
    Wilson and Others v. Graham’s Executor and Devisees.
    Decided Dec. 13th, 1816.
    
      t. Real Esiate — Vendor's Lien — Discharge of, -A Vendor of land, by executing a Conveyance and taking bond and security for the purchase money, discharges the land from his equitable lien:  even while it continues the property of the purchaser.
    This was a suit in the Superior Court of Chancery for the Richmond District, in behalf of the appellants assignees of Nathaniel Burwell. for an account of the assets belonging to the estate of Elizabeth Graham deceased, and to subject a *tract of land (which, in her life time, was sold and conveyed by the said Burwell to a Trustee for the benefit of her and her children) to satisfy the claims of the Appellants, to whom the bonds taken for the purchase money were assigned. It appeared, that a certain John Wyatt, who was said, but not proved, to have died insolvent, was security in those bonds. Suits were brought upon them at law by the assignees: in one instance, the defendant, Elizabeth Graham, pleaded cov-erture at the time of executing the bond: and judgment was pronounced, that the plaintiff take nothing against her, but that he recover against Wyatt: in another case, judgment was obtained by the plaintiff against her only. Those Judgments were alleged to be unsatisfied; and this suit was brought to get satisfaction. The Executor of Mrs. Graham, by his answer, insisted, that she was a feme covert, and not bound by the bonds. A compromise took place between the plaintiffs, and several of the devisees, by which the latter gave up their respective shares of the land to the former, who, on their parts, relinquished any claim for profits.
    On the 19th of June, 1811, a Decree nisi having been served upon the defendant, Walter Graham, and he still failing to answer the Bill, upon the motion of the plaintiffs for a Decree against him, Chancellor Taylor was of opinion, that, “by the terms of the Deed from Nathaniel Burwell, Elizabeth Graham and her children were all joint purchasers; and that the said Bur-well, by executing that Deed, and taking bonds for the purchase money, discharged the land from his equitable lien; so the plaintiffs, as his assignees cannot now be allowed to claim, under him, that which he had abandoned;’’ and, also, “that if (as the fact seems to be) Elizabeth Graham executed those bonds while covert, they were, as to her, void, and, therefore, the plaintiffs have no right to an account of her assets, in the hands of her Executors.” He, therefore, dismissed the Bill as to the said defendant, Walter Graham: from which Decree the plaintiffs appealed.
    * A f ter an argument by the Counsel for the Appellants, no Counsel appearing for the Appellee, the President, on the 13th of December, 1816, pronounced the Court’s opinion, that there was no error in the Decree, which therefore was affirmed.
    
      
       Reat Estate — Vendor’s Lien — Discharge of. — Before the passage of our statute abolishing the vendor’s lien where i t was not expressly reserved in the deed, il a vendor took a bond with personal security and executed a deed for the land he could not claim a vendor's lien on the land. Warren v. Branch, 15 W. Va. 37, 38, citing principal case.
      The rule is well settled that merely taking the bond, note or covenant of the vendee himself for the purchase money Is not of itself a waiver of the vendor’s lien, for it may have been given not to supersede the lien hut for the purpose of ascertaining the debt and countervailing the receipt of the payment usually indorsed on the conveyance. But if the vendor takes a distinct and independent security, either of other property, or the responsibility of a third person, the party having carved out his own security, the law will not come to his aid by creating another, and the equitable lien will be discharged. Renick v. Ludington, 16 W. Va. 395; McCandlish v. Keen, 13 Gratt. 624, both citing principal case as authority. See also, foot-note to McCandlish v. Keen, 13 Gratt. 615.
    
    
      
       Note. Quaere Whether the taking a bond with out security has the same effect?
      See Cole v. Scott, 2 Wash. 141; Blackburn v. Gregson, 1 Bro. Ch. cases. 420: and Duval v. Bibb, 4 H. and M. 113. — Note in Original Edition.
    
    
      
       Note. The plaintiffs thereupon moved for leave to amend their Bill, and to make the representatives of John wyatl parties defendants; which the Chancellor, “for reasons too obvious,” refused. Note in Original Edition.
    
     