I CHAPTER XII. OF THE VENDOR'S LIEN ON THE ESTATE SOLD FOR THE I. WHERE a vendor delivers possession of an estate to a purchaser, without receiving the purchase-money, equity, whether the estate be (a) (I) or be not (b) conveyed, and although there was not any special agreement for that purpose, gives the vendor a lien on the land for the money; so, on the other hand, if the vendor cannot make a title, and the purchaser has paid any part of the purchase-money, it seems that he has a lien for it on the estate, although he may have taken a distinct security for the money advanced (c) (II). (a) Chapman v. Tanner, I Vern. 267; Pollexfen v. Moore, 3 Atk. 272; and see 1 Bro. C. C. 302, 424; and 6 Ves. Jun. 483; Mackreth v. Symmons, 15 Ves. Jun. 329. (b) Smith v.Hibbard, 2 Dick. 730; Charles T. Andrews, 9 Mod. 152. (c) Lacon v. Mertins, 3 Atk. 1. (I) But note, that in Chapman v. Tanner, (See Ambl. 726, 6 Ves. Juń, 757) and Pollexfen v. Moore, there were special agreements that the vendor should keep the writings. Indeed, in the latter case, possession had not been delivered. See Mr. Sanders's note to the case in his edition of Atkins. (II) As to chattels capable of delivery, as timber felled, see ex parte Gwyne, 12 Ves. Jun. 379. But But equity will not raise this equitable lien in favour of a papist incapable of purchasing (d), for that would give him an interest in land. If a vendor take a distinct and independent security for the purchase-money, his lien on the estate is gone; such a security is evidence that he did not trust to the estate as a pledge for his money (e). Thus, upon the sale of an estate, the vendor accepted some stock for the money (f), with an agreement, that in case it did not within a limited time produce a sum named, the purchaser should make it up that sum. The stock proved deficient; and Sir William Grant held, that the vendor had no lien on the estate for the deficiency: he thought that the vendee could not have any motive for parting with his stock, but to have the absolute dominion over the land. It was impossible, his Honour said, that it could be intended that the vendor should have this double security, an equitable mortgage and a pledge, which latter, if the stock should rise a little, would be amply sufficient to answer the purchase-money. And the same rule must, it has been said, prevail where a vendor accepts a mortgage of another estate for the purchase-money, the obvious intention of burthening one estate being, that the other shall remain free and unincumbered (g); so, even where the vendor takes a mortgage of the estate sold for only part of the purchase money; because by taking a mortgage for part, he clearly evinces his election, that the estate should be charged with that part only (h). (d) Harrison v. Southcote, 2 Ves. 389. (e) See 6 Ves. Jun. 483; and see the observations of Lord Eldon on this case in 15 Ves. Jun. 318, 349 (f) Nairn v. Prowse, 6 Ves. Jun. 752; but see Lord Eldon's observations, post. (g) See Nairn v. Prowse; but see 15 Ves. Jun. 341. (h) Bond v. Kent, 2 Vern. 281; see 1 Scho, and Lef. 135. Lord Lord Eldon, however, has said, that it did not appear to him a violent conclusion as between vendor and vendee, that notwithstanding a mortgage, the lien should subsist (2). It must not, he added, be understood, that a mortgage taken is to be considered as a conclusive ground for the inference, that a lien was not intended, as he could put many instances, that a mortgage of another estate for the purchase-money, would not be decisive evidence of an intention to give up the lien, though in the ordinary case, a man has always greater security for his money upon a mortgage, than value for his money upon a purchase; and the question must be, whether, under the circumstances of that particular case, attending to the worth of that very mortgage, the inference arises. In the instance of a pledge of stock, does it necessarily follow that the vendor consulting the convenience of the purchaser, by permitting him to have the chance of the benefit, therefore gives up the lien which he has? The doctrine, as to taking a mortgage or pledge, would be carried too far, if it is understood as applicable to all cases, that a man taking one pledge, therefore necessarily gives up another, which must, his Lordship thought, be laid down upon the circumstances of each case, rather than universally (k). But it seems, that taking a covenant, bond, or note, for the purchase-money, will not affect the vendor's lien. This was settled by the case of Hearne v. Botelers (1), where a bond was taken for the money, and some of it remained unpaid, and the bond was lost; for the opinion of the court was to charge the defendants, in regard of the land in their possession, with the payment thereof; on the ground, it should seem, that taking a bond did not deprive (i) See 15 Ves. Jun. 341; and see Cowell v. Simpson, 16 Ves. Jun. 278, 280. () Mackreth v. Symmons, 15 Ves. Jun. 348, 349. (7) Cary's Rep. Cha. 25 ; and see Tardiffe v. Scrughan, 1 Bro, C.C. 422, cited; and Harrison v. South cote, 2 Ves. 389. the the vendor of his equitable lien; for unless he had such a lien, the loss of the bond would hardly be a ground to charge the money on the estate (m). So in Gibbons v. Baddall (n), it was said, that if A sells an estate, and takes a promissory note for part of the purchase-money, and then the purchaser sells to B, who has notice that A had not received all his purchase-money, the land in equity is chargeable in the hands of B, with the money due on the note. In this case, therefore, the existence of the equitable lien was considered as a point perfectly settled. But in Fawell v. Heelis (0), where a receipt was indorsed on the deed for the purchase money (I), although it was not actually paid, and the vendor took a bond for the purchasemoney, Lord Bathurst held that he had thereby departed with his lien. He said, he did not find an instance where a bond had been taken for the consideration money (p). It was evident the vendor had an opinion of the purchaser at the time, otherwise he would not have let the money remain in his hands. I consider it, he added, as a transaction distinct, and independent of the purchase: he lends him the money, and he chooses his security, and I think he must abide by it; therefore let the bill be dismissed. (m) But see 15 Ves. Jun. 338, 343, per Lord Eldon. (n) 2 Eq. Ca. Abr. 682, n. (b) to (D). Ex parte Peake, 1 Madd. 346. (0) Ambl. 724, 1 Bro. C.C. 421, n.; 2 Dick. 485. (p) Vide Hearne v. Botelers, and Gibbons v. Baddall, ubi supra. (I) This of course could not make any difference in the case, for a receipt for the purchase-money, although signed by the seller, is in equity of no avail if the money be not actually paid. See Coppin v. Coppin, 2 P. Wms. 291; but at law the receipt cannot be got over, Rowntree v. Jacob, 2 Taunt. 141, unless merely fraudulent, Henderson v. Wild, 2 Campb. 561; and in equity payment will be presumed after a great length of time, Bidlake v, Arundel, 1 Cha. Rep. 93. In a subsequent case (q), however, Lord Rosslyn was decidedly of opinion against the doctrine laid down by Lord Bathurst. After commenting on other cases, he said, the case of Fawell and Heelis remained: there Lord Bathurst doubted whether there was such an equitable lien; it became, therefore, of great consequence that it should be spoken to. It struck him always, he said, that there was such a lien, and that it was so from the foundation of the court. A bargain and sale must be for money paid. If an estate is sold, and no part of the money paid, the vendee is a trustee: then, if part be paid, was it not the same as to that which was unpaid? In the late case of Nairn v. Prowse (r), the Master of the Rolls seemed to incline to the same opinion. He said, that by conveying the estate without obtaining payment, a degree of credit was necessarily given to the vendee. That credit might be given upon the confidence of the existence of such a lien. The knowledge of that might be the motive for permitting the estate to pass without payment. Then it may be argued, that taking a note or bond cannot materially vary the case. A credit is still given to him, and may be given from the same motive; not to supersede the lien, but for the purpose of ascertaining the debt, and countervailing the receipt indorsed upon the conveyance. And in a case where a receipt was given for the whole purchase-money, but part was retained, and a promissory note given for it to a trustee for the vendor, there being debts affecting the estate, the amount of which was not ascertained, Lord Redesdale held, that it lies on the purchaser to shew that the vendor agreed to rest on the collateral security; prima facie the purchase-money is a lien on (9) Blackburn v. Gregson, 1 Cox, 90; 1 Bro. C. C. 420; and see Tardiffe v. Scrughan, ibid. 423, cited; and 15 Ves. Jun. 336, 337. (r) 6 Ves. Juo, 752, the |