take the land with notice that the purchase-money is unpaid, the policy of the registry laws applies in the same manner that it applies to other unrecorded deeds or liens.1 Thus, if a second purchaser or mortgagee has notice of a prior sale or mortgage for a valuable consideration, he cannot, by putting his deed or mortgage first on record, deprive the prior purchaser or mortgagee of his title or security.2 It is, however, true that many courts have looked upon this trust with disfavor, although they have recognized its existence, and some States have formally abolished it by statute. While other courts deem it highly equitable, and eminently consistent with the most perfect ideas of moral justice.5

§ 234. In most cases the cestui que trust has an equitable estate in the land to which his trust attaches, an estate which he may sell, assign, or devise; but a vendor having only a lien for his purchase-money, has no estate in the land. It is neither jus in re nor jus ad rem. It is the mere possibility of a right, until it is established by a final decree of a court in each case. It is not a direct trust in the land itself, but a collateral trust for the security of the debt. It is in fact a remedy for a debt, and not a right of property. It follows, that the remedy can be enforced only so long as the debt can be enforced; that where an action for the purchase-money is gone, the right to enforce the lien, or the lien itself, is gone also. This lien or trust continues so long as the purchasemoney remains unpaid, or so long as an action can be maintained for its collection. If the action is barred by the statute

1 Manly v. Slason, 21 Vt. 271.

2 Bayley v. Greenleaf, 7 Wheat. 51; Conover v. Warren, 1 Gil. 502; Brawley v. Catron, 8 Leigh, 527; Moore v. Halcombe, 3 Leigh, 600. 8 Vermont and Virginia, ut sup.

4 Ibid.

5 Manly v. Slason, 21 Vt. 278.

6 Gilman v. Brown, 1 Mason, 21; 1 Lead. Ca. in Eq. 272-275; Williams v. Young, 17 Cal. 403; 21 Cal. 227.

of limitations, the remedy to enforce the lien is gone also.1 In this respect the vendor's lien differs from a mortgage, which may be enforced against the land after all right to enforce the debt against the mortgagor is barred by the statute of limitations, or by his discharge in Bankruptcy. If a cestui que trust conveys his equitable estate in land, he will have the same lien upon it for the purchase-money as in the case of a legal estate.2

4

§ 235. The lien exists, notwithstanding the deed recites 3 or acknowledges that the consideration is paid, and notwithstanding a receipt of the payment is indorsed upon the back of the deed,5 if in fact it is not paid. And if the consideration is not to be paid until after the death of the grantor, and then only upon a contingency, as if no claim for dower is made in the mean time, the lien will arise; but if the consideration of the sale is something other than money, as if the vendor makes the sale for the consideration of his future support, no lien will arise; nor if in consideration that his debts

1 Borst v. Corey, 15 N. Y. 505; Sheratz v. Nicodemus, 7 Yerg. 9; Trotter v. Erwin, 27 Miss. 772; Addams v. Hefferman, 9 Watts, 530; Alexander v. McMurray, 8 Watts, 504. But in Maryland it was held to be a direct trust and property in the land, like a mortgage, which could be enforced after the personal obligation of the vendee was gone. Moreton v. Harrison, 1 Bland, 491; Lingan v. Henderson, ib. 236. And see Relfe v. Relfe, 34 Ala. 500.

2 Iglehart v. Armiger, 1 Bland, 519; Galloway v. Hamilton, 1 Dana, 576; Lignon v. Alexander, 7 J. J. Marsh. 288; Stewart v. Hatton, 3 J. J. Marsh. 178. But see Bayley v. Greenleaf, 7 Wheat. 46; Schnebly v. Ragan, 7 Gill & J. 120.

8 Thornton v. Knox, 6 B. Mon. 74; Mackreth v. Symmons, 15 Ves. 337; Hughes v. Kearney, 1 Sch. & Lef. 135; Winter v. Anson, 3 Russ. 488; 1 Sim. & S. 434; Saunders v. Leslie, 2 B. & B. 514.

4 Gilman v. Brown, 1 Mason, C. C. 214; Sheratz v. Nicodemus, 7 Yerg. 9; Ewbank v. Poston, 5 Mon. 287; Redford v. Gibson, 12 Leigh, 344; Tribble v. Oldham, 5 J. J. Marsh. 144.

5 Ibid.

Redford v. Catron, 8 Leigh, 528.

7 Arlin v. Brown, 44 N. H. 105; McCandlish v. Keen, 13 Gratt. 615; Brawley v. Catron, 8 Leigh, 528; McKillip v. McKillip, 8 Barb. 552.

are paid; nor if the amount of the consideration is uncertain and unliquidated.2 Nor if it appears that the consideration is that the vendee shall enter into covenants to do certain things. If a note or bond is taken for the consideration, and includes anything other than the price of the land sold, the lien will not attach,4

§ 236. Where a vendor takes security for the purchasemoney, it is often a difficult question to determine whether he has thereby abandoned or waived his lien. Much of the litigation upon vendor's liens has arisen over this question, whether the lien was abandoned or not by the parties. Of course, it is a pure question of fact or intention. By the civil law, the taking of any kind of security was an abandonment of the lien upon the property; this rule has not prevailed in England. The rule in England is, that prima facie the vendor has a lien for the purchase-money: the presumption in favor of this lien continues until it is displaced by satisfactory evidence that the lien has been abandoned or extinguished. The burden is on the vendee to repel the presumption. The taking of security by the vendor is evidence upon that question, more or less satisfactory according to the nature of the security taken and the circumstances under which it is taken.5 It has been held that the taking of a mortgage on another estate was not conclusive evidence that the lien was abandoned; and so, bills or notes indorsed by 2 Ibid.

1 Chapman v. Beardley, 3 Conn. 115.

3 Buckland v. Pocknell, 13 Sim. 406; Dixon v. Gayfere, 17 Beav. 421; 21 Beav. 118; Clarke v. Boyce, 3 Sim. 499; Parrott v. Sweetland, 3 My. & K. 655. In Alabama the lien was held to arise in case of an exchange of lands. Burns v. Taylor, 23 Ala. 255.

McCandlish v. Keen, 13 Gratt. 605; James v. Bird, 8 Leigh, 51.

5 Nairn v. Prowse, 6 Ves. 759; Mackreth v. Symmons, 15 Ves. 342; Garson v. Green, 1 Johns. Ch. 308; Lewis v. Caperton, 8 Gratt. 148; Plowman v. Riddle, 14 Ala. 169; Hughes v. Kearney, 1 Sch. & Lef. 136; Saunders v. Leslie, 2 B. & B. 514; Bradford v. Marvin, 2 Fla. 463.

Ibid.; Saunders v. Leslie, 2 B. & B. 514.

third persons, or bonds with a surety, are not necessarily conclusive evidence that the vendor in taking them waives his lien.1 It may be, in such cases, that the vendor accepted them as evidences of the amount of the purchase-money and debt, or as security in addition to his lien. But if the security taken is totally distinct and independent, it will be very strong evidence that it was intended to be substituted in place of the lien; and if it is in any way inconsistent with the continued existence of the lien, it will, of course, be conclusive evidence that the lien was abandoned or extinguished. Lord Eldon, after a careful review of the authorities, came to the conclusion that every case depended upon its own peculiar facts and circumstances; that different judges would have determined the same case differently; and that there was no general rule that was satisfactory; and he adds, "If I had found it laid down in distinct and inflexible terms, that when the vendor takes security for the consideration he has no lien, that would be satisfactory." 4

§ 237. In the United States, the rule that Lord Eldon said would be satisfactory substantially prevails. Thus, if the vendor does any act which manifests an intention to rely upon any security independent of the lien, he will be held to

1 Hughes v. Kearney, 1 Sch. & Lef. 135; Gibbons v. Baddall, 2 Eq. Ab. 682; Grant v. Mills, 2 Ves. & B. 306; Cooper v. Spottiswood, Taml. 21; Ex parte Peake, 1 Madd. 349; Ex parte Loring, 2 Rose, 79; Saunders v. Leslie, 2 B. & B. 514; Winter v. Anson, 3 Russ. 488; 1 S. & S. 434; Fawell v. Heelis, Amb. 724; Frail v. Ellis, 17 Eng. L. & Eq. 457; Buckland v. Pocknell, 13 Sim. 406; Blair v. Bromley, 5 Hare, 542; 2 Phill. 354; Hewitt v. Loosemore, 9 Hare, 449; Kyles v. Tait, 6 Gratt. 44; Blackburn v. Gregson, 1 Bro. Ch. 420; Coppin v. Coppin, 2 P. Wms. 291; Clark v. Royle, 8 Sim. 499; Elliott v. Edwards, 3 Bos. & P. 181.

2 Ibid.; Gilman v. Brown, 1 Mason, 191; Cood v. Pollard, 9 Price, 544; 10 Price, 109; Parrott v. Sweetland, 3 My. & K. 655; Nairn v. Prowse, 6 Ves. 752; Mackreth v. Symmons, 15 Ves. 342.

8 Manly v. Slason, 21 Vt. 271; Hallock v. Smith, 3 Barb. 267; Ex parte Parkes, 1 Glyn & Jam. 228.

Mackreth v. Symmons, 15 Ves. 342.

3

have waived it; as if he accept a mortgage on other property, or a bond or note with a third person as surety or indorser, or if he takes a pledge of stock as collateral," he will be held to have waived his lien. So, if he takes a mortgage on the same land sold for part of the purchase-money, or for the whole, he will be held to have waived his lien for the remainder. But in these cases the presumption that the vendor intended to waive his lien by taking such securities may be rebutted by any satisfactory evidence that it was not intended that the lien should be waived.8 On the other hand, the presumption of a lien may be rebutted, though no security is taken, by satisfactory evidence that it was intended that the

1 Blackburn v. Gregson, 1 Bro. Ch. 424, and notes by Perkins; Buntin v. French, 16 N. H. 592; Coit v. Fougera, 36 Barb. 195; Griffin v. Blanchard, 17 Cal. 70; Phelps v. Conover, 25 Ill. 309; Selby v. Stanley, 4 Minn. 65; Hane v. Van Deusen, 32 Barb. 92; Parker v. Sewell, 24 Tex. 238; Dibble v. Mitchell, 15 Ind. 435.

2 Richardson v. Ridgely, 8 Gill & J. 87; White v. Dougherty, 1 Mart. & Y. 309; Young v. Wood, 11 B. Mon. 123; Mattix v. Weand, 19 Ind. 151; Harris v. Harlan, 14 Ind. 104; Shelby v. Perrin, 18 Tex. 515; Camden v. Vail, 23 Cal. 633; Hadley v. Pickett, 25 Ind. 450.

8 Boon v. Murphy, 6 Blackf. 272; Williams v. Roberts, 5 Ohio, 35; Mayham v. Coombes, 14 Ohio, 428; Wilson r. Graham, 5 Munf. 297; Francis v. Hazelrigg's Ex'rs, Hardin, 48; Way v. Patty, 1 Carter, 102; Burger v. Potter, 32 Ill. 66; Sears v. Smith, 2 Mich. 243; Porter v. Dubuque, 20 Io. 440.

4 Foster v. Trustees, 3 Ala. 302; Gilman v. Brown, 1 Mason, 191; 4 Wheat. 255; Marshall v. Christmas, 3 Humph 616; Burke v. Gray, 6 How. (Miss.) 527; Conover v. Warren, 1 Gilm. 498; Bradford v. Marvin, 2 Fla. 463.

5 Lagow v. Badollet, 1 Blackf. 416.

Little v. Brown, 2 Leigh, 355; Hadley v. Pickett, 25 Ind. 450. But see to the contrary, Boos v. Ewing, 17 Ohio, 520; Baum v. Grigsby, 21 Cal. 172.

7 Brown v. Gilman, 4 Wheat. 291; Fish v. Howland, 1 Paige, 30; Phillips v. Saunderson, 1 Sm. & M. 465. Even if the mortgage is void. Camden v. Vail, 23 Cal. 633; Way v. Patty, 1 Ind. 102

8 Mims v. Macon and Western R. R. 3 Kelly, 333; Campbell v. Baldwin, 2 Humph. 248; Kyles v. Tait, 6 Gratt. 48; Tiernan v. Thurman, 14 B. Mon. 277; Sears v. Smith, 2 Mich. 243; Daughaday v. Paine, 6 Minn.