
    Hopkins, &c. vs Garrard.
    Error to the Pendleton Circuit.
    Chancery.
    
      Case 85.
    A defendant may sell land which he has purchas.ed, though a suit anay be depending to subject it ito thepayment of the unpaid consideration, the ¡purchaser being eubjeet to the •equity o.f the complt’s bill.
    
      Vendor’s lien. Notice. Lis pendens purchasers.
    
    
      June 26.
   Chief Justice Marshall

delivered the opinion of the-Court.

So much of the decree as annuls and sets aside the deed from Hopkins to the Fees, is final, and clearly erroneous. The deed is not void, because it was made pending the suit to subject the land to payment of the purchase money due from Hopkins to his vendor, Garrard, but is only liable to be overreached and rendered inoperative by the result of the suit, and so far only as may be necessary to effectuate that result. The title passed by the deed subject to be divested by a sale and conveyance under the decree, for the satisfaction of the vendor’s lien. As to any part of the land not thus sold, the pendente lile purchaser is entitled to retain the title. And he has a right, before an actual sale, to free it from the incumbrance, by paying up the arrears of the purchase money. The decree annulling his deed, deprives him of these rights. As at the date of the deed from Hopkins, the ■pending suit had no other object but to subject the land to payment of the first instalment of the purchase money; and as the deed from Garrard to Hopkins acknowledges the receipt of the entire consideration, there is much reasson 'in the argument, that the title under the deed ¡from Hopkins, should not be affected by the mere pendency •of the suit, except to the extent of the instalment demanded by the original bill, and which was the only •claim setup and pending when the deed was made.

The-vendorie.maining in possession of land sold and conveyed, is sufficient to put a subsequent purchaser upon inquiry 'as to the payment of the-considera'tion.

■Swope for plaintiffs; Trimble for defendaat

But the fact that, notwithstanding his deed to Hopkins, which acknowledged full payment, Garrard, the grantor, ■¡remained in possession of the land, was an indication that he had or claimed some interest in the land, and should have put the subsequent vendees on an inquiry by which they would have easily learned that the purchase money was, in fact, unpaid, and probably -that Garrard was holding the possession as a security for it. On the ground of notice, therefore, implied from this possession, the lien of Garrard for his purchase money, -is considered effectual against the subsequent purchaser, even beyond the effect of the lis pendens. It was, however, even in this view, .erroneous to. annul the deed. This part of the decree must, therefore, be -reversed. The residue of the decree being interlocutory, is not subject •to reversal. But we suggest that it seems improperly to have omitted a^credit of 3120, entered on'the-note exhibited by the complainant; and also a credit for five dollars paid by-Rice, and SI4 50 paid by Gulp; and the rent should have been credited at the rate of $60 a year. The acceptance of the deed by Hopkins, with the knowledge of the deficiency in the quantity, and his expressions of satisfaction, would seem to preclude his claim to a deduction in the price. These suggestions can have no •effect, if that part of the case to which they relate has been finally disposed of.

Wherefore, so much of the decree as annuls the deed from Hopkins to the Rees and sets it aside, is reversed and the cause is remanded.  