the lands. In this case, his Lordship said, that the pur chaser's note was nothing but a mere memorandum, put into the hands of a trustee, to enable the purchaser first to pay off incumbrances, and then to be subject to an account, and the balance only to be received by the vendor. It cannot be considered that the vendor relied on it as a security. Suppose bills given as part of the purchase-money, and suppose them drawn on an insolvent house, shall, his Lordship asked, the acceptance of such bills discharge the vendor's lien? They are taken, he added, not as a security, but as a mode of payment (s). And in a late case, where the purchase-money was paid by bills drawn by the purchaser and accepted by him and his partner, payable to the seller's order, the Master of the Rolls determined that the lien was not gone (t). It was insisted, that by taking bills accepted by the partnership, the vendor got the security of a third person, which must be considered as a substitution for the lien. His honour observed, that what might be the effect of a security, properly so denominated, of a third person, had never, he believed, been absolutely determined; but he perfectly concurred in the opinion expressed by Lord Redesdale in Hughes v. Kearney (u), that bills of exchange are to be considered not as a security, but merely as a mode of payment. That is obvious from attending to the nature of a bill of exchange; it is an order by the drawer for the payment of money which he has in the hands of the drawee to the holder of that bill. The acceptor, by his acceptance, acknowledges that he has money belonging to the drawer in his hands, and engages to have that money forthcoming according to the requisition of the bill. The acceptor is (s) Hughes v. Kearney, 1 Scho. and Lef. 132. (t) Grant v. Shills, 2 Ves. and Bea, 306. (u) 1 Scho, and Lef. 132. See 136. never considered as a surety for the debt of another. By accepting he admits himself to be a debtor to the drawer. The subject of the bill is, in contemplation of law, the drawer's own money, which he authorizes the creditor to receive instead of receiving it himself, and afterwards handing it over to such creditor. And in such cases it is not important that the note or bill has been negotiated (x). to The same point seems to have been decided in Comer v. Walkley (y). A trustee sold an estate for 720l.: 6007. was left in the purchaser's hands as an indemnity against an annuity; and a deed was entered into between him and the trustee, whereby he covenanted to pay interest on the 600%. and when the annuity should cease or be discharged, pay the money to the trustee. By several conveyances, &c. the estate became again vested in trustees, upon trust to sell; and they sold the estate to a purchaser, who objected to complete his contract without the concurrence of the person entitled to the residue of the 600l. then unpaid. Two bills were filed, one by the person entitled to the residue of the 600l. against the purchaser and others, for payment of it; and the other by the purchaser, who had been in possession 22 years, for a specific performance, which was accordingly decreed, and his costs in both causes were allowed. The proper accounts of the personal estate were directed to be taken in the first cause; but the question, out of what estates any deficiencies should be made good, was reserved: so that it does not appear that the court held the money to be a lien on the land any further than by giving the purchaser his costs in both causes; which circumstance alone is, however, conceived to be decisive. And the question has received the same decision in (x) Ex parte Loaring, 2 Rose, 79. (y) Reg. Lib. A. 1784, fol. 625; vide supra, p. 448. 2 H a recen a recent case before Lord Eldon, after an elaborate review of all the authorities (2). Upon the whole, therefore, it seems quite clear, that taking a covenant, bond, or note, for the purchase-money, or any part of it, will not discharge the vendor's equitable lien on the estate. And it seems that the same rule must prevail although the estate is sold for an annuity, and a covenant, bond, or note is taken for securing the payment of it (a). In Elliot v. Edwards (b), the vendor assigned a leasehold estate to the purchaser, upon payment of part of the purchase-money. The purchaser and another person as his surety, covenanted for payment of the residue of the purchase-money; and in the assignment was contained a proviso, that the estate should not be assigned until all the money was duly paid, without the joint consent of the vendor and the surety. Lord Alvanley was of opinion, that the vendor had an equitable lien, and that till the money was paid, equity would not compel a specific performance of any agreement by the assignee for sale of the estate. In Blackburn v. Gregson (c), Lord Rosslyn, as we have seen, said, that if an estate is sold, and no part of the money paid, the vendee is a trustee: from which it might perhaps be inferred, that a vendor has always an equitable lien where no part of the purchase-money is paid: but this cannot be considered as a general rule; it being clear, that a vendor may depart with his lien, (z) Mackreth v. Symmons, 15 Ves. Jun. 329. The case has since been reheard by the Lord Chancellor, with the assistance of two judges, and now stands for judg ment. (a) See Tardiffe v. Scrughan, 1 Bro. C. C. 423, cited; but see Mackreth v. Symmons, 15 Ves. Jun. 329, which, however, was a very particular case. (b) 3 Bos. and Pull. 181. although although no part of the purchase-money be paid. Indeed the same rules seem to prevail on this subject, whether the whole, or only part of the purchase-money, remains unpaid. Where a security by bond or note is given for the purchase-money, and it is intended that the vendor shall not have a lien on the estate for the money, a declaration to that effect should be inserted in the conveyance; which would effectually prevent equity from raising a lien upon the presumed intention of the parties. II. It must be remarked, that although equity raises this lien in favour of a vendor, yet it is not extended to third persons; that is, where the vendor is satisfied out of the personal estate, of the purchaser, in exclusion of a third person, that person cannot resort to the equitable lien of the vendor on the estate; or, in other words, cannot require the purchased estate and the personal estate to be marshalled. Thus in the case of Coppin v. Coppin (d), a younger brother purchased an estate of his elder brother, but part of the purchase-money was not paid. The purchaser made his will, charging his estate with great legacies; but the will was attested by only two witnesses; afterwards the purchaser died, leaving his brother, the vendor, his heir and executor; and it was holden by Lord Chancellor King, that he had an equitable lien on the land; that he was entitled to retain the purchase-money out of the assets; and that the legatees could not stand in his place with respect to the equitable lien. There is an important case on this subject, which de (d) Coppin v. Coppin, Sel. Cha Ca. 28; 2 P. Wms. 291. mands particular attention. The case to which I allude is Pollexfen v. Moore (e). It appeared that Thomas Moore purchased an estate from Pollexfen, and had not paid all the purchase-money; he devised the estate to Kemp, and, subject to some legacies, made Kemp his residuary legatee and executor. Kemp wasted the personal estate and died; whereupon the purchased estate descended to Boyle Kemp, his son and heir at law. Pollexfen filed his bill for payment of the remainder of the purchase-money. Mrs. Moore, a legatee in Thomas Moore's will, brought a cross-bill, praying that if the purchase-money should be paid out of the personal estate, she might stand in the purchaser's place as to his lien on the land. Lord Hardwicke admitted that Pollexfen had a lien on the estate for the remainder of the purchasemoney. But he said, that this equity would not extend to a third person, but was confined to the vendor and vendee only; and if the vendor should exhaust the personal assets of Moore and Kemp, the defendant would not be entitled to stand in his place, and to come upon the purchased estate in the possession of Kemp's heir. But then the heir should not avail himself of the injustice of his father, who had wasted the assets of Moore, which should have been applied in paying the defendant's legacy. Therefore, Lord Hardwicke added, that the estate which had descended from Kemp, the executor of Moore, upon Boyle Kemp, came to him liable to the same equity as it would have been against the father, who had misapplied the personal estate; and in order to relieve Mrs. Moore, he would direct Pollexfen to take his satisfaction upon the purchased estate, because he had an equitable lien both upon the real and personal estate; and would leave this last fund open, that Mrs. Moore, who could at (e) 2 Atk. 272. most |