
    Roberts vs. Rose & Mathews.
    1. A^vendor who conveys land can have no Hen or priority of satisfaction for the unpaid purchase money over other creditors of the vendee.
    2. Adams, a security in a bill single, confessed judgment in favor of the obligee and took judgment by motion against the principal: Held, that such judgment was valid.
    Ephraim Roberts sold a tract of land, containing sixty acres, in -ihe-county of Robertson, to Henry J. Mathews, on the Ilthdayof March, 1836. Roberts made a deed in fee-simple to Mathews, warranting and defending the title to him and his assigns, &c., and took Mathews’ obligation to pay him one hundred and seventeen, dollars, ninety-seven cents, one day after the date thereof. Mathews failed to pay this obligation, became insolvent and left the State, on the 10th of December, 1837. Dudley S. Adams 'being the security of Mathews in an obligation executed by them to W-Gardner, for the sum of one hundred and fifty-nine dollars and fifty cents, appeared in the circuit court of Robertson county, on the 6th day of September, 1837, and confessed a judgment in favor of Gardner for the amount of the note and interest thereupon. Adams immediately moved the court for a judgment over against Mathews, and a jury being empanneled and having determined that Adams-was the security of said Mathews in the said obligation, a judgment was rendered against Mathews and in favor of Adams for the amount rendered against him. A fi. fa. was issued on this judgment and levied on the tract of land sold by Roberts to Mathews. The land was sold at Springfield, in the county of Robertson, by the sheriff thereof, on- the 25th of April, 1838, and Reuben Rose became the purchaser thereof, for the sum of one hundred and forty-seven dollars. The sheriff conveyed the land to Rose and he took possession.
    Roberts filed his bill in the chancery court, at Gallatin, on the 9th April, 1839, against Mathews and Rose, charging that Rose was a purchaser with full knowledge of the fact, that the purchase money due him was unpaid, and praying a subjection of the land to the satisfaction of his debt. Rose answered and denied all knowledge of the fact, that the purchase money was unpaid at the time of his purchase. It was however fully established in proof.
    The cause came on to be heard before the Chancellor, at the April term, 1840, who being of the opinion, that by the sale and conveyance of the land to Mathews, Roberts lost all lien upon the same for the purchase money, and that he was entitled to no priority of satisfaction over other creditors, dismissed the bill and taxed complainant with the costs. Complainant appealed.
    
      H. S. Kemble, for complainant.
    
      J. C. Guild, for defendant.
   TuRley, J.

delivered the opinion of the court.

„ Two questions are raised in this case:

1st. Whether the lien which the law gives to the vendor of real estate as security for the payment of the purchase money against the vendee, and subsequent purchasers with notice, can he enforced against a purchaser under an execution upon a judgment against the vendee?

2dly. Whether a judgment confessed by a security without service of process is void, and therefore renders invalid a judgment on motion against his principal?

The first question has been elaborately examined by this court in the case of Gann vs. Chester & Blair, 5th Yerg. Rep. 205, where it was held, that “a vendor, who conveys land, can set up “ no lien, nor have any priority of satisfaction, for the unpaid pur- “ chase money, over other creditors of the vendee.” We concur in this opinion.

The second question rests upon the construction of the 3d section of the act of 1801, ch. 15, which provides in substance, that the court shall not permit a security to confess a judgment, so as to harrass his principal, provided that he will come in and indemnify him against future loss. It is probable, that it would be the duty of the court, if it knew that the person who proposed to confess the judgment was a security, and that he was doing so for the purpose of harrassing his principal, not to permit him to confess the judgment, when no process had been served, till notice had been given to the principal. But it is difficult to perceive, if the court permitted the confession of the judgment, how it could be declared void; and it is still more difficult to perceive how it would have been possible for the court in this case, as well as in most of the like kind, to know whether the person proposing to confess a judgment was a security or principal.

The statute is directory to the court, and a neglect to enforce its provisions, cannot be held to vitiate the judgment.

Let the decree of the chancery court he affirmed.  