upon the beneficial interest as in the vendee, and the legal title only as in the vendor. By construction the vendor holds the legal title in trust for the vendee.1 Equity proceeds, in personam, against the vendor and makes him a trustee, and then orders him to execute the trust by conveying the legal title to the person to whom he has agreed to convey it. The purchaser is in like manner a trustee of the purchasemoney, and the court will order him to pay it over, and receive a conveyance of the legal title to the land. And a fortiori, if the purchaser has paid the purchase-money the vendor becomes a mere trustee of the legal title for the purchaser; so, if the purchaser has paid part of the purchasemoney, the vendor becomes a trustee to the extent of the money paid. If the vendor does not own the land, or some part of that which he agrees to convey, and afterwards obtains the title, he will immediately become a trustee for the purchaser.5 This equity will not be affected by the death or bankruptcy of either party. If the vendor dies before he has conveyed the land, the legal title will descend to his heirs subject to the trust; and they or his legal representatives will be ordered to execute the trust. But the lien or trust 1 Wall v. Bright, 1 J. & W. 500; Green v. Smith, 1 Atk. 572; Davie v. Beardsham, 1 Ch. Ca. 39; Atcherley v. Vernon, 10 Mod. 518; McKay v. Carrington, 1 McLean, 50; Crawford v. Bertholf, Saxt. 458; Ten Eyck v. Simpson, 1 Sandf. Ch. 244; Kerr v. Day, 14 Pa. St. 112; Moore v. Burrows, 34 Barb. 173; Adams v. Green, ib. 176; Wickman v. Robinson, 14 Wis. 493; Conway v. Kinsworthy, 21 Ark. 9; Dana v. Petersham, 107 Mass. 598; Currie v. White, 45 N. Y. 822; Reed v. Lukens, 44 Pa. St. 200; Lamb v. Davenport, 1 Sawyer, 609; Potter v. Jacobs, 111 Mass. 32. 2 Green v. Smith, 1 Atk. 572; Pollexfen v. Moore, 3 Atk. 272; Dexter v. Stewart, 7 Johns. Ch. 52. & Waddington v. Banks, 1 Brock. 97; Fenno v. Sayre, 3 Ala. 458; Brown v. East, 5 Mon. 415; Payne v. Atterbury, Harring. Ch. 414; Neeson v. Clarkson, 4 Hare, 97. 4 Wythes v. Lee, 3 Drew. 396; Westmacott v. Robins, 4 De G., F. & J. 390. 5 Tyson v. Passmore, 2 Barr, 122; McCall v. Coover, 4 Watts & S. 151. Paul v. Wilkins, Toth. 106; Barker v. Hill, 2 Ch. R. 113; Winged v. will not exist where the purchaser by his own fault abandons the contract, or where the contract is for any cause illegal.2 If the purchaser abandons the contract, because the vendor cannot fulfil it as agreed upon, as if it is to give a good title, the trust or lien will not continue.3 § 232. Similar to this is the constructive lien or trust in favor of a vendor for his unpaid purchase-money; for the vendor of land has a lien on the land for the amount of the purchase-money, not only against the vendee himself and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase-money remains unpaid. To the extent of the lien, the vendee becomes a trustee for the vendor; and the vendee's heirs, and all other persons claiming under him or them with notice, are construed by courts of equity to be trustees. This doctrine is well established in the jurisprudence of England, and it has been recognized, and acted upon, in many of the United States. The principle upon which the lien depends Lefebury, 2 Eq. Ca. Ab. 32, pr. 43; Orlebar v. Fletcher, 1 P. Wms. 737; Bowles v. Bowles, 6 Ves. 95, n.; Whitworth v. Davis, V. & B. 545; Tiernan v. Roland, 15 Pa. St. 429; Rutherford v. Green, 2 Ired. Eq. 121; Jacobs v. Lake, ib. 286; Newton v. Swazey, 8 N. H. 9; Glaze v. Drayton, 1 Dev. 109. In Massachusetts, the Probate Court or the Supreme Judicial Court may authorize the executor or administrator, or the guardian of an insane person, to convey in such cases. Public Stat. 1882. 1 Dinn v. Grant, 5 De G. & Sm. 451. 2 Ewing v. Osbaldiston, 2 My. & Cr. 88. 8 Wythes v. Lee, 3 Drew. 396. 4 See Mackreth v. Symmons, 15 Ves. 329, where Lord Eldon cited and commented upon all the cases previous to that time. See s. c. 1 Lead. Ca. Eq. 336, where the later English cases are quoted and also the American cases. Lemon v. Whitely, 4 Rus. 423; Chapman v. Tanner, 1 Vern. 267; Blackburn v. Gregson, 1 Bro. Ch. 420; Burgess v. Wheat, 1 Eden, 211; 1 W. Black. 150. 5 In Maine the doctrine is entirely rejected as inconsistent with the registry laws and policy of the State: Philbrook v. Delano, 29 Me. 415. In New Hampshire the court has left it undecided: Arlin v. Brown, 44 N. H. 102, and see Buntin v. French, 16 N. H. 592. In Vermont the is this, that a person who has obtained the estate of another ought not, in conscience, to keep it, and not pay the considdoctrine was established in an able judgment by Ch. J. Redfield: Manly v. Slason, 21 Vt. 271, but abolished by Stat. 1851. In Massachusetts it is rejected: Ahrend v. Odiorne, 118 Mass. 261. In Connecticut it is undecided: Atwood v. Vincent, 17 Conn. 575. See Watson v. Wells, 5 Conn. 468; Dean v. Dean, 6 Conn. 285; Meigs v. Dimock, ib. 458; Chapman v. Beardsley, 31 Conn. 115. In Rhode Island it is recognized: Kent, Adm'r, v. Gerhard et ux. 12 R. I. 92. In New York it is well established: Stafford v. Van Renselaer, 9 Cow. 316; Garson v. Green, 1 Johns. Ch. 308; White v. Williams, 1 Paige, Ch. 502; Fish v. Howland, ib. 20; Warner v. Van Alstyne, 3 ib. 513; Shirly v. Sugar Ref. 2 Edw. Ch. 505; Dubois v. Hall, 43 Barb. 26; Warren v. Fenn, 28 ib. 333; Champion v. Brown, 6 Johns. 402. In New Jersey, also: Vandoren v. Todd, 2 Green, Ch. 397; Brinkerhoff v. Vansciven, 3 Green, Ch. 251; Herbert v. Scofield, 1 Stockt. Ch. 492. In Pennsylvania the doctrine is rejected, though there may be such a conditional title conveyed, as will give the vendor a preference for the purchase-money over all others claiming under the vendee: Irvine v. Campbell, 6 Binn. 118; Stouffer v. Coleman, 1 Yeates, 393; Kauffelt v. Bower, 7 Serg. & R. 64; Bear v. Whisler, 7 Watts, 147; Semple v. Burd, 7 Serg. & R. 286; Zentmyer v. Miltower, 5 Pa. St. 403; Stephens's App. 38 Pa. St. 9; Springer v. Walters, 34 Pa. St. 328; Hepburn v. Snyder, 3 Pa. St. 72; Megargel v. Saul, 3 Whar. 19; Cook v. Trimble, 9 Watts, 15; Heist v. Baker, 49 Pa. St. 9; Straus's App. ib. 353. In Delaware the point is undecided: Budd v. Basti, 1 Harr. 69. In Maryland it is well established: White v. Casanave, 1 Har. & J. 106; Ghiselin v. Ferguson, 4 Har. & J. 522; Pratt v. Van Wyck, 6 Gill & J. 495; Magruder v. Peter, 11 Gill & J. 217; Repp v. Repp, 12 Gill & J. 341; Moreton v. Harrison, 1 Bland, Ch. 491; Carr v. Hobbs, 11 Md. 285; Hummer v. Schott, 21 Md. 307; Hall v. Jones, ib. 439; Bratt v. Bratt, ib. 578. In Virginia it was long acted upon: Graves v. McCall, 1 Call, 414; Handley v. Lyons, 5 Munf. 342; Duvall v. Bibb, 4 Hen. & M. 113; Hatcher v. Hatcher, 1 Rand. 53; Redford v. Gibson, 12 Leigh, 332. But it is now abolished by the code: Yancy v. Manck, 15 Gratt. 300; Hempfield R. R. Co. v. Thornbury, 1 West Va. 261. In North Carolina, after being acted upon for some time, it was overruled: Cameron v. Mason, 7 Ired. Eq. 180; Gabee v. Sneed, 1 Dev. & B. 333; Wamble v. Battle, 3 Ired. Eq. 182; Henderson v. Burton, ib. 259. In South Carolina it was never acted upon: Wragg v. Comptroller Gen. 2 Des. 509. In Georgia it is acted upon: Marine Fire Ins. Co. v. Early, Charl. 279; Hampden v. Miller, Dud. 120; Mounce v. Byars, 16 Ga. 469; Chance v. McWharter, 26 Ga. 315; Stile v. Griffin, 27 Ga. 504; Mims v. Lockett, 23 Ga. 237; Mims v. Macon and Western Railroad, 3 Kelly, 333. Also in Florida: Woods v. Bailey, 3 Fla. 41. And so in Alabama: Burns v. Taylor, 23 Ala. 255; Haley v. Bennett, 5 Porter, 452; Roper v. eration money in full; and a third person, who receives the estate with full knowledge that it has not been paid for, ought not, as a matter of equity, to be allowed to keep it without paying for it. It will at once be seen, that, as be McCook, 7 Ala. 318; Griffin v. Camack, 36 Ala. 695. So in Mississippi: Trotter v. Erwin, 27 Miss. 772; Stewart v. Ives, 1 Sm. & M. 197; Tanner v. Hicks, 4 Sm. & M. 294; Upshaw v. Hargrave, 6 Sm. & M. 280; Dunlop v. Burnett, 5 Sm. & M. 702; Servis v. Beatty, 32 Miss. 52. It is established in Texas: Pinchain v. Collard, 13 Tex. 333; Wheeler v. Lane, 21 Tex. 583; McAlpin v. Burnett, 23 Tex. 649. So in Arkansas: English v. Russell, Hemp. 35; Scott v. Orbinson, 2 Ark. 202; Shall v. Biscoe, 18 Ark. 142. So in Missouri: Marsh v. Turner, 4 Mo. 53; McKnight v. Brady, 2 Mo. 110; Davis v. Lamb, 30 Mo. 441; Bledsoe v. Games, ib. 448; Delassus v. Poston, 19 Mo. 425. So in Tennessee: Brown v. Vanlier, 7 Humph. 239; Eskridge v. McClure, 2 Yerg. 84; Marshall v. Christmas, 3 Humph. 616; Campbell v. Baldwin, 2 Humph. 248; Uzzell v. Mack, 4 Humph. 319; Medley v. Davis, 5 Humph. 387; Norvell v. Johnson, ib. 489; Taylor v. Hunter, ib. 569. So in Kentucky: Muir v. Cross, 10 B. Mon. 277; Fowler r. Rust, 2 A. K. Marsh. 294; Taylor v. Alloway, 2 Litt. 216; Mosely v. Garrett, 1 J. J. Marsh. 212; Richardson v. Baker, 5 J. J. Marsh. 323; Cox v. Fenwick, 3 Bibb, 183. So in Ohio: Williams v. Roberts, 5 Ohio, 35; Tiernan v. Bean, 2 Ham. 383; Magham v. Coombs, 14 Ohio, 428; Neil v. Kinney, 11 Ohio St. 58. So in Indiana: McCarty v. Pruet, 4 Ind. 46; Lagow v. Badollet, 1 Blackf. 416; Evans v. Goodlett, ib. 246; Merritt v. Wiles, 18 Ind. 171; Cox v. Wood, 20 Ind. 54. So in Illinois: Trustees v. Wright, 11 Ill. 603. So in Michigan: Sears v. Smith, 2 Mich. 243; Carroll v. Van Renselaer, Harring. Ch. 225. Also in Iowa: Pierson v. David, 1 Io. 23; Rakestraw v. Hamilton, 14 Io. 147; Patterson v. Linder, ib. 414; Tupple v. Viers, ib. 515; Grapengether v. Fejervary, 9 Io. 163; Hays v. Horine, 12 Io. 61. So in Wisconsin: Toby v. McAllister, 9 Wis. 463. Also in Minnesota: Daughaday v. Payne, 6 Minn. 443. In Kansas there is no lien: Simpson v. Munder, 3 Kansas, 172. And so in Nebraska: Edminster v. Higgins, 6 Neb. 265. The lien exists in California: Truebody v. Jacobson, 2 Cal. 269; Taylor v. McKinney, 20 Cal. 618; Baum v. Grigsby, 21 Cal. 172; Sparks v. Hess, 15 Cal. 186; Walker v. Sedgwick, 8 Cal. 398; Cahoon v. Robinson, 6 Cal. 225; Salmon v. Hoffman, 2 Cal. 138; Burtt v. Wilson, 28 Cal. 632. The same doctrine is held in the courts of the United States: Chilton v. Braiden, 2 Black, 458; Gilman v. Brown, 1 Mason, 191; 4 Wheat. 255; Bayley v. Greenleaf, 7 Wheat. 46; Bush v. Marshall, 6 How. 284; Galloway v. Finley, 12 Pet. 264; McLearn v. McLellan, 10 Pet. 640; Cole v. Scott, 2 Wash. 141. 1 Hughes v. Kearney, 1 Sch. & Lef. 135; Chilton v. Braiden, 2 Black, tween the parties, this lien is founded in natural justice.1 The civil law gave a lien on both real and personal property to the vendor for the purchase-money, and the principle was early introduced into English equity, as to real estate.2 Courts administer the equity by converting the purchaser into a trustee. They, in effect, say, that if one conveys his land and takes no security for the purchase-money, the purchaser shall be a trustee of the land for the vendor until it is paid.1 § 233. It has been objected that the creation of this lien or trust by courts of equity is a repeal of the statute of frauds. It is answered, that the raising of such a trust is no more in contravention of the statute than the creation of any other resulting or constructive trust by operation of law upon the acts and contracts of parties, where they do not contemplate or intend a trust.5 It is further objected, in the United States, that the raising of such trusts is contrary to the policy of the registry laws which require all deeds and liens to be matter of record. But, as between the parties, the raising of a trust to secure the purchase-money is no more against the policy of the registry laws than is the raising of a resulting trust to secure the actual purchaser, where the deed is taken in the name of another, or the raising of a constructive trust where one man has defrauded another of his title. In either case there is a secret trust that does not appear upon the records of the registry. So, as against third persons who 1 Inst. Lib. 2, tit. 1, § 41; Blackburn v. Gregson, 1 Cox, 100; Chapman v. Tanner, 1 Vern. 267. 2 Mackreth v. Symmons, 15 Ves. 337; Dig. Lib. 18, tit. 1, c. 19, 22, 53; Domat, B. 3, tit. 1, § 5, art. 4. 315. 8 Ibid.; 4 Ibid. Blackburn v. Gregson, 1 Bro. Ch. 420; Walker, Am. Law, Mackreth v. Symmons, 15 Ves. 329; Manly v. Slason, 15 Vt. 271. |