
    Sheratz vs. Nicodemus, Sen. and Jun.
    
    The vendor has a lien upon the land sold for unpaid purchase money, although he conveyed it by deed. The lien may be followed into the hands of a purchaser with notice; and when part cannot be followed, it may be as to the residue.
    Where the purchaser has been seven years in possession of the land, under his deed, and.the possession was continued seven years after the purchase money was due, the lien is barred by the act of limitations.
    The complainant sold to the defendant, Nicodemus, senior, a tract of land for nine hundred dollars, part of which had been paid, the balance still remained due. The complainant conveyed the land to the defendant, Nicodemus, senior, by deed, in which the purchase money was acknowledged to be paid, but in fact it was only secured to be paid by the several notes of the defendant. The defendant, Nicodemus, senior, sold one hundred acres of the land to the defendant, Nicodemus, junior, for which he executed a deed of conveyance; the latter purchased the land with a full knowledge that a large part of the purchase money was due; at the time he took possession, the first note executed by the defendant was due. He was in possession of the land, claiming under his deed, more than seven years before the bill was filed, and more than seven years after the first note fell due, but seven years had not elapsed since the two last notes were due. Part of the land had also been sold by Nicodemus, senior, to a man by the name of Armstrong, who purchased with the knowledge and approbation of the complainant. Before the complainant filed the bill, he had assigned the notes by way of pledge or collateral security, to a third person, to secure a debt, which being paid, they were reassigned to him. This fact was not, however, alleged in the pleadings. The defendant, Nicodemus, junior,,relied in his answer upon the act of limitations of 1819. He also insisted, that the acknowledgement of the payment of the consideration money upon the face of the deed was an abandpnment of the lien, if any in fact ever existed. The Chancellor decreed the land to be sold for the payment of all the purchase money, from which decree the defendants appealed to this court.
    
      W. Swan, for complainant.
    The vendor has a lien on property sold for the payment of the consideration money; this lien remains in the hands of a purchaser with notice, &c. See 3 Eng. Con. Chan. Rep. Winter vs. Alsdn.
    The acknowledgment of payment, in a deed of conveyance, is not proof'of the payment of consideration. See same authority.
    A purchaser with notice stands in the place of the original purchaser, or is a trustee for the vendor. Angel on Lim. 350: 4 Kent, 145.
    The statute of limitations will not operate against a trust. Arig. on Lim. 351: 4 Kent, 145.
    Fraud, and want of consideration among relations, should prevent the statute from running.
    The statute of limitations does not commence running until the right to enforce a claim js full and complete. Angel on Lim. 181.
    The vendor has a lien on all or a part of the thing sold, for the consideration money, or part thereof. 6 East, 622, Hanson et al. vs. Morgan: Sug. on Vendors, 174: Ogden vs. Ogden: 1 Com. Con. 83, 90: 2 Com. Con. 210: 3 John. Eep. 399: 2 Dane, Ch. 44, a 3, 17.
    To authorize an abatement of price, a claim must be set up and enforced, for the thing sold, against the purchaser.
    
      Jarnagin and Alexander, for defendants.
    1. After the undisturbed possession of the land by the younger Nicodemus, from December, 1822, up to the present time, it is now too late to enforce a lien, if any ever existed.
    
      2. The complainant’s assenting to- the sale to Armstrong was a waiver of any lien that might have existed up to that time.
    3. It is unjust, if a lien exist at all in this case, to subject a part of the land to the consideration money, and exempt the balance.
    4. From all the circumstances, it is evident that the complainant did not rely upon the land as a security for the consideration money, and therefore no lien existed.
    5. Complainant had no title to a part of the land he pretended to convey to Nicodemus, senior.
   Catp.on, Ch. J.

delivered the opinion of the court.

In this cause it is assumed for the complainant: First. That the vendor of the lands has a lien for unpaid purchase money, and that this lien attaches to a purchaser of the estate from the vendee, if the purchaser had notice. 3 Con. Ch. Rep. Winter vs. Alson.

The position is true; the lien is in the nature of a mortgage, although the creature of equity, and the vendee taking with notice, stands in the same condition of his ven(jQ1.

Second. That the statute of limitations does not com-menee operating until the right to enforce the claim and lien is complete, for which Angel on Limitations, 1S7, is cited.

This is true. 'But the first note due might have been enforced at law, or a bill in equity filed on it against the land on the foot of the lien, immediately when due, which was more than seven years before the bill was filed, and after Nicodemus, junior, had taken his deed and held seven years possession, which was continued to the filing of the bill. Title is claimed, and by this bill asserted to the lands sold, as upon a mortgage. The act of 1819, ch. 28, declares, that no suit at law or in equity shall be prosecuted to enforce any claim to lands but within seven years next after the cause of action accrued.

But third. It is insisted, the lien is an express trust, and the statute of limitations does not apply. The trust is implied, raised by the courts of equity, and within the operation of the statute, even between vendor and ven-dee. And did an express trust exist between them, the purchaser from the vendee would not be bound by it; he would hold as a trustee by implication, because of notice of the express trust. The claim to enforce the lien for the first note, due 1st November, 1824, is therefore barred.

Fourth. It is contended, that although part of the land was sold to Armstrong, who is no party, yet this matters nothing; the lien existing as to the whole land for the purchase money due, any part thereof may be sold to obtain satisfaction. This is certainly true as between’ vendor and vendee; and the purchaser from the vendee having taken his deed with notice, stands in the condition of .the vendee, which proves the position assumed.

The .lien for the two notes last due, therefore, exists unbarred, unless it be true that Sheratz parted with the notes by assigning them to Hale, and by parting with his property therein, by consequence, abandoned his lien, This depends upon the fact, if it be true, that the notes were assigned, in such case the lien was abandoned, as was holden by this court in Crockett vs. Claiborne, 3 Yerg.Rep. The fact of the title of the notes being parted with by Sheratz, is neither alleged in the bill or stated in the answer, or either of them, and is therefore not in issue, though there is proof on the subject by Hale, yet the proof cannot be regarded, and probably could have no effect if it was. It follows, the complainant is entitled to enforce his lien as to the two last notes, to which end the decree must be reversed, and entered pursuant to the instructions herein contained. The complainant will pay the costs of the appeal.

Decree reversed.  