
    Daniel Brush and Howard Stanbury v. James Kinsley, William A. Adams, and Richard Stillwell.
    The assignee of a promissory note, given in consideration of land — the vendor not having parted with the legal title, and the vendee not having paid all the purchase money — can not sustain a bill in chancery to enforce the payment of the purchase money to the vendor, obtain a decree for the amount of such note against the vendee, and a decree for the sale of his interest in the land.
    A vendor, not having parted with the legal title, and the,purchase money not having been paid, is possessed of both the legal and equitable title to the land.
    A vendor’s lien is personal, and does not pass to the assignee of a promissorv note, given for the purchase money.
    This case comes up on demurrer to a bill in chancery, from the county of Muskingum.
    *Tho facts relied upon for the relief sought in the bill are, in substance, as follows:
    William A. Adams sold two lots, in the town of Zanesville, to one Kinsley, who, in consideration of the purchase money, executed two promissory notes, dated July 31, 1840 — one for $2,000, payable one year after date, the other for $400, payable 18 months after date. Adams, at the same time, executed his title bond, conditioned to execute a deed on the payment of the purchase money. ' Kinsley entered into possession, and has made valuable improvements; and has made payments to the amount of $400. Adams has extended the time of payment from time to time; and $1,000 remains unpaid. The $400 note, by assignment, has come into the hands of complainants and remains unpaid. Kinsley, being in-' debted to Stillwell, executed his notes; and, as security, assigned to him his title bond.
    It is sought to enjoin Kinsley from paying to Adams the balance of the purchase money, or so much thereof as will secure the complainants the amount due on their noto; to decree Kinsley to pay the same, and, in default thereof, to decree a sale of the land.
    R. Stillwell, for complainants :
    When the legal title to land has not been conveyed, the assignee of the vendor stands in the place, and has all the remedies of the vendor, for the collection of the notes given for the purchase money. The case of Jackman v. Hallock, 1 Ohio, 318, was decided without attending to the distinction that exists between cases when the legal title has or has not been conveyed, when, by reference to the cases in which it has been held that the assignee has no lion, it will bo found that, in all, the legal title has been conveyed.
    Thomas M. Drake, for respondent:
    1. The complainants are not entitled to the relief they seek in this court, unless because ample relief is not attainable *at law. And it can not be pretended that a court of law has not jurisdiction — power to bring the maker of the note before it — to render judgment upon it, and issue execution.
    2. There is nothing shown in the bill which entitles the complainants to fasten upon equities in anticipation of a judgment.
    3. The lien of a vendor upon the land sold for the purchase money is a personal lien, and not assignable. It exists, whether notes be given or not, but is no more transferable in the one case than the other. The indorsement of a note only transfers a legal title. Jackman v. Hallock, 1 Ohio, 318; Tiernan v. Beam et al., 2 Ohio, 383. Such is also the generally received doctrine in other states, and in England. Coppin v. Coppin, Sel. Ch. Cases 28, and Pollexfen v. Moore, 2 Atk. 272.
    The situation of the assignee, in a case like the present, is similar to that when a purchaser, in consideration of the conveyance, covenants to pay the vendor a certain sum, and to third persons another part of the purchase money. In such case the latter, not being parties to the contract, would have no lien upon the land, while the vendor would. 2 Story’s Eq. 482, sec. 1233.
    The complainants can not comply with the principle that “ he who seeks equity must do equity.” If they obtain a decree against Kinsley, and collect the money, they can not make him a deed for the land.
   Read, J.

The only possible'ground upon which this bill could be sustained is, that the assignee of a promissory note, given for the purchase money of land, is clothed with a vendor’s lien. It has been decided, in Townshend v. Carpenter, 11 Ohio, 21, that the assignee of a note, not negotiable, having an equity only, may enforce payment in chancery; but, if negotiable, the holder having the legal interest must sue at law. It is not alleged in the bill, that the note is not negotiable, which is necessary to give equity jurisdiction. The legal holder of negotiable paper can not maintain a bill in chancery and obtain *a decree for the payment thereof, upon the ground that ho desires to subject an equity. In sueh case, judgment must first be [iad at law, and then, under the statute, chancery will aid the execution, by subjecting equitable interests to its satisfaction.

But, in this case, are the complainants aided by the vendor’s lien. This lien results'from the fact that equity holds the vendee clothed with legal title to land, a trustee of the vendor for the payment of the purchase money. Before the legal title passes from the vendor on a contract for the sale of land,'there is no sueh lien. The vendor’s remedy, in such ease, is upon the contract, either to enforce a specific performance of the contract, or in an action at law. The vendor can not compel a relinquishment of the legal title until he clothes himself with equity by the payment of the purchase money. In this ease, Kinsley has not paid the purchase money, and hence has neither the legal nor equitable interest in the land. Hence, Adams holds the full title to the land, both in law and equity. How, then, does this case stand? The complainants hold a note for $400, executed by Kinsley to Adams, and by Adams indorsed or assigned to them, and the complainants have the right to look, for aught that appears, to both Kinsley and Adams for payment. But suppose this note not negotiable, and the complainants obtain a decree against Kinsley for the amount as prayed in the bill — how could this court decree a sale of this land ? All that could be done, would bo to decree Kinsley’s equity in tho land to be sold, when in fact he has no equity in it, because he has not paid up the purchase money. Nor can they claim that they have Adams’ lieu as vendor, because Adams has no sueh lien, because as yet he holds both the legal and equitable interest in the land. The whole case then reduces itself down to this — that the legal holder of a promissory note, given in consideration of a contract for the sale of land, not executed, may file a bill to compel the payee and indorser of such note, to specifically perform such contract, and then subject the interest thus acquired, to the payment of such dote. *This is the whole matter, because this is all, if anything, which-under the facts could be done.

But more, if this case was such that the vendor had a lien, the assignment of a note for the payment'of the purchase money would not carry with it the vendor’s lien. This is personal to the vendor, not capable of assignment or transfer, although it may descend or be devised, as settled in Jackman v. Hallock, 2 Ohio, 313; Tiernan v. Beam, 2 Ohio, 383. Demurrer sustained and bill dismissed.  