
    Robert H. Wynne and Susan his wife v. Peyton R. Tunstall.
    From Halifax.
    In a partition under the act of 1787, a charge of money upon the more valuable dividends for equality of partition, is a legal charge upon the land, and follows it into the hands of a purchaser for valuable consideration without notice.
    Money thus charged is realty as much as the land for which it is the substitute ; and where it was allotted to the share of a feme covert and the husband had taken a bond and given a receipt for it, held that the husband and wife could recover the amount for her use.
    The birr charged, that the Plaintiff Susan, was cn-entitled to one-eighth of a tract of land in Northampton County, as tenant in common in fee-simple, with seven other persons. That a petition for partition thereof, wafj p{je(] jn Northampton County Court, and after x » proper proceedings had, a partition was returned, where-j,y j0£ mun(i01. five was assigned to the Plaintiffs in se-veralty, valued at 5,500 dollars, that the value of each share was §6,547' Q9,i ; that for equality of partition the sum of §1047 62s, was added to the share drawn by the. Plaintiffs, and was charged upon lot number seven, in the partition, which was drawn by one Marmaduhe .TV’. Jeffreys. That Jeffreys liad never paid the said sum of §1047 62h, but was utterly insolvent, and had sold his share to the Defendant Peyton Jt. Tunstall, who had, at the time of his purchase, notice of the charge thereon, in favor of the Plaintiffs. The bill prayed general relief, and also specialty that the land drawn by Jeffreys. and conveyed by hitn to the Defendant, might be sold by order of the Court, for the purpose of paying the sum of money due to the Plaintiffs for equality of partition.
    The Defendant, by his answer, admitted the partition and charge as set forth in the bill, and that he had notice of the charge upon the lot drawn by Jeffreys, at the time of the partition. But he stated that he purchased that lot of Jeffreys, on the 22d of September 1817, that the partition was made in December 1814, and he sup-' posed that Jeffreys was obliged, at the time of the partition, either to pay or secure the sum charged upon it, and that it had accordingly been paid or secured. He therefore denied, that lie had any notice of the claim of the Plaintiffs at the time of his purchase, and insisted that he was a purchaser for a valuable consideration,. He also averred, that the Plaintiff Robert well knew of thé negociation for his purchase from Jeffreys, from its commencement to its close, and fraudulently or negligently concealed his claim upon the land. That Jeffreys continued solvent, until December 1819, and that the claim of the Plaintiffs as now urged, was not asserted until June 1820, and that had lie received earlier no tice, that his land was held subject to the Plaintiffs claim fie might have paid it and procured an indemnity from Je£"rija. The Defendant also charged that the Plaintiff Hubert had in November 1819, settled with Jeffreys for this claim, had taken the, negotiable security of Jef-freys for the amount thereof, and given a receipt therefor, and (hereby had elected to consider it ;.v> a personal demand upon Jeffreys. The Defendant therefore insisted, that the Plaintiffs were barred of all equity, cither by the fraudulent concealment of their claim ; by their latches in not asserting It, whereby the Defendant was deprived of all opportunity of procuring a counter security, or by their election, to consider the amount as a personal demand against Jeffreys.
    
    The Plaintiffs by an amendment, admitted that the Plaintiff Robert, had taken the. Loud of Jeffreys, as set forth in the answer, but averred that he had done so only in the hope of receiving satisfaction from Jeffreys, in which he had been disappointed, and denied that he had received payment of said bond, either from Jeffreys or by negotiating it.
    There was evidence taken on both sides, but it did not materially vary the facts as presented by the bill and answer, alid a recapitulation of it is not deemed necessary »,o the elucidation of the case.
    At the hearing before Judge, Bomsii, on the fall circuit of 1825, his honor decided that the Defendant had notice of the charge, and decreed that 3jc should pay the sum of §>104r CM, charged upon lot number seven, with interest thereon, into the Master’s Office, for the use of the Plaintiff Susan, in suds manner as the Court might direcl, and that each party should pay their own. costs. From which decree, the Defendant appealed.
    
    
      The case was argued at June Term 1826, by Gaston Hogg, for the Appellant, and by Badger, for the Plaintiffs. The Reporters have only an imperfect note ojp argument.
    For the Appellant it was insisted,
    1. That the sum charged for equality of partition, if in any view a lien, was a legal one, and could be enforced by an execution founded upon the filial judgment in the petition for partition ; (Revised Code, eh. 2,74, 558.) and therefore the Plaintiffs had mistaken their forum.
    2. That supposing an equitable lien to exist, the Defendant was not affected with notice of it; he did not know that a lien existed; he only knew that there was an inequality in value ; and notice to affect the conscience of a purchaser, must be notice of a subsisting demand.— (1 Brown C. R. 301 — 2 Bo. 380 — 4 Wheaton 294 — 15 Ves.jr. 329---i. John. Chan. Rep• 308.)
    3d. That the equity of the wife was no higher than that of the husband, and whatever affected his equity, equally affected hers; for the Act does not provide that the sum charged for equality of partition, shall retain its character of realty — as it does in sales for the purpose of division. And whenever realty is turned into personalty, by a judicial sale, there being no provision to the contrary, it assumes the character of personalty. (Exparte Bromfield, 1 Veseyjr. 443 — Mondey v. Mondey, 1 Vesey & Beame, 223 — Mills v. Dennis, 3 Johns. Cha„ Rep. 367 Ambler 417 — Do. 706.')
    
    4. The doctrine of equitable liens, as now existing in England, did not obtain there at the period of the Revolution. (Ambler 724 — 1 Brown G. 420.) It is founded upon the fact, that lands, in England, cannot be sold for debt. The policy of our law is quite different — our laws respecting registration render it inapplicable. In England, the rule has produced great confusion, and many of the States in this country have refused to adopt it.— CIS Veseyjr. SSI — 4 Wheaton 364 — 1 Dess. Chan. Rep. 503 — 7 Wheaton. 52 — 1 John. Chan. Hep. 308.)
    5. This Court is not precluded from looking into the evidence taken in the cause, and revising the decision thereon. An appeal in Chancery carries up the whole case as to the facts and the equity arising from them.
    
      6. That the bond of Jeffreys taken by Wynne, and the receipt ghen for the sum charged for equality of partition, discharged the lien, as thereby the nature of the debt was entirely altered. (2 Veseyjr. 543.)
    It was contended on the other side,
    1. That this Court could only decide upon matters of law, matter of fact, as well as matter of discretion, are not subject to its revision. This Court was therefore bound by the decision of the Court below, upon the fact of notice.
    
      2. In Equity, the vendor has a lien for the purchase money, whether he has taken a security for it or not.— It exists from the presumption of natural Equity, that no one will sell his land, and rely upon a promise for payment. A receipt being given for the purchase money, can make no difference, if the vendor has not actually received it.
    5. The only question is, had the Defendant notice of the charge. lie- certainly had constructive notice, for the partition is one of his title papers.
    4. That the Acts of Assembly made the sum given for equality of partition, a charge upon the more valuable dividends. It is a specific lien upon the land, in whosoever hands itgoes, similar to the case of a rent given for equality of partition. (Littleton, Sections 252, 253— Gilbert Tenures, 104, 105, Coke L. 196, 6.)
    5. This is a specific lien, and the land is liable, although the Defendant had not notice; for a specific lien is a charge upon the land, not upon the estate in the land, and follows it forever. The rule as to purchasers without notice, applies only t,o trusts — -not legal rights.
    
      
       In the reporta of Equity Cases, whenever the manner in which they are brought up is not mentioned, the reader will consider that they were removed under the sot of 1818, see., 5th,
    
   Hali Judge

delivered the opinion of a majority of the Court:—

The act of 1737, (ch. 274,) authorises the County Court to make division of the estates of intestates, aiul the Commissioners appointed by the Court for that purpose, are empowered to charge the more valuable dividend or dividends, with such sum or sums as they shall judge necessary, to be paid to the dividend or dividends of inferior value, in order to make an equal division.

I think the lands on which such sums are charged, are not only securities for the monies so charged, but are themselves the debtors. This appears to be just and fit, in a case where partition is made of lands between persons possessed of no other property. The law cannot contemplate the injustice of taking- property from one person and giving it to another, without an equivalent, or a sufficient security for it.

The Act above spoken of directs the Commissioners to make a return of their proceedings and appropriations, &c. to the Court by which they were appointed, which return and appropriation shall be certified to the Clerk, and enrolled in his office, and registered in the office of the County, where such lauds, &c. respectively lie ; and such return and appropriations, shall be binding among the claimants, their heirs,” &c.

This act also directs the money so charged, to be paid in twelve months after such return made.

A subsequent act, passed in the year 1801, (ch. 588.) gives further time to minors ; but the validity of the appropriation s made by the Commissioners, does not depend upon the payment or non-payment of the monies charged upon the larger dividends.

The Defendant, in his answer admits, that at the time he made the purchase, he knew that the charge on the land once existed, but he believed that it had been paid or settled. Whether he had express knowledge of that fact, or not, I think is immaterial, for the debt was a legal diario upon the land — and the fact of its existence was so blended and interwoven with the title to the land. .... that be could not enquire ¡ato, and examine the title, wilhouf perceiving it, for Jeffreys claimed directly under the partition and appropriation made by the Commissioners.

It is argued also for the Defendant, that this debt was discharged by the receipt given by Wynne, in the year tiili), in which it is stated, in substance, that the account is settled, and a bond taken for it.

T his was no discharge of the debt, which is a legal and express charge upon the land: but what is conclusive, is that the receipt was subsequent to the purchase by the Defendant — besides, he was not a party to it.

In point of fact, I think it a hard case upon the Defendant. Wynne, has certainly been guilty of neglect — ■ but Mrs. Wynne is the meritorious clai .«ant, and the debt, when recovered, ought to be secured for her benefit.

IIkkiiurkoN Judge, dissented, bat filed no opinion.

The following is the substance of the Decree in ibis cause:

Declare that the sum of Si047 62.1, allotted to the Complainant Susan was an express charge upon the land allotted to Marmadnke JV". Jeffreys, to which the said Susan was entitled, in the same manner, as to the real estate, in lien of which the same was charged, and that her right thereto was not affected by the receipt given, by the Plaintiff liobert. Declare, further, that the Defendant purchased with notice of the right of Susan, and that the lauds passed, subject to the charge for the said sum, and continue liable therefor. Declare that the Dm fondant pay into the office of the master, the said sum, with interest from the 1st April, 1816, and the costs of this suit, and in case of default, that the master sell, &c. Declare, also, that the Defendant, as well as William Boggd and William Wooten, securities for the appeal to this Court, are personally liable to the Plaintiffs, for the payment of the money above mentioned, and the Plaintiffs may, at their election, have execution against the Defendant and his sureties, or rely upon a sale of the land, &c. And let the said sum he held subject to be secured to the Plaintiff Susan, according to the direc tions of this Court — and retain the cause for such di - rections.  