most be considered only as a simple contract creditor, might have a chance of being paid out of the personal

assets.

The decree was general, that the residue of the purchase-money and interest should in the first place be paid out of the personal estate of the said Thomas Moore; but that in case it should appear that Moore did not leave assets to pay what should be so due for the residue of the purchase-money, and all his other debts, legacies, and funeral expences; or if the personal estate of Moore was not then sufficient, by reason that the assets of Kemp were not sufficient to answer such part thereof as came to his hands, then such deficiency, "so far as the personal estate of the said Thomas Moore shall be applied in payment of the said purchase-money, (I) should be made good out of the purchased estate, and a competent part thereof was decreed to be sold accordingly.

Now in this case Lord Hardwicke, in giving judgment, clearly agreed with the decision in Coppin v. Coppin, that this equity did not extend to a third person. According to the judgment, his Lordship deviated from that rule in the case before him, on the ground of fraud. But Lord Hardwicke's decree cannot be satisfactorily accounted for on this narrow ground. The decree was, that if Thomas

(I) The decree has generally been considered at variance with the judgment. In the first edition of this work, the author stated, that he could not see the principle upon which the decree was made, if it were correctly stated, that if the purchaser did not leave assets to pay the pur. chase-money, and all his debts, funeral expenses, and legacies, the deficiency was to be made good out of the purchased estate. See 3 Atk. 273, n. 3. last edition. Upon searching the Register's book, it appears that the decree was qualified as stated in the text; and this emendation, with the observations in the text, will, it is hoped, conduce to a right under. standing of this case. See Reg. Lib. B. 1745, fol. 283,

Moore (the original purchaser) did not leave assets to pay the residue of the purchase-money, and all his debts, funeral expenses, and legacies, then the purchased estate and the personal estate should be marshalled, so as to let in the simple contract creditors and legatees. This could not be on account of the fraud in Kemp, the devisee and

executor.

It appears by the register's book, that Pollexfen had not delivered the title deeds and conveyance of the estate to the purchaser, but had by agreement kept them in his own custody as a security for the purchase-money unpaid; and he strongly insisted by his bill, that he never intended 'the deeds to have operation till all the money was paid (f). And this, it is apprehended, must have been the ground on which the decree was pronounced. The seller had an equitable mortgage on the estate, and the case therefore came within the gereral rule, as to marshalling (g).

Thus explained, the case of Pollexfen v. Moore does not in the least clash with Coppin v. Coppin, but appears to establish an important distinction on this subject, viz. that where the purchaser has an equitable mortgage on the estate, or in case of fraud, the purchased estate and the persona estate may be marshalled in favour of simple contract credi, tors and legatees.

The general question under discussion arose in a case before Lord Eldon, but it was not necessary to decide it, Pollexfen v. Moore, as reported, was the only case cited, The Lord Chancellor assimilated the lien to a charge, and said, that the cases of marshalling seem to have gone this

(f) Reg. Lib. B. 1745, fol, 283. (g) Lutkins v. Leigh, For. 53; Aldrich v.Cooper, 8 Ves.Jun. 397. In my copy of Forrester, Holdsworthy Holdsworth, Hill, 23 Geo.

III. on appeal from the Rolls, is referred to; and see O'Neal v. Mead, 1 P. Wms. 693, and the cases in the note,

length

length: that, where there is a charge upon an estate descended, a legatee shall stand in the place of the person having that charge, resorting to the personal estate. His Lordship, however, gave no opinion upon the point, although it is clear that the inclination of his opinion was in favour of the legatee under the general rule (). In a still later case the very point came before the Master of the Rolls, and called for a decision (i). The only case cited was Pollexfen v. Moore, as reported in Atkins. His Honour said, that it was a very obscure report; and it had perplexed him very much formerly. The decision was against that dictum of Lord Hardwicke. This could not be distinguished from the common case of marshalling ; that a person having resort to two funds shall not by his choice disappoint another, having one only: and a decree was pronounced accordingly.

The reader will observe, that the case of Coppin v. Coppin was not cited in either of the foregoing cases; and should the observations which have been made on Pollexfen v. Moore be thought correct, it would seem that Lord Hardwicke's decision was not in opposition to his dictum in the same case, expressive of the rule established by Lord Chancellor King. Perhaps the common case of marshalling may be thought not to apply to the point in question, when it is considered that the equitable lien was originally raised by the construction of equity in favour of the vendor only, and not in favour of third persons. It seems to have been thought in Coppin v. Coppin, and apparently with some reason, that extending the vendor's lien to third persons would be breaking in upon the statute of frauds. The general rule as to marshalling applies to cases where the

(h) See Austen v. Halsey, 6 Ves. Jun. 475; and see Cox's n. (1) to 2 P. Wms. 295.

(i) Trimmer v. Bayne, 9 Ves. Jun. 209; and see Headley v. Roadhead, Coop. 50.

2 H 4

person

person resorting to the personal estate has an actual charge or lien on the real estate: but in this case, if equity first deems the purchaser a trustee for the vendor as to so much of the estate as will satisfy the purchase-money unpaid, and then permits a disappointed legatee to stand in the place of the vendor, it is creating a charge on the land in direct opposition to the statute of frauds. On sale of the estate, the purchase-money becomes a debt payable out of the purcha scr's personal estate; and the equitable lien ought, it is conceived, to be extended to only so much of the purchased estate as the personal estate is insufficient to answer. The vendor has not an original charge on the estate, but only an equity to resort to it, in case the personal estate prove deficient. In this view of the case an independent substantive charge on the land is, in fact, created by equity in favour of a legatee, although, if the legacy was actually imposed on the estate by a will not duly executed according to the statute of frauds, the court is bound to say, that the will cannot be read as to the charge.

It is with great deference that these observations are submitted to the reader, after the high opinions which have been given upon this point; but as the case of Coppin v. Coppin was not cited in the recent cases, and the effect of a decision overruling that of Lord Chancellor King, does not appear to have presented itself to the mind of the court, it still seems open to contend, that the equity under consideration cannot be extended to a third person, unless by reason of a fraud, or on the ground of the vendor having an equitable mortgage on the estate.

Since these observations were written, Lord Eldon, in de ciding the general question of lien, observed that he had some doubt upon another point, whether the court will in case of the death of the vendee marshal the assets, so as to throw the lien on the purchased estate. It has been often said, and the case of Coppin y. Coppin, stated as an autho

rity, that a court will not do that. The Lord Chancellor in his judgment takes no notice of that point. In that case the heir happened to be the heir of the vendee, so that the estate was at home, and it was held that being also the executor, he was entitled to retain the purchase-money out of the personal assets. That decision requires a good deal of consideration. If the estate had been in a third person, the general doctrine as to a person having two funds to resort to, might be thought to have an immediate application, and the express terms of the decrec in Pollexfen v. Moore, might be found very inconsistent with it (j). On a subsequent occasion, Lord Eldon observed, (in allusion to Lord Hardwicke's observation in Pollexfen v. Moore, before noticed), that if the meaning was that he (Lord H.) would follow the case of Coppin v. Coppin, and that if the vendor exhausted the personal assets, the legatee of the purchaser should not come upon the estate, there is great difficulty in applying the principle, as it would then be in the power of the vendor to administer the assets as he pleases: having a lien upon the real estate to exhaust the personal assets, and disappoint all the creditors; who, if he had resorted to his lien, would have been satisfied, and in that respect, with reference to the principle, the case is anomalous (k).

III. The observation of Lord Hardwicke before noticed, that this equity would not extend to a third person, person, but was confined to the vendor and vendee only, is frequently adduced to prove, that the lien does not exist when the estate passes into the hands of a third person; but by the latter part of the same passage (1), it clearly appears, that this was not Lord Hardwicke's meaning; and in Walker v. Pres

(j) 15 Ves. Jun. 338, 339.

(), 15 Ves. Jun. 345.

(1) Vide supra,, R. 468.