for about $2000. That the land was conveyed in trust to secure these debts; that he bought the same at the trustee’s sale on the 15th September, 1841, and that he had no notice of any lien, “ nor any information of any outstanding equity or secret trust, until the service of process in this cause.”

Upon this state of facts the question arises, whether the complainant, as vendor of the land, has any lien which can be enforced against these parties. As to Greenville Burnett, there is no doubt the lien would still exist, were the land still his. The giving of the deed under the promise' of personal security, a promise which was- not complied with, would not be regarded as an abandonment of the lien as to him. But then the rights of others intervene. The'conveyance by deed oftrust to secure the payment of bona fide debts, due to those who had no notice of the equitable lien, placed them, according to some of the authorities, in the same situation with a purchaser under- the like circumstances. Duval v. Bibb, 4 Hen. & Mun.; Bayley v. Greenleaf, 7 Wheat. 46; 4 Kent, 153. There has been some disposition manifested to limit the operation of this principle to cases in which the mortgage or deed of trust was executed to secure debts which arose after the vendor had made conveyance, and not to extend it to antecedent debts. Shirley v. Congress Sugar Refinery, 2 Edwards Ch. 512; Mynre v. Alston, 1 Dev. Eq. In this case a portion at least of the debts were created after the conveyance by Dunlap; so that if the principle be restricted to the limit indicated, which we think would be correct, Daniel Burnett is still within its range.' ' - -

This doctrine as- to creditors is intended to be confined to such-as claim under a deed of trust or mortgage. Such conveyances are a- lien, and something-more-; they constitute a transfer of the property itself. Conard v. Atlantic Insurance Company, 1 Peters, 441. They form a special assignment, and their effect differs from a general lien, such as that created by a judgment, or general assignment by operation of law. These are regarded as subject to all thé' equities which- exist at the time in favor of third persons, and a court of equity will limit such lien to the actual interest of the judgment debtor. Ex parte Howe, 1 Paige, 125; 2 Edwards; ut supra; 3 Dess. Eq. R. 74; Keirstead v. Avery, 4 Paige, 15.

It is well settled, moreover, that a purchaser for valuable consideration, without notice, is protected from the vendor’s lien. 4 Kent, 153; 1 S. & M. 197; 2 Ib. 108. Daniel Burnett also occupies this position. The answer avers that he purchased under the deed of trust without notice, and that he paid a valuable consideration: It denies notice at any time prior to the filing of the bill. Upon either or both of these grounds, he is entitled to hold the land, divested of any lien in favor of the complainant.

The decree of the court below must therefore be reversed, and the bill dimissed.

Decree reversed.  