author: Mr. Chief Justice 'Watkins

text:
    Gilliam vs. Towles.
    "Where "by the express terms of a contract for the purchase of timber, lying in the swamp, where cut, it was not to be paid for until after delivery, the delivery was a condition precedent to the vendor’s right of action; and nothing- short of an acceptance would make the vendee liable upon the common counts for goods sold and delivered.
    If the vendee was bound by his contract to accept the timber by merely having it shown to him in the swamp, he might have become liable under such a contract for refusing- to accept it when offered to be so delivered: but he cannot be held accountable for the value of the timber, if by reason of a sudden rise of water, not anticipated nor provided for in the contract, or the adverse possession of other persons, it becamo equally impossible for the vendor to make, or the vendee to accept, a delivery.

      Appeal from the Ovrcwit Coivrt of Desha Ooimty. ■
    The Hon. J. O. Murray, Circuit Judge.
    JoedaN, for the appellant.
    "When the contract was entered into, it was the mutual understanding of the parties that the timber should be delivered to Gilliam, in a condition that he could take immediate possession of it, or obtain the power and control over it, and not while in the actual possession of those who-•claimed the right to it and refused to surrender possession. 2 Kent

      Com. 552, 554; Chit, on Con. (5 Amer. Eel.) 73, and authority cited; Stoifs Con. Laws 225; Gwmison vs. Bancroft, 11 Verm. 493; Wilson vs. Troupe, 2 Cow. 195.
    There was no delivery of the timber according to the terms of the contract. The delivery must always be according to the subject matter of the contract, and the property must be placed under the control and power of the vendee. 2 Kent Com. 502; Chit, on Con. 390; BaAley <& Boga/rt vs. Ogdens, 3 J. JR. 421; 17 Mass. 110; 3 Stwrh Ev., 1222; 15 J. B. 349.
    Reasonable diligence was all that the law required of the ven-dee to obtain possession of the timber. Story’s Con. Laws,p. 318, note 1, and authorities cited.
   Mr. Chief Justice 'Watkins

delivered the opinion of the Court.

The judgment here appealed from must be reversed, for various causes. The declaration was indebitatus assumpsit, to recover the value of a quantity of cypress timber, alleged to have been sold and delivered by Towles, the plaintiff below, to the appellant. The witnesses, introduced on behalf of the plaintiff, proved conclusively that the contract between him and the defendant, respecting the timber, was a special one, subsisting and not rescinded or varied by any after agreement. The substance of it was, that the defendant bargained with the plaintiff for all the cypress and ash timber that had been cut by certain raftsmen on a tract of land- claimed by the plaintiff, at fifty cents a tier, payable when the defendant should have run the timber or disposed of it. By agreement, a witness to the contract, acting as the plaintiff’s agent, was to deliver the timber in question to the defendant, by going to and showing him the land, lying at some distance off in the swamp, on which it had been cut. The defendant was to raft the timber on the first rise of water, and after having ascertained the number of tiers, when collected together for that purpose, was to account to the plaintiff for the whole quantity, according to the price stipulated.

The witness attempted to make a delivery of the timber by going with the defendant to the land referred to, the greater part of which was overflowed, and some of the timber floating about in the water,, which was rapidly rising at the time; and the whole evidence conduced to prove that it was doubtful, under all the circumstances, whether the defendant, by the exercise of ordinary or reasonable diligence, could have obtained or secured any benefit from the timber, even if there had been no other impediment. But the evidence also conduced to prove that the timber was in the adverse possession of the raftsmen, and the hands employed by them, who were then engaged in collecting it together for rafting; who refused to surrender it, and finally succeeded in running the whole of it off, and selling it as their own.

Without detailing the several instructions asked for by the defendant, one of which was given and the others refused, and ■ supposing the declaration had been so framed as to let in proof of the special contract, the motion for new trial ought to have been granted; because, though the court charged the jury that, in order to enable- the plaintiff to- recover in this action, he must have proved to their satisfaction, that he sold and delivered the timber in question to- the defendant, certainly two of the other instructions asked for by the defendant should have been given, to the effect, that if, at the time, the plaintiff, by his agent, showed the timber to defendant, it was impossible for him, after using reasonable diligence to get possession of it ©n account of the overflow, it was no delivery, and no property in the timber passed from the plaintiff to- defendant; and further, that if, after the-timber was shown to defendant, it was removed and carried off against his will, so that he could not, by reasonable diligence, have obtained possession of it, he is not liable to the plaintiff for its value.

"Without reference to the statute of frauds, under which the the defendant might have refused to accept any delivery, there could be no obligation upon him, by the express terms of the contract, to pay for the timber until a delivery, which was a condition precedent to the plaintiff’s right of action in any form; and, under tbe contract as proved, nothing short of an acceptance of the timber would make him liable upon the common count for goods sold and delivered. If the defendant had become bound, by a valid contract, to accept the timber by having it merely shown to him in the swamp, where it lay upon the land claimed by the plaintiff, he might have become liable under the contract for refusing to accept it, when offered to be so delivered; but he ought not to have been held accountable for the value of the timber, if by reason of the sudden rise of water, a contingency not anticipated or provided for by the contracting parties, or the adverse possession of it by other persons, it became equally impossible for the plaintiff to make, or the defendant to accept, a delivery. Judgment reversed.


source: Caselaw Access Project

author: Mr. Chief Justice "Watkins

license: Public Domain

text:
    Rutzell vs. The State.
    The act of the legislature, approved January 11, 1863, conferring upon the corporation of Eort Smith jurisdiction over criminal eases, and providing for a grand jury, is not contrary to the spirit of the bill of rights; but the 34th section of the act must be so restricted that the grand jurors can serve as an inquest for only so much of the county of Sebastian as may be included -within the corporate limits of the city.

      Appeal from the Mayor's Oov/rt of Fort Smith.

    S. H. Hehpstead, for the appellant.
    The act of the Legislature, as to a grand jury for Fort Smith, is contrary to the spirit of tbe bill of rights, and yoid: and from which it follows that there was no legal conviction in the case. Acts 1852, see. 34/ 1 Eng. 187.
    J. J. ClbNdehiN, Att’y Gen’l, for the State.
   Mr. Chief Justice "Watkins

delivered the opinion of the court.

The appellant was convicted, in the Mayor’s Court of Fort Smith, of the offence of keeping a grocery open on Sunday. The indictment, upon which the conviction was had, was preferred by a grand jury, which appears to have been organized pursuant to the provisions contained in the Act for the incorporation of the city of Fort Smith, approved January 11, 1853. The only question argued here for the appellant is, whether the act of the Legislature, providing for a grand jury for Fort Smith, is not contrary to the spirit of the bill of rights, and the conviction appealed from consequently illegal and void.

There can be no doubt of the power of the Legislature to confer jurisdiction upon corporation courts over all criminal cases less than felony, at the common law. (Graham vs. The State, 1 Ark. 79; Ib. 180; Slattery Ex. parte, 3, Ib. 384; Rector vs. The State, 1 Eng. 187.) But, it is also to be conceded that the jurisdiction must be conferred and exercised in such manner as not to conflict with other provisions of the constitution, and in subordination to the Bill of Bights, as was adjudged in Eason vs. The State, 6 Eng. 481, involving a similar question.

The 14th section of the Declaration of Bights ordains that no man shall be put to answer any criminal charge but by presentment or indictment; which has been always understood to mean the action of a grand jury. (The State vs. Cox, 3 Eng. 436.) The 11th section guaranties to an accused, in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the county or district in which the crime shall have been committed. The act incorporating the city of Fort Smith, (Seo. 28,) vests in. tlie Mayor’s Court original jurisdiction, concurrent witli tbe Circuit Court of Sebastian county, of all offences against tbe general laws of tbe" State, lower than tbe grade of felony, committed witbin tbe corporate limits of tbe city, subject only to tbe appellate jurisdiction of tbe Supreme Court. . Section 33 enacts, that all prosecutions in tbe Mayor’s Court, for offences against tbe general laws of tbe State, shall be by presentment or indictment of a grand jury, as thereinafter provided. One of tbe requirements of tbe 34th section is, that tbe constable of tbe city shall summon, before each term, a panel of sixteen persons, “to serve as grand jurors for the body of the county of Sebastian, and particularly for and in behalf of tbe body oí tbe corporation, of Fort Smith.” Tbe appellants contend that this feature is obnoxious to tbe declarations contained in tbe Bill of Bights, which are to be construed with reference to tbe common law.

All of tbe cases, deciding that an indictment or presentment is necessary, in order to put an accused upon trial for any offence against tbe general law of tbe land, proceed upon tbe idea of a substantial, instead of a literal, compliance with tbe provisions of the constitution, which might sometimes defeat tbe operation of them, according to their spirit and intention. However cumbrous and.inconvenient may be tbe machinery of a grand jury, for tbe trial of misdemeanors, before corporation courts, or justices’, coiirts', under the 3d amendment, adopted in 1846, it cannot be. dispensed with, unless by nullifying other provisions of tbe constitution, tbe declared intention of which was to throw around an accused, in every case, tbe safe-guard of a preliminary investigation, and a formal accusation by indictment. “ Grand juries,” it was said by an eminent judge, “ are high public functionaries standing between tbe accuser and the accused. They are tbe great security to the citizen against vindictive prosecutions, either by government, or political partisans, or by private enemies.”

The policy of that constitutional provision is to be maintained without impediment from minor considerations, and so far as it can be done in harmony with other provisions of tbe constitution. In McElroy vs. the State, 13 Ark. 710, the opinion of tbis Court was, that tbe General Assembly might well exercise the power of -establishing new counties, without any infringement of the right of an accused to a trial in the county or district in which the offence may have been committed; because, otherwise, the effect would be to make the' lines of counties unalterable. So, we think it clear that, to the extent the General Assembly have power to vest criminal jurisdiction in corporation courts, it may, and ought to be practically adapted to the object in view. The accused has a right to demand that the'-charge against him be preferred by indictment, and the right is amply seemed to him, though for this purpose the territorial limits of the corporation constitute, as it were, the county or district out of which the grand jurors are to come. The utmost limit of the duty of the grand jury, to be summoned in accordance with the act of incorporation, which appears to have been framed with an anxious desire to conform, in conferring the jurisdiction, to the provisions of the constitution and the interpretation of them by this court, is to enquire of offences committed in the city of Fort Smith, though the prosecutions are conducted in the name of the State: and so far as the language quoted from section 34, of the charter, seems to .contemplate that the persons summoned are to serve as grand jurors for the body of the county of Sebastian, it must be regarded as inoperative, except in connection with their particular duty to serve as an inquest for so much of the county as may be included within the corporate limits of the city. Judgment .affirmed.


author: Mr. Chief Justice "WatkiNS

text:
    Rogers vs. the State.

      Appeal from the Mayor’s Court of Fort Smith.

   Mr. Chief Justice "WatkiNS

delivered the opinion of the Court.

The appellant was convicted in the Mayor’s Court of Fort Smith, upon an indictment for keeping a gaming house. The only question argued is that decided in Rutzell vs. The State; and though the proceedings appear to have been, in some respects, informal, no substantial ground is presented by the other errors assigned for reversing the conviction for a 'mere misdemeanor. Affirmed.


author: Mr. Chief Justice WatKINS

text:
    Norton vs. the State.
    An indictment, charging that the defendant, with others, “bet the sum of twenty-five-dollars, upon a certain unlawful gambling device, commonly called a raffle,” does not describe an offence, within the meaning cf any statute heretofore enacted against gaining.

      Appeal from the Mayor’s Cou/rt of Fort Smith.

    S. H. Hempstead, for the appellant.
    J. J. CnENDENiNy Att’y Gen’l, for the State.
   Mr. Chief Justice WatKINS

delivered the opinion of the Court.

The indictment, upon which the appellant was convicted;, charged that be, together with certain other persons named, “ bet the sum of twenty-five dollars, each, upon a certain unlawful gambling device, commonly called a raffle, which, said gambling device, was then and there adapted, devised and designed for the purpose of playing a game of chance, at which money or property may be lost or won,” &c. The evidence was, that Sutton, one of the defendants, owned a buggy, and divided the value of it into ten shares, and denominated these shares chances. The defendant, Norton, together with the other defendants, purchased all of those shares or chances, except one,'which was retained by Sutton; each paying therefor the sum of $25 00. 'The buggy then belonged to all of the defendants, in equal proportions, and they proceeded to raffle for it by casting lots with dice, in the manner described, and one of the defendants, who cast the highest number, won it.

The act complained of may be within the mischief, but it is not within the meaning oí any statute heretofore enacted against gaming; and if the practice grow to be an evil, it will require further legislation for the suppression of it. The construction put upon the first section of the statute, has uniformly been that it relates exclusively to what are known as banking games, which ■offer a challenge to betters, and are usually kept or exhibited by persons whose occupation it is to prey upon the community. Hence, such gaming-tables, devices, or banks, are peculiarly obnoxious to the law, and the offence of betting against them is also severely punished by the 3d section. (Stith vs. the State, 13 Ark. 682.) The offence created by the 8th section, is for betting on games at cards. At the common law, gaming-houses were indictable as a public nuisance, (Vanderworker vs. The State, 13 Ark. 700); but unless restrained by some express statute, ordinary wagers or betting were tolerated as being for amusement or recreation. 1 Ch. Cr. Law 677.

If the raffle is classed with lotteries, to which it may be assimilated, the case is not reached by the constitutional inhibition. Under it, the Legislature cannot authorize any lottery, and contracts for tbe sale of tickets, or shares, in a lottery, might be illegal, but, without some statute giving it a penal sanction, there is no authority for punishing criminally the persons concerned in any scheme or device of the kind.

The judgment will be arrested, and the defendant discharged from prosecution.


author: Opinion of Hon. Isaag SteaiN, Special Judge. Mr. Justice WalKee

text:
    Watkins and Trapnall vs. Wassell.
    The lien of a judgment on real estate is not displaced in favor of subsequent liens or contracts by the mere delay of the judgment creditor to sue out execution: nor by an order of the plaintiff, to return the execution without a levy, or without a sale of the property levied upon.
    Where a minor executes a deed of conveyance of real estate, and, upon arriving at age, jointly with his grantee, executes a deed of mortgage, to secure a debt of the grantee: such act is an affirmance of the deed of conveyance.
    The owner of a house and lot, being in possession, contracts with a mechanic for repairs, and grants the rents and profits to accrue, in payment thereof: the attorney of a judgment creditor, whose lien is prior to the contract for repairs, with full knowledge.of all the facts, sues out execution, while the work is in progress, and purchases the house and lot: Held That he must pay for such repairs as were put upon the house, after his purchase, until he gave notice to the contractor that he would not be'responsible or pay for the work. ' ■
    A contract with a mechanic for the repair of a house, that he shall receive the rents until he is fully paid, is not a mere security for the payment, but a transfer or grant of the rents and profits.
    If one sells and conveys real estate, to which he has no title, or an imperfect title, at the time of the sale, and subsequently acquires a perfect title, it enures to the benefit of the grantee; and, if between the date of the conveyance and the acquisition of the perfect title, a judgment is rendered against the grantor, the title of the grantee is prior to the lien of the judgment.
    The interest of a judgment creditor, under his lien, in the real estate of the debtor, is limited to the actual interest of the debtor at the time the lien attaches, and he holds it free from subsequent alienations or incumbrances, but subject to all prior aliena-tions or incumbrances.

      Appeal from PulasK Cwcwit Court in Chancery.

    Hon. William H. Feild, Circuit Judge.
    This cause was argued and submitted at tbe January term, 1851.
    On tbe 13tb February, 1854, tbe Court, the Hon. C. C. Soott, and Hon. David Walicer, Judges, and Hon. Isaac Strain, Special Judge, rendered a decree reversing that of tbe Circuit Court. Opinions were delivered by tbe Hon. Daved Waleer, in wbicb Hr. Justiee'SooTT concurred, and by tbe Hon. Isaao STRAIN.
    Tbe Court having adjourned over until April, at wbicb time Judge Strain was not present, a petition for reconsideration was filed and granted: and an opinion delivered on tbe 4tb of May, differing materially, as to one point, from tbe previous opinion of tbe majority of tbe Court. Tbe opinion of Judge Strain contains a substantial statement of tbe facts of tbe case.
    WatKins & Curran.
    Tbe judgment of Jones, Woodward & Co., under wbicb Watkins purchased, was rendered on tbe 24th June , 1840, and revived by scire facias, sued out before tbe expiration of tbe lien, and bis title is free from any incumbrance of Wassell’s contract, entered into in November, 1843. (Secs. 8, 13, Ch. 93, Dig.; Bolls et. al.vs. Hublcvrd, 2 Eng. 442.) And so under tbe judgment of Pitman & Co., rendered tbe 10th November, 1840, and revived by scire facias.
    Tbe judgment lien on land, unlike that of tbe lien on personal estate, or where tbe judgment is not a lien perse, is unaffected by tbe circumstance of tbe plaintiff not, proceeding to enforce it until, a subsequent lien has been .obtained. Rámlvm vs. Scott, 12 Wheat. 177/ Trapnall vs. Waterman, 13 Arle; 1 Broclc. 168/ 2 Wash. C. C. R. 280.
    Judgments rendered against a minor are voidable merely, not void; and if not avoided by him, after be comes of age, they remain valid and binding. 1 Am. Lead. Gas. 86 et. seg.; 3 Bacon 596/ Gro. Jac. 465/ 2 Bill) liejg. 101/ 3 Ma/rsh. Li. 354/ 14 J, It. 422.
    The Bant having purchased the lots upon which she held a mortgage, the latter was merged, (11 Mass. 50/ 7 Mon. 101/ 1 Wend. 478/) and by the sale, under the judgment of the United States against the Bank, the purchaser acquired title discharged from the mortgage.
    Wassell’s claim must either be a mortgage lien, or a mechanic’s lien: it is not good as a mortgage, because his contract was never recorded, {Big., Gh. 110, Secs. 1,2/ Mam et. al. vs. Alexander, 4 Eng. 112/) nor as a mechanic’s lien, because he did not complete the repairs, so as to put the house in a condition to be rented, and a hen commences only from the completion .of the work, {McCullough vs. Caldwell, 3 Eng. 231/) and because he took a distinct security, a lien upon the rents, and in such cases, a mechanic’s lien does not attach. 14 Wend. 201/ 2 Kent Oom. 500/ 16 Ves. 4, 275/ 9 Gow '. 52/ 1 Mason 191/ 4 Wheat 255.
    No fraud can be impúte¿ ’to the plaintiffs in the judgments, nor their attorneys, for not preventing the repair of the buildings. The lien of their judgments was of record; Wassell had notice of it; and they had no right or power to prevent the repairs by Byrd, or any one whom he might employ.
    TRAPNALL insisted that, at the date of the judgment of Trapnall & Cocke, which was prior to the contract of Wassell, William J. Byrd was the owner in fee of the lots sold under that judgment: that, by the purchase under the execution, Trapnall became the owner of the lots, free from all subsequent encumbrances: that, by the sale of the lots to the Bank, the fee simple vested in the Bank, and the prior mortgage was merged: that, no party can convey any estate in land during the existence of a judgment lien, so as to defeat the lien: that, the contract between Wassell and Byrd and the Bank, are personal obligations, not importing the grant or conveyance of the land, or of any interest in it, and would not affect a purchaser with or without notice: that, as against Trapnall, no equity is shown by the bill on its face.
    ' PiKE, for the' appellee.
    The interest of Wassell was not “a lien upon rents,” but an assignment or grant of rents, (WoodfaTl, La/nd. <& Ten. 102/ 1 Hill, ah. 154, 159, 162/ 2 lb. 309/) and the grant carried with it the right of possession.
    The lien of a judgment is displaced by the lien of a levy under fi.fa.y (8 Ark. 389/ 4 Oow. 417/ 8 Yetrg. 460/) and the lien of the judgment cannot be revived until the levy is disposed of.
    The lien of the several judgments, under which the appellant’s claim, was postponed to the Bank mortgage and to Wassell’s claim, by the neglect of the plaintiffs to enforce their liens. Bliss vs. Ball, 9 J. JR. 132/ BJellog vs. Griffin, 17 J. JR. 2Y4/ 3 Oow. 2Y2/ 5 lb. 390/ Y lb. 560/ 21 Wend. 222/ 4 How. Miss. JR. 130/ Y lb. 8YY/ 11 8m.- '<& Mar. 249/ 2 Bern. 354/ 4 lb. 128.
    But, admitting all the judgment liens to have been prior, still for these parties to defend against Wassell’s claim, is most inequitable. The judgments were permitted to lie dormant: the parties stand by and permit the mortgage to the Bank to be made, and Wassell to make his contract, and go on and expend his work upon the buildings, and when, by his labor, they are rendered of value, they assert their judgment lien, upon which they had rested until a sei.fa. was necessary to revive them. 11H. Hamvp. 201/ 1Y Verm. 449/ 8 Sh&p. 130/ 19 Wend. 557/ 21 lb. 1Y2/ 2 JDev. 1Y9/ 4 lb. 172/ 1 Story’s Eg., See. 385/ 1 J. O. JR. 344/ 6 J. O. JR. 168.
   Opinion of Hon. Isaag SteaiN, Special Judge.

This is an appeal from the decree of the Chancellor of the Pulaski Circuit Court.

The facts embraced in the case, are these: Richard O. Byrd purchased at public sale, and paid $401 00 for lots Nos. 4, 5 and 6, in Block No. 2, situate in the city of Little Rock, East of the Quapaw line, in the county of Pulaski, known as Gov. Pope’s addition to said city, and received therefor a certificate of purchase dated 19th November, 1833. This certificate of purchase he assigned and transferred to his son, Wm. J. Byrd, and requested the deed should be made to him. On 3d of March, 1835, in accordance with the assignment of the certificate, Gov. Pope executed a deed to these lots to Wm. J., being then a minor. Afterwards, Wm. J. Byrd, being the undisputed owner of lots Nos. 1, 2, and 3, in the same block, Richard 0. Byrd erected thereon a large tavern house; also a large two story brick warehouse, on lot 4, and the east part of lot 5, worth at least $8,000. He also erected a large three story brick building for stores, on lot 6, and twelve feet on the west part of lot No. 5. On the 23d of February, 1838, Wm. J., still a minor, conveyed, by deed, to R. 0. Byrd lot 6, and twelve feet off the west part of lot 5, for the consideration of $8,000, expended in building the ware-house and tavern. In the spring of 1843, Wm. J. arrived to the age of 21 years, and on the 13th of November, 1844, he confirmed, by deed, the deed of 1838.

On the 24th of June, 1840, Jones, Woodward & Co., obtained judgment against R. O. Byrd for the sum of $5,661 65, in the United States Circuit Court, upon which they sued out a writ of fi. fco., dated 21st June, 1841, and it was levied by the marshal on lot 6, and 12 feet of the west part of lot 5, and it was offered for sale 21th November, 1841, and not sold for want of bidders. A writ of soi.fi., to continue the lieirof judgment, was sued out and served on R. O. Byrd, alone, on the 19th of May, 1843, and the judgment was revived on the 19th April, 1844. Fi. fa. issued 16th May, 1844, on which nothing was done. On the 2d Nov., 1844, a vm. ox. issued, and on 25th Nov., 1844,lot 6, and 12 feet of the west part of lot 5, was sold by the marshal, and purchased by Geo. C. Watkins, plaintiffs’ attorney, for ten dollars, to whom the marshal executed deed therefor, properly acknowledged and recorded.

On the 10th of November, 1840, E. Pitman & Co., obtained two judgments against R. O. Byrd, amounting in the aggregate to about $5,000, in the Pulaski Circuit Court. On the first judg-meat, stay of execution was entered of record for six months, and on the second judgment, for eighteen months. On .the first, Jo. fa., issued 9th June, 1841, and levied on lot 6, and 12 feet of lot 5, which was appraised at $19,500, andnotbringingtwo thirds of its value, was not sold. On the 31st December, 1842, a writ of ven. ex. issued, returnable March term, 1843, and which was returned 28th March, 1843, with the following endorsements thereon, “ The sheriff of Pulaski county, is authorized to return this execution wisatisfled, as by agreement between plaintiff and •defendant, Ashley and Watkins, attorneys for plaintiffs.“This •execution is returned unsatified, as per order of plaintiff’s attorney, hereon endorsed, James Lawson, jr., sheriff, by N. B. Thommas-son, deputy.” “Beturned and filed, May 10th, 1843. IT. .Haralson, Clerk.”

On the second judgment, exécution issued Jth February, 1843, returnable May, 1843, and was ordered by the attorney to be re•turned unsatisfied, the same day it issued, endorsed as the first, ¡and was returned and filed, 10th of May, 1843. On the 19th of ■October, 1843, writs of sei.fa., to continue the liens, were sued out, on both judgments, and served on E. 0. Byrd, alone, and the judgments were revived on 10th of January, 1844. On the 1st November, 1844,fi. fa. issued on both judgments, and levied on lot .6, and 12 feet on the west part of lot 5, and sold 21st April, 1845, and bought by Geo. O. Watkins, the attorney, for $1001 00, for the use and benefit of the judgment creditors of said Byrd. For which he obtained the sheriff’s deed, properly acknowledged and recorded.

■ On the 20th May, 1842, Trapnall & Oocke obtained two judgments against Wm. J. Byrd, then a minor, for about $800 00. On the 25th June, 1842, y?, fa. issued on each, and returned nulla lona. Fi.fa. again issued, 25th February, 1845, and was levied on lot 4, and the east half of lot 5 and lot 6, and they were sold the 25th April, 1845, and purchased by F. W. Trapnall, for $225 00. For which he has the deed of the sheriff, properly ac-Anowledged and recorded.

On tbe 20tli of June, 1845, Trapnall and wife conveyed lot 4, and tbe east balf of lot 5, to tbe Bank of tbe State of Arkansas. Tbe United States recovered judgment against tbe Bank, in the United States Circuit Court, on tbe 25th of April, 1845, on which fi.fco. issued 1st November, 1845, and was levied on lots 4,5, and 6, and they were sold 26th of April, 1846, and purchased by F. W. Trapnall, who received a deed from tbe Marshal therefor, properly acknowledged and recorded. Since the commencement of this suit, Trapnall has conveyed his interest to lot 6, and west part of lot 5, to Geo. 0. Watkins.

On tbe 26th October, 1844, Watkins, as the attorneyfor Jones, Woodward & Co., E. Pitman & Co., Johnson & Duplain, and T. H. Hyde & Co., entered into an agreement with R. C. Byrd, by which he allowed or agreed to give $10,000 on their judgments, amounting in the aggregate to $17,000, for lot 6, and 12 feet off lot 5, provided Byrd would put the buildings thereon in good repair.

On the 5th of October, 1843, T. D. Merrick & Penno moved into these buildings, having rented them from the Byrds. Two* days after (7th October, 1843,) the buildings fell down. It was; immediately repaired in part by Merrick & Fenno, and they continued to occupy the buildings under the Byrds.

On tbe 22d November, 1843, R. C. Byrd and William J.Byrd executed jointly a deed of trust, by which they mortgaged, to the Bank of the State of Arkansas, lots Nos. 1, 2, and 3, in said 'block No. 2, upon which said tavern is situated, the property of Wm. J. Byrd; also tbe said lots Nos. 4, 5, and 6, embracing the brick ware-house, and tbe three story brick store-house, to secure their joint note for about $13,000, executed for a debt originally contracted by R. O. Byrd, excepting about $1200 by Wm. J. The mortgage deed authorized the Bank to control, receive, and apply all the rents of said property, to the payment of this debt,, due in nine annual installments, until full payment or sale of the mortgaged property, excepting seven or eight hundred dollars, to be applied in repairing tbe buildings.

On. the 29th. November, 1843, B. 0. Byrd contracted in writing with the complainant Wassell, a carpenter, to cut the three story store-houses down to two storys, and completely repair them, for which he was to be paid the Cincinnati prices of 1819, with 20 per cent, added. -The complainant, Wassell, was to be paid $200 on the 1st of December, and $100 on the 20th of December, 1843. The old materials to be worked in when it could. When new materials were necessary, B. O. Byrd was to furnish them. When the work was completed, it was to be measured by some one chosen by Byrd and the complainant, or some one chosen by him. And when the repairs were done, according to the agreement, the rents, arising from said houses, were to be applied to the payment of said Wassell for the residue of his work, and to be considered as money belonging to said Wassell until his claim was settled. This contract was signed by Wassell and B. O. Byrd, but never recorded.

The Bank and William J. Byrd agreed, in writing, that the above contract between Wassell and B. O. Byrd, should be fully ■carried out, and that the rents arising from said store-houses should be applied in paying Wassell for said repairs according to their agreement. Which is signed by the agents of the Bank •and Wm. J. Byrd, but not recorded.

On the 30th December, 1843, similar articles of agreement were entered into between Wassell and Wm. J. Byrd, to repair the ware-house on lot 4, and east part of lot 5, which was signed and sealed by Wassell and Wm. J., but not recorded. To which contract the Bank and B. 0. Byrd agreed, in writing, and that, when completed, the rents arising from said ware-house, to the amount of $500, should be applied to the payment of said Wassell, for repairing it, which was signed by the agents of the Bank and B. O. Byrd, but not recorded.

Soon after this, Wassell commenced and continued repairing these houses, under these contracts, till July, 1845, being frequently hindered and delayed in the mean time for want of suitable materials, the Byrds having failed to furnish materials, as they liad contracted. On tbe 15tb July, 1845, "Wassell notified tbe Bank that be was ready to complete tbe contracts of repairing, according to tbe agreements, and requesting and requiring tbe Bank to 'fnrnisb tbe necessary materials. Tbe Bank immediately refused and denied being bound by tbe contracts. Whereupon, Wassell abandoned tbe contracts, and applied to tbe Byrds to appoint some person to measure tbe work be bad done.' Tbe Byrds appointed one Sbaw, a carpenter, who, together with the* complainant, measured tbe work done on tbe store-houses, and found it to amount to tbe sum of $2,043 71, and tbe repairs on tbe ware-house to $569 82. A large number of other judgments were obtained against E. G Byrd, in 1839, 1840, and 1841, amounting in tbe aggregate to more than $20,000, under some of which tbe store-houses on lot 6 and part of lot 5 were sold, and purchased by E. W. Trapnall, but they are not necessary to tbe decision in tbe case, and are omitted. On tbe 9th October, 1845, Wassell filed bis lien on tbe property, in accordance with tbe statutes, crediting E. O. Byrd with $28 00, and Wm. J. Byrd with $50 00.

Wassell filed bis bill on ■ — ■ August, 1846, to recover tbe rents of tbe property sufficient to satisfy bis claim for repairs from Watkins and Trapnall, who were in tbe' possession of tbe property. Tbe Court decreed that tbe rents, sufficient to satisfy Wassell’s claim for repairs, were a charge upon tbe property in tbe bands of Watkins and Trapnall, and that tbe complainant recover from Geo. C. Watkins-$2,015 21, tbe amount then due for repairs on tbe brick store-house on lot 6 and 12 feet on lot 5. And further decreed that tbe complainant recover from E. W. Tapnall $500 on tbe amount then due, according to contract, for repairs- on tbe brick ware-house, on lot 4 and tbe east part of lot 5.

In tbe investigation of this case, we have encountered many questions ■ exceedingly intricate and perplexing. We shall not attempt to decide all tbe questions which may be raised by tbe facts, but such only as we think are necessarily involved in tbe correct determination of tbe case.

In tbe beginning, the legal question presents itself, whether the mortgage to the Bank, executed bj B. C. Byrd and "Win. J. Byrd, the 22d November, 1843, after Wm. J. arrived to the age of 21 years, was an affirmance or disaffirmance of the deed of 1838.

The execution of the mortgage by Wm. J. Byrd alone, would, without doubt have been a disaffirmance of the deed of 1838.

, This would have been a complete assumption of ownership; a claim totally inconsistent and irreconcilable with the deed of 1838. But we think the mortgage in this case is no disaffirmance of the deed of 1838. The mortgage is joint — executed by B. C. and Wm. J. Byrd, and not Wm. J. alone. They jointly assumed the ownership of the lots mortgaged. They jointly entered into covenants of warranty and seizure. The instrument itself shows a joint responsibility. It is sufficient that if all the property mortgaged be vested in Wm. J. and B. 0. Byrd to save them harmless from their covenants. It is not contended that B. C. Byrd had any title or claim to any of the property mortgaged, excepting that embraced in the deed of 1838. If he intended to disaffirm, why did he not execute the mortgage alone? Why did B. C. Byrd also execute the mortgage, and what is the legal effect as to him? Did he thereby assume the complete ownership of dll the property? The instrument should be so construed, if possible, as to give it effect in all its parts, and as to all parties concerned, and carry out the true intentions of the parties. The legal effect of this mortgage does not imply an assumption of ownership of all the property by Wm. J. Byrd. This construction of the instrument accords with the assumption of ownership by B. 0. Byrd of the property, in contracting with complainant for repairs, a few days after, which was assented to, and endorsed by Wm. J. Byrd, thereby admitting the ownership of his father; also with his subsequent deed of confirmation in 1844.

We are next led to inquire, what lien Wassell secured by his contract. It may be true that the possession of land, by virtue ©f a contract entitling to the immediate possession and rents,. would, give a good lien, without being registered, against after acquired judgment liens and subsequent purchasers. Upon this, we are not now required to decide. It appears, from the record, "Wassell never had the possession of this property. It is not even contended that he had a right to the possession and accruing rents by the terms of the contract, until he had abandoned it, on the 15th July, 1845, nearly two years after he entered into the contract with the Byrds. We think the contract between Wassell, the Byrds, and the Bank, clearly a mortgage upon the rents, to secure the debt for repairing the buildings, and comes within the registry act, and must be recorded to give a lien against a judgment creditor, who has acquired a specific TAm by execution and levy, without notice of the mortgage. Dig. of Ark., p. 745, S. 2, Atwater vs. Mower, 10 Verm. R. 75.

Wassell’s contract with Wm. J. Byrd and the Bank, was executed on the 30th Dec., 1843. Trapnall & Cocke obtained their judgments against Wm. J.Byrd the 20th May, 1842. Execution issued, and was levied on the property on the 25th February, 1845, and it was sold on the 25th April, 1845, and Trapnall became the purchaser. Tire judgment liens being prior to Wassell’s contract, and the judgments, executions, levy and sale being all withinthe three years, Trapnall, without doubt, obtained a good title to the property, unaffected by Wassell’s claim. But the facts embraced in this branch of the case, present other questions more difficult and perplexing.

On 23d of April, 1845, the United States obtained judgment against the Bank. On 20th June, 1845, Trapnall and wife conveyed this property to the bank. On 1st November, 1845, fi. fa. issued and was levied on the same property, and it was sold 20th April, 1846, and Trapnall again became the purchaser. Did Trapnall’s purchase and title under the prior judgment liens of Trapnall & Oocke, extinguish Wassell’s lien on the property? Did the conveyance of this property to the Bank, by Trapnall and wife, revive the lien against the property, the Bank having notice and being a party to the contracted lien % Or what effect did they have, if any ?

Again, it appears tbe United States bad no notice of Wassell’s unregistered mortgage or contract. Did tbe United States, by ber judgment, j/i./b., levy and sale of tbis property, acquire precedence over "Wassell’s unregistered lien? If so, did Trapnall, tbe purchaser at tbe marshal’s sale, stand in tbe place of tbe United States, and get a good title, tbougb be had notice of Was-sell’s contract ? "We do not now propose to decide all these questions, but such only as appear to be material and necessary to tbis case.

Tbe doctrine seems to be well settled in New York and South Carolina, that tbe judgment lien is subject to every equity which existed against tbe land in tbe bands of tbe judgment debtor, at tbe time of tbe docketing of tbe judgment, tbougb tbe judgment creditor had no notice at that time. That a court of chancery will protect tbe equitable rights of third persons against tbe legal lien, and will limit that lien to tbe actual interest which tbe judgment debtor has in tbe estate, and tbis is placed on tbe ground “that a judgment is not a specific lien on tbe land of tbe debtor, but a general lien on all tbe lands of tbe debtor.” 1 Paige R. 128, m the matter'of Howe; 4 Paige R. 15, Keirsted vs. Avery.

Tbis case does not come within tbe principle here laid down. Tbe levy of \h.&fi. fa. gave tbe United States a specific lien on tbe property. Tbe title of tbe Bank was thereby divested, and tbe United States became tbe legal owner bona fide. (Cushing vs. Hurd, 4 Pick. R. 255.) Tbe lien of Wassell is therefore void as against tbe United States, because it was not recorded. If then Wassell’s lien is void as against tbe United States, tbe doctrine of notice will not apply to Trapnall, for notice of that which is no lien, amounts to nothing. It seems further, if tbe United States were entitled to precedence, she has a right to tbe full benefit of ber lien, without detriment from Wassell’s unregistered mortgage, and Trapnall, by Ms purchase, is entitled to tbe benefits of tbe judgment lien.

But a different rule prevails in Pennsylvania and OMo, and some of tbe other States. There, tbe judgment creditors are placed on the same ground witli lonco fide purcbasers, and tbe rule is, tbat every incumbrance, whether it be a registered deed or mortgage, or docketed judgment, should, in cases free from fraud, be satisfied according to priority of lien upon the record, which is open for public inspection.”

4 Kents Com., p. 173; Cleveland Bank vs. Sterges, 2 McLean's R. 341; Cushing vs. Hard, 4 Pick. R. 255; Warden vs. Adams, 15 Mass. R. 226; Sigourney vs. Larned, 10 Pick. R. 73; Kanfelt vs. Bower, 7 Sergt. & Rawl. R. 64; Adams appeal, 1 Pa. R. 448; Bowers vs. Oyster, 3 Pa. R. 240; Coffin vs. Ray, 1 Met. R. 212; Johnson vs. Cawthorn, 1 Dev. & Battle R. 32, 35, also 379; Roberts vs. Rose, 2 Humph. R. 145, 147; Gunn vs. Chester, 5 Yerger R. 205, 209. This seems to be the doctrine established by our Legislature in relation to the same subject. The Dig. of Arks., p. 623, 8. 5, regulating judgment liens, declares that liens shall commence on the day of the rendition of the judgment and shall continue for three years.” And the act concerning the registry of mortgages, Dig. Arks. 745, S. 2, provides that every mortgage, whether for real or personal property, shall be a lien on the mortgaged property fi-om the time the same is filed in the recorder’s office for record, and not before ; which filing shall be notice to all persons of the existence of such mortgage.” Here, we find the lien commences on the day of the rendition of the judgment, and the mortgage is a lien from the time it is filed in the recorder’s office for record and not before. Priority must then be determined, from the time they were placed on the record. It is clear to our mind that, in the absence of fra/ud, the party first obtaining a record lien, in accordance with the statutes, obtains priority over unregistered mortgages, and entitled to prior satisfaction, according to the plain meaning of these provisions. Such is declared to be the law in Mississippi, under a similar statute to ours. Benjamin vs. Hyatt, 1 Smedes & Marsh. Ch. R. 437.

And. they fully sustain the position above laid down, that liens on land, whether by judgment or mortgage, in the absence of fraud, are to be discharged according to the order of time in which they respectively attached. And this is further evident from our statutes regulating conveyancing of real estate, (Dig. of Ark., p. 269, S. 31,) which provides that “no deed, bond, or instrument of writing for the conveyance of any real estate, or by which the title thereto may be affected in law or equity hereafter made or executed, shall 1be good and valid against a subsequent purchaser of such real estate for a valuable consideration without .■actual notice thereof; or against any creditor of the person, executing such deed, bond or instrument, obtaining a judgment or ■decree, (which by law may be alien upon such real estate,) unless .such deed, bond, or instrument, duly executed and acknowledged, ■or proved, as is or may be required by law, shall be filed for .record in the office of the clerk, and ex-officio recorder of the county, where such real estate may be situated.” Here, it is ■evident that creditors obtaining a judgment or decree, which by law is a lien upon the real estate, is placed on the same advantage .ground with “ subsequent purchasers for a valuable consideration ■without actual notice.” Then, it being established that the judgment lien of the United States is entitled to priority over Was-.sell’s lien, it clearly follows that Trapnall,' the purchaser at .sheriff’s sale, under this judgment, cannot be affected by notice of ■ the mortgage, “ For, ff he could, it would render the judgment .unavailable.” “It would give the mortgage priority over the judgment, and take away the value of the judgment to the .amount of the mortgage.” (Jacques vs. Weeks, 7 Watts R. 261.) And in Bayley vs. Grienleaf, 7 Wheaton R. 46, Chief Justice MARSHALL says, “ to the world, the vendor appears to hold the ■.estate, divested of any trust whatever, and credit is given to him ■in the confidence the property is his own in equity as well as law. A vendor, relying upon this lien, ought to reduce it to a mortgage, so as to give notice of it to the world. If he does not, he is in some degree accessory to the fraud committed on the public, by an act which exhibits the vendee as the complete .owner of an estate, on which he claims a secret lien. It would seem, inconsistent with the principles of equity, and with the general spirit oí our laws, that such a lien should be set up in a a court of chancery to the exclusion of bona fide creditors. The lien of the vendor, if in the nature of a trust, is a secret trust, and although to be preferred to any other subsequent equal equity, unconnected with a legal advantage, or equitable advantage, which gives a superior claim to the legal estate, will be postponed to a subsequent equal equity, connected with such advantage. In the United States, the claims of creditors stand on high ground. There is not perhaps a State in the Union, the laws of which do not make all conveyances, not recorded, and all secret trusts, void as to creditors, as well as subsequent purchasers, without notice.”

"We might well place this branch of the case on another ground. Admitting that Trapnall once knew of Wassell’s mortgage on tb.es rents of this property, he had no right to presume ■ it remained unsatisfied. The circumstances of ¥m. J. Byrd, the two subsisting unsatisfied judgment liens of Trapnall & Oocke, against him at the time of the contract, were sufficient, we think, to prompt Wassell to diligence in securing his lien, by having it registered. More than a year after the contract, Trapnall & Cocke sells the property, under their judgment liens, and more' than two years after, the United States sells it again, as the property of the Bank. In the meantime, Wassell sets up no claim,, interposes no objections to the sales, has taken no steps to have his mortgage lien recorded, as required by the statutes, nor assigned any reason for not doing so. We think, therefore, that Trapnall might well presume, from these circumstances, and from the length of time the mortgage remained unrecorded, and still being unrecorded, that it had been satisfied, or ccmeetted, and other security taken, or that he had wawedhis, lien, (Farnsworth vs. Childs, 4 Mass. R. 640.) If Wassell, in consequence, has to suffer, it is owing to’ his own negUgmee. Tie can blame no one but himself.

As to the other branch of this case, it depends somewhat upon different principles. On tbe judgments of Jones, "Woodward & Co., and E. Pitman & Co., sci. fas. to continue tbe liens issued witbin tbe three years, but tbe judgments of revival were not rendered until after tbe expiration of tbe three years. In tbe meantime, between .the issuing of tbe sci. fas. and tbe revivals of tbe judgments, Byrd mortgaged tbe property to tbe Bank, and made this contract with Wassell for repairs, giving a lien upon tbe rents of tbe property. Hie question is, was there a lapse in tbe lien, so as to admit of tbe intervening equities of Wassell and tbe Bank. The principle involved in this question, we think, is well settled in Trapnall vs. Richardson, Waterman & Co., 13 Ark. R. Where sci. fa. is issued before tbe expiration of tbe three years, and tbe judgment of revival is not entered until after, tbe judgment relates back to tbe date of tbe sci. fa. and tbe lien is continued unbroken. After tbe revival, tbe judgment creditor can sell and have tbe full benefit of bis lien, without lapse. Tbe case of Whiting & Slark vs. Beebe, is not inconsistent with tbe doctrine here laid down. In that case, tbe judgment creditor sold tbe property pending tbe sci. fa. before tbe judgment of revival was entered. His lien was incomplete without judgment of revival, and in that case tbe purchaser could not avail himself of its benefits.

Tbe cases cited of dorma/nt executions against personal property, do not, we think, apply. By our statutes, tbe liens in this ease are attached to tbe judgments. They commenced with tbe judgments, and by sci. fas., and judgments of revival are made to continue three years more from tbe dates of tbe sci. fas. “In those cases cited, tbe lien is not created by tbe judgment, or any matter of record.” “ A statutory lien is as binding as a mortgage, and has tbe same capacity to bold tbe land, so long as tbe statute preserves it in force.” Rankin & Schatzell vs. Scott, 12 Wheaton R. 177; 6 Condensed R. S. C. U. S. 506.

There is no such delay, under tbe circumstances, in tbe case of Jones, Woodward & Co., as will postpone them, either in law or equity, and in view of all tbe circumstances in this case, we do

not attach much importance to tbe endorsements oñ tbe two executions of E. Pitman & Co., directing tbe sheriff to return tbe executions unsatisfied. These executions, with these endorsements, were returned, filed and made a matter of record, 10th May, 1843. And on tbe 19th October, 1843, sci.fas. to continue tbe liens, were sued out on both these judgments. There is no evidence that any agreement for delay existed at the time Was-sell took the mortgage upon the rents of this property. "We, therefore, think the complainant could not have been misled or defrauded, or in anyway injured, by these endorsements or agreements. It is a general rule that “ equity follows the law,” and the special circumstances in this case are not such as to make this an exception. We think "Wassell is entitled to the rents of so much of the brick ware-house as is or may be situated on the 13 feet lying between the east half and the 12 feet on the west part of lot 5, which still remains unsold. But, as the case now stands, there is no evidence on the record showing what part of said buildings, if any, are on the 13 feet, nor what amount of rents has been received thereon.

And if "Watkins, after he purchased the property and obtained title thereto, stood by and silently permitted the complainant to bestow his labor upon the buildings, in ignorance of his superior title to the property, or upon the faith that "Watkins would pay him for his labor, in that case "Wassell is entitled to recover for all the labor he did upon the buildings after that period until he abandoned the works, or "Watkins notified him of his superior title, and that he would not pay him. But, as the record now exists, there is no satisfactory evidence before us on these points? neither as to the amount of labor done on the buildings after this period, nor as to the valué of such labor.

Mr. Justice WalKee

delivered the opinion of the Court.

The grounds for equitable relief against the defendants, are in many respects essentially different, and for that reason will be considered separately.

Anri first, as'regards tbe complaint against tbe defendant "Watkins. It is predicated upon a contract made between tbe complainant of tbe one part, Byrd and tbe State Bank of tbe other, by which they granted to the complainant tbe rents and profits of certain buildings, for repairs to be made by Wassell (tbe complainant) on said buildings. Tbe precise terms of this agreement, as between these parties, it is not important to examine, because tbe defendant, Watkins, claims tbe property by purchase, under a judgment lien, prior in point of time to tbe contract with Byrd and tbe Bank, to whom tbe property bad been mortgaged, which is apparent upon tbe record, and admitted by tbe complainant, who contends that by tbe acts and conduct of tbe judgment creditor, bis judgment lien bad been, before tbe sale of tbe property, displaced. After a careful examination of tbe record, and tbe evidence, we are led to a different conclusion. Tbe statute continues tbe lien of tbe judgment creditor for three years, unless displaced by some act of tbe party. Mere delay to sue out process within tbe time, would not of itself be sufficient for that purpose; noi* would tbe levying of process, and an-order by tbe ' creditor, or bis attorney, to return tbe process, without selling the property, or to return process before it bad been levied, necessarily discharge tbe judgment lien. Such acts do not amount to an-abandonment of tbe lien, a release of property taken in execution, or a new or additional security. It is very true that in this case there was an apparent unnecessary delay in tbe sale of tbe property, and some vacillation in ordering process to issue, and thereafter to be returned. But upon looking to tbe peculiar circumstances of this case, it is evident that no sale of tbe property could have been made at an earlier day than that on which tbe sale took place, without hazarding tbe loss of tbe debt; because, as tbe defendant held tbe property by deed from a minor, until such minor became of age and affirmed tbe title so made, no one would have been safe in buying tbe property; and that this was tbe true cause of tbe delay, may be fairly inferred from tbe fact that the affirmance was procured to be made by tbe plaintiff’s attorney, and tbe sale of tbe property thereafter made with tbe least possible delay. It is also true that Wassell was, during tbe time of this delay, bestowing bis labor upon tbe property, and thereby enhancing its value, and be may have been induced to prosecute bis labors, under tbe impression that be could realize, out of tbe rents, a sum sufficient to pay for tbe repairs, before the property was disposed of. But there is no evidence that Watkins held out any inducements or assurance, to Wassoll, that be would pay for tlie work, or that bis (Wassell’s) was tbe better claim, and although be knew Wassell was at work on tbe building, and bad information with regard to tbe nature of tbe contract under which it was done, to put liim upon inquiry, yet it must be remembered that Watkins, although the attorney for tbe plaintiffs, was not then tbe owner of tbe property, nor bad be any control of it whatever, and was not, therefore, compelled to give notice to Wassell that be would not pay for improvements. In view of all tbe facts of tbe case, there can be no doubt of tbe superior title of Watkins to tbe property, free from all incumbrance, up to tbe time of purchase. But, after tbe purchase of Watkins, tbe property being bis, a silent acquiescence, on bis part, in tbe continuance of tbe work, by Wassell, upon tbe building, raised an implied assumpsit onhispartto pay for the work so done. If be did not intend to pay Wassell for tbe work done on tbe building after bis purchase, it was his duty at once to have apprized him of tbe facts; having failed to do so for a considerable length of time, tbe work done between tbe date of tbe purchase and tbe time when Wassell was notified, that Watkins would not be held responsible for tbe payment of tbe work, should be accounted for by Watkins.

Trapnall, like Watkins, in tbe first instance, purchased under a judgment lien, prior in time to Wassell’s contract with Win. J. Byrd and tbe bank, for repairs to tbe property, purchased by him, but, as be subsequently parted with bis title to tbe Bank, he must rely for title solely upon bis subsequent purchase, made under a judgment in favor.of tbe United States against tbe Bank, which was rendered subsequent to 'Wassell’s contract, and consequently the lien created thereby laid hold of the lots as the property of the Bank, subject to all prior incumbrances.

It is a matter of some difficulty to determine satisfactorily tjie nature of this incumbrance. ¥m. J. Byrd, prior to his contract with Wassell, conveyed the lots to the Bank, to secure the payment of certain debts. TJpon the lots was situated a ware-house, that had partly fallen down, and was in a ruinous condition, and no doubt, with a view to having them repaired, made a reservation, that part of the rents and profits of the ware-house might be applied to- the payment for repairs. This reservation, in view of the insolvent circumstances of Byrd, and the nature of the deed executed to- the Bank, seems to have been a means of payment, for repairs, provided by the parties for their mutual benefit; because,- by the terms of the deed of mortgage, there was not only a lien created upon the realty, but by express terms, a grant of the rents and profits, arising therefrom, to be applied to the payment of Byrd’s debt to the Bank. The Bank was, therefore, interested in having the repairs made; that the property might be put in a condition to rent, and Byrd, for the same reason, and that it might be preserved from utter loss and ruin.

The contract for repairs was made by and between Wm. J. Byrd and Wassell, and on the same day approved, adopted and affirmed by the Bank, whereby it became the contract of both Byrd and the Bank; by the terms pf which, it was agreed that five hundred dollars of the rents and profits arising from the use arid occupation of the buildings, should be applied to the purpose of securing-fmWassell his pay for repairs to the buildings.

In view of all the circumstances connected with this transaction, it is evident that Wassell, to the extent ©f five hunched dollars, contracted for these rents, as the consideration for the repairs. Byrd was not to pay this sum in any event, -because the amount to be paid by him was expressly agreed upon; to that extent, the contract was made on the personal responsibility of Byrd, but it was the- interest in the property granted, which was set apart by Byrd and tbe Bank, and contracted to Wassell, and accepted by bim as a payment for tbe work to be done. It ivas not, there* fore, a mere security for tbe payment of Byrd’s contracts^ but upon tbe adoption of tbe contract, by tbe Bank, it was, in effect, a transfer to Wassell of tbe rents and profits in payment for bis services, and wben it is considered that Byrd bad, in express terms limited bis personal liability, and apart from such liability, bad contracted tbe rents which bad, by tbe terms of tbe deed of mortgage, been reserved for tbe express purpose of paying for tbe repairs, which contract was affirmed by tbe Bank, it is equally clear that tbe Bank was only fulfilling her agreement with Byrd by joining bim in making tbe transfer, and was not liable as a corporation in any event upon tbe contract. It was then a grant of rents, an incorporeal hereditament, which, as incident to tbe purchase, be might demand and receive, and, for tbe purpose of enabling himself to do so, if necessary, might enter upon tbe realty, because tbe grant of tbe rents carried with it every incidental right necessary to enable tbe purchaser to get tbe benefit of bis purchase.

We have seen that, by tbe express terms of tbe deed of mortgage, tbe rents were conveyed to tbe Bank, with tbe reservation that part thereof should be applied to paying for repairs, or, if not, as Byrd and the Bank both executed tbe contract with Was-sell, be certainly acquired tbe title to tbe rents, whether in either or both of them. If, however, tbe title or interest in tbe Bank was imperfect, for tbe reason that there was an equity of redemption as to tbe realty, and, therefore, that she did not communicate- or pass to Wassell a perfect title to tbe rents by reason thereof; still, her subsequent purchase of tbe property from Trapnall was, in effect, an affirmance of a perfect title in Wassell, under bis purchase of tbe Bank, as fully and to tbe same extent that it came to her from Trapnall, for it is a familiar and well established rule in this State, that if one sells real estate to which be has no title, or an imperfect title, at tbe time of tbe sale, and subsequently acquires such perfect title, that such title enures to tbe benefit of bis vendee as fully as if tbe after acquired title bad existed in tbe vendor at tbe time of bis conveyance in tbe first instance.

At tbe time tbe United States obtained judgment against tbe Bank, slie evidently bad no estate or interest in tbe realty or in tbe rents and profits arising therefrom; because, before that time, the property bad been sold to Trapnall, under process, to satisfy a judgment against Byrd, who held the equity of redemption, and as tbe judgment lien was older than tbe deed of mortgage, tbe whole legal estate vested in tbe purchaser. But upon tbe' transfer made subsequently to the Bank, tbe judgment lien did attach, and held tbe estate as perfectly and to tbe same extent, that it remained in the Bank after her purchase.

"We have seen that tbe rents and profits bad been, by the Bank, conveyed to IVassell, and that her purchase of Trapnall, to tbe extent of her former transfer to "Wassell, passed immediately to him. So that tbe title, which tbe Bank really acquired by her purchase of Trapnall, was, at tbe time tbe lien took effect, encumbered with this prior conveyance.

Tbe office of a lien is not to create an estate, nor in tbe slightest degree to affect or interfere with prior incumbrances, but to prevent subsequent alienations or incumbrances. So, it was said, in Kersland vs. Avery, 4 Pedge 14, “Tbe lien of tbe judgment is subject to every equity that existed against tbe land in the bands of tbe debtor, at tbe time of docketing tbe judgment, and tbe court of chancery will protect tbe equitable rights of third persons against tbe legal lien, and will limit that lien to tbe actual interest which tbe judgment debtor has in tbe estate.” In Mooney vs. Dorsey, 7 Sm. &. Mar. R., 22, tbe court of appeals of Mississippi say, “Tbe lien of tbe judgment can only operate upon tbe interest which tbe debtor bad at tbe iime of its rendition.” In Adams’ Doctrine of Equity, page 311, it is said, “The judgment creditor is entitled to tbe debtor’s real interest, alone subject to bis equities as they existed at tbe date of tbe judgments.” And Chancellor Kent, 4 Kent’s Oom. 437, says, “ After all, the lien amounts to but a security against subsequent purchasers and incumbrancers.” In White & Tudor’s -Equity Oases, vol. 2, ¶. 107, numerous adjudged cases are cited to tbe effect “that a judgment lien is not to be regarded in the light of a purchase, or as entitling the creditor to the preference over prior equities, and unrecorded deeds.” We think these authorities will sustain the position assumed, that the interests of the creditor in the real estate of the debtor, is limited to the actual interest of the debtor at the time the lien attaches, and he holds it free from subsequent alienations or incumbrances, but subject to prior alienations or incumbrances.

Turning to the facts of the case, there can be no doubt but that Trapnall was, even prior to his first purchase, under the Trapnall & Cocke judgment, informed of the nature of Wassell’s interest in this property, and the terms of his contract with Byrd and the Bank; he admits, in his answer, that he had notice sufficient to put him upon inquiry, and he well knew at the time of his purchase, under the United States judgment, that Wassell had nearly or quite completed the work on the ware-house. Trapnall was the owner of the property whilst the work was progressing from the time of his prior purchase until his sale to the Bank,'and must have been well acquainted with all that related to Wassell’s claim; for, during the time, Wassell was engaged in making the repairs, he had been judgment creditor, attorney, purchaser, vendor and purchaser again; he resided in the same city, where the property was situated, and the work was done. From all these considerations, as well as from the evidence, and his own admissions, he well knew all the facts of the case, and being an eminent attorney, he also knew the nature of the in-cumbrance on the property when he bought it. There can be no hardship then in holding his purchase subject to Wassell’s prior equity; because we must presume that, with a knowledge of the facts and of the law, he bought the property with an eye to Wassell’s claim, and bid for it, less than he would otherwise have done, by the amount due Wassell, so that in fact he loses nothing by paying this sum. Or, if otherwise, knowing tbe facts, •he bought at his peril, and must be held to account.

The report of the master, sustained by the evidence, shows that, clear of all expenses for repairs since he took possession of the property, he has received exceeding $500, the sum due Was-•sel, which sum was, by the Circuit Court, decreed to the complainant ; and, under all the circumstances of the case, we think •the claim of the complainant of a highly equitable character, well sustained by the evidence, and, so far as regards the. claim against Trapnall, the decree ought to be affirmed.

But, so far as the decree goes to charge Watkins with the value of the repairs made upon the buildings, purchased by him, prior to his purchase, we think the Circuit Court erred, and, for this error the decree, as to him, must be set aside; and, as Watkins is properly chargeable with the value of the work done upon the buildings, after he purchased the same, and before Wassell was notified by him that he would not be responsible for repairs, and inasmuch as we cannot readily ascertain from the evidence what amount of work was done, after such purchase and before such notice, the case must be remanded, with instructions to the Circuit Court, by reference to the Master or otherwise, according to the practice in said Court, to ascertain the amount of work go done, and the actual value thereof, and to render a decree in favor of the complainant for the same.

.Hon. Chief Justice Watkejs not sitting,


author: Mr. Justice Scott

text:
    McPaxton, Ex. vs. Dickson et al.
    "Where a portion of the heirs and distributees of an estate employ an attorney, to contest the settlement of the executor, the Probate Court has no power to direct the payment of the attorney’s fee, by the executor, out of the residuary fund of the estate: if it be a proper case for contribution, by all interested in the estate, the remedy is in chancery only.

      Affeál from Sevier Ciremt Court.

    Hon. SheltoN WatsoN, Circuit Judge.
    S. H. Hempstead, and B. F. Hempstead, for tbe appellant.
    To reverse these proceedings, and set aside this allowance, tbe appellant relies on tbe following points :

      First — Because a court of probate is not invested with chancery jurisdiction; and that, without such ample and discriminating powers, it could not legally mate the allowance in question.

      Second — That, even admitting chancery jurisdiction, still the Court erred, because they had not, by process, or any other mode known to the law, acquired jurisdiction over the parties in interest.

      Third — Even conceding jurisdiction, and that all persons in interest had been before the Court; still the finding was not warranted under the authority found in 1 J. Oh. Ref. 22, as there was no evidence to authorize any such summary interference of the Court in favor of counsel, or the persons employing such counsel.

      Fourth — The decision is wrong, not only on the ground of public policy, but against one of the prominent principles which govern courts of equity; for, if affirmed, it will produce instead of prevent litigation.

      Fifth — Because the decision is in no way final, as to the matters the exceptions filed pretend to settle, as the same matters may be renewed and re-investigated in a court of chancery.
    CurraN & Gallagher, for the appellees.
    The question we shall present in this case is, - whether where a distributee incurred a necessary expense, either for costs or solicitor’s fees in and about an estate, whereby all the distributees are bene-fitted, whether he is not entitled to a pro rata contribution from the rest of his co-distributees, and whether a solicitor has not a general lien for his costs on the duty recovered by his diligence, and if it is a fund in court, whether the solicitor’s lien dóes not attach to said fund? We think such to be undoubtedly the case. A solicitor has a general lien for his costs on the duty recovered by his diligence. If that is a fund in coirrt, his lien attaches to it, and it will not be paid out without providing for them. 1 Hoffman's Chemcery Practice, page 34/ Irvi/ng vs. Yia/na, 2 Yowng <& Ja/rvis 10.

    If costs are decreed to be paid by defendants generally, each defendant may be called upon to pay the whole, and the court will enforce contribution among them. 2 Hoffmcm's Chmicery Practice, p. 12/ 2 Fowler's Fxch. Pr., a/nd case cited, Jones vs. Ca/wthorne.

    Even a decree or judgment arising upon a matter distinct from them in litigation, cannot be set off to the prejudice of solicitor’s lien. Ib. 16 • Pimloin vs. Ymidenleigh, 1 Pañge 624.

    The doctrine of contribution is not so much founded on contract, as on the principle of equity and justice, that where the interest is common, the burden also should be common, and the principle that equality of right requires equality of burden. CmnpbeZl vs. Messier, 4 John Oh. Rep. 334. %

      , “In a recent case where, in a creditor’s suit, a fund had been realized by the diligence of the plaintiffs, and the assets were more than sufficient for the payment of the debts, the costs of tbe plaintiff as between party and party, were ordered to be paid out of tbe general fund. 2 Willicmns onMa’rs,j¡>. 1459/ Btmton vs. JKalfield, 1 Keen 358.
   Mr. Justice Scott

delivered tbe opinion of tbe Court.

Tbe case presented by this record'is, that there being several beirs of John Paxton, deceased, two of them, tbe appellees herein, feeling dissatisfied with- tbe course of conduct pursued by tbe executor in tbe settlement and management of tbe estate, and desirous to stimulate him to a more strict performance of bis duties, to which they allege him derelict, employed counsel who rendered tbe professional services they required, made out bis bill against tbe parties who Employed him, and upon their application tbe Probate Court ordered it to be paid, by tbe executor, out of tbe residuary funds of tbe estate, and that be credit himself for tbe sum so paid out, that Court being of tbe opinion that although these counsel and atttomey’s fees bad been incurred at tbe instance of two only of tbe several distributees, tbe burthen of their payment ought to be borne in equal proportion by all of them. Tbe nature of tbe professional services rendered} and so ordered to be paid for out of tbe estate, will appear, by their specification, in tbe account made out by tbe counsellor and attorney, which is as follows:

Hannah L. DioesoN, by JohN Digxson, hse guardian, and JohN DicKSON, a aiute, by JohN Dioeson, his Next eeiend,

To Thomas HuMo/rd, Dr.

1850. For retainer and arguing motion to quash settlement of Jesse McPaxton, as ex’r of tbe last will and testament of John Paxton, deceased, in tbe Sevier county court of probate, at tbe January term,

1850,. $ 50 00

For drawing exceptions to tbe settlement of tbe said Jesse McPaxton, as such ex’r, and arguing tbe same in said court of probate, and obtaining order of said -court referring said settlement to an auditor,. 100 00

For drawing complaint, affidavit, and motion against said Jesse McPaxton, as sucb ex’r, and arguing tbe same in tbe court of probate of Sevier county, and obtaining rule on said Jesse, as sucb ex’r, to perfect bis bond as sucb ex’r,. 100 00

For attending and arguing exceptions of said Jesse, as sucb ex’r, to report of auditor and settlement of account, . 50 00

For atttending court, and arguing matter of reference before j ury, arising upon exceptions to auditor’s report and settlement of accounts,. 50 00

$ 350 00

From tbis decision of tbe Probate Court, tbe executor appealed to tbe Circuit Court, all the parties waiving upon tbe record tbe affidavit, and all technicalities and formalities relating to tbe appeal. The cause was beard there “ upon tbe transcript and bill of exceptions certified from tbe Court of Probate,” as is stated in tbe record of tbe Circuit Court; no error being found in tbe proceedings, opinion and judgment of tbe Probate Court, they were in all things affirmed; and tbe executor appealed to tbis Court.

N o question was made below, nor is made here, as to whether or not tbe professional services in question were rendered, or as to the reasonableness of tbe charges made for them; but only as to whether they were a proper charge upon tbe residuary fund of tbe estate in tbe bands of tbe executor undistributed.

Although it might be held that tbe solicitor has a lien for his reasonable charges on tbe duty recovered by his diligence, and if it be a fund in court, that his lien would attach to the fund, that would not-determine-the question involved; .because it is not pretended that the solicitor in tbis case was retained'by all the persons interested in the fund. Tbe proposition could therefore establish nothing more than that bis lien would attach to the'interest of his client only.

The true question is one of contribution simply between parties, resting not upon contract but upon principles of pure equity ; that where the interest is common, the burden should also be common; and that equality of right requires equality of burden. Campbell vs. Messier, 4 John. C. R. 334.

The probate courts, as regulated in our system, in the main proceed in rem, not inter p>artes¡ otherwise than indirectly in general, although, in particular cases, means are provided by statute, whereby persons interested may come in and become direct and active parties. And consequently, although in its legitimate operations in rem, in winding up the estates of deceased persons, and incidentally allowing proper charges against the subject matter of its cognizance, it does, indirectly, work contribution, it does so, not as a principal matter of jurisdiction, but simply as an incidental consequence of its jurisdiction in rem in matters of administration. It is mainly in the chancery court that contribution is administered, as a principal head of jurisdiction, after the parties are called in and heard upon the merits of their case. It cannot be pretended that the Legislature has, any where, in express terms,, invested such a jurisdiction concurrently in the probate courts: and it is by no means clear that such an act would be constitutional if passed. And it would be but a slight ground upon which to imply such concurrent jurisdiction, that the fund, out of which jurisdiction is sought, is committed by law to the custody, for the time being, of the Probate Court. As well might an individual claim such a jurisdiction because he happened to be the' custodian of a like fund, and was authorized to preserve and administer it in a specific manner for the benefit of the parties interested.

In this case, where the Probate Court has attempted to perform the functions of the chancery court, without first calling the parties to be affected before it, that they might be heard, -there is no pretence that the burden, which the contribution sought is to lightenj was taken on, either in the ordinary course of administration, or by any party which the law recognizes as a custodian of the estate alleged to have been preserved, or -as an agent in its administration; and bence tbe claim for contribution rests solely upon grounds of pure equity, and not upon strict law.

TJnder wbat provision of tbe law were these parties authorized to employ attorneys and counsellors, to aid in tbe administration of the estate? None can be pretended. If employed at tbe suggestion of their own interests, and tbe result was favorable not only for themselves, but for others, whose interest was inseparably united with their own, it might be a case to submit to the chancellor to be determined by him upon an equitable claim for contribution; but it made no case for the cognizance of the Probate Court.

¥e think, therefore, that the judgment of the Circuit Court was erroneous, and it must be reversed, and the cause remanded, with instructions to that Court to sustain the exceptions taken in the Probate Court, and make such decision as that Court ought io have made, in conformity with this opinion.


author: Mr. Justice Waleek

text:
    Clemm vs. Wilcox, as ad.
    A 'tenant, who enters under the title of his landlord, cannot continue to hold over, and yet contest his landlord’s title to the premises, or to the rents, by setting up an adverse after acquired title to the premises in himself, though he had given notice to the landlord’of that fact, and that he would no longor hold under him or pay him rent.

      Writ of Error to Crawford Circuit Cowrt.

    The Hon. A. B. CegeNWOod, Circuit Judge.

      CuebAN, for tbe plaintiff.
    A tenant may dispute the title of his landlord, when he disclaims the tenure, and claims the fee in his own right, and the landlord has notice thereof, and the relation of landlord and tenant theretofore existing is put an end to. Walden et al. vs. Bodly, 14 Peters S. C. Rep. 156; Jackson vs. Davis, 5 Cow. 123; Jackson vs. Rowland, 6 Wend. 666; Jackson ex. dem., Waldron & Eltie, his wife vs. Welden, 3 J. R. 283.
   Mr. Justice Waleek

delivered the opinion of the Court.

This was an action of assumpsit, tried in the Crawford Circuit Court; and, by consent of parties, submitted, upon the general issue, to the Court sitting as a jury, upon the following agreed state of facts: That the plaintiff’s intestate, in his [life-time, entered into an agreement with John Drennen for the purchase of two town lots, and thereafter intestate erected a two-story brick house, and other buildings, upon the lots; that intestate resided upon the lots until his death, without having paid the purchase money for them; that "Wilcox, as administrator, rented the premises to the defendant, Clemm,for $1 per month, and that defendant entered upon the premises as tenant under Wilcox, ancD paid to him the rents for six months, when Drennen conveyed the lots by deed in fee simple to the defendant; whereupon defendant informed Wilcox, the plaintiff, of his thus acquired title to the premises, and that he would no longer pay him rent for the same; that Drennen, at the time of making the agreement with the intestate, was seized in fee of the premises; that intestate entered, under a parol agreement, and erected the buildings on the lots, with the knowledge and consent of Drennen; all of which facts were well known to the defendant, who has ever since had possession.

It was further agreed between the parties, that if the plaintiff, under the above state of facts, was entitled to recover the rents from the defendant, that he is entitled to the sum of $144 20, with interest from the 8th of October, 1849, up to the rendition of the judgment.

TJpou this state of facts, the Court, sitting as a jury, found a verdict for the plaintiff, and rendered judgment accordingly. The defendant moved the Court to set aside the verdict, and grant a new trial, but the motion was overruled. The defendant excepted and brought the whole case before this Court for consideration.

The contest between the parties is narrowed to a single point. Did the deed from Drennen (the legal owner of the premises) to Clemm, conceding that he thereby acquired a legal title to the premises, and his notice to the plaintiff of that fact, and that he would no longer hold under him or pay rent, so change the relation of landlord and tenant between the parties, as to exempt the defendant from further liability to the plaintiff as his tenant. Or, in other words, can the tenant, who enters under the title of the landlord, continue to hold over and yet contest his landlord’s title to'the premises, or to the rents, by setting up an adverse after acquired title to the premises in himself ?

The general rule is certainly well established that he cannot; and it rests not alone upon technical grounds, but is founded in convenience and sound policy; for although the landlord may not hold by a superior title to some other, yet he had the posses-sory title, which was of value to him and to the tenant, who by entering under him admitted his right to the premises, and it is a breach of good faith to retain the possession of the premises and set up an adverse title to that of his landlord, acquired during his tenancy. The rule in such cases is, that if he wishes to contest with his landlord the light of property, he must first surrender to him his rightful possession thereof. (Read vs. Shepley, 6 Verm. Rep. 602; Galney vs. Ogle, 2 Binney 468; 3 Barb. Ch. Rep. 528, Bank of Utica vs. Mereau.) By setting up such adverse title, he so far violates his contract as tenant, as to make-it discretionary with the landlord to dissolve the relation of land lord and tenant between them, and to proceed at once to evict him or not, but the tenant can avail himself of no such advantage. The only benefit which may result to the tenant is, that it fixes a period, from which his adverse possession dates, and which, if permitted to continue, may eventually enable him to plead the statute bar of limitation against his landlord. The case of Jackson vs. Rowland, 6 Wend. 666, is the most favorable to the position assumed by the counsel for the plaintiff in error; but upon examination of that case, it will be seen the relative position of landlord and tenant, did not, in strictness, exist between the parties, as conceded by the Court, when commenting on the facts of the case. In addition to that case, and the other cases cited by counsel, is that of Calhoun vs. Perrin, 2 Brevard's Rep. 247, which would seem to hold that an adverse title, acquired by the tenant after his entry upon the premises, might be pleaded in bar of a recovery by the landlord in a suit against him for possession. But the current of decisions would seem to establish a different rule, and one which we think best sustained in reason and justice. There was, therefore, no error in the decision and judgment of the Circuit Court in denying the defendant the benefit of this defence. Let the judgment be affirmed.

Mr. Chief Justice Watkius said;

1. The case was submitted upon an agreed statement of facts, a practice greatly to be encouraged. The submission was necessarily to the Court, not to a jury, or the Court sitting as a jury; nothing remained but for the Court to declare the law, with reference to the pleadings, arising upon the facts admitted, when made a part of the record, either by the agreement of parties with leave of the Court, or by means of a bill of exceptions. In such case, a motion for new trial and bill of exceptions to the decision of the Court overruling it, involve a manifest inconsistency, though resorted to, as it no doubt was,, in this case, out of abundant caution.

2. There is no place here for the application of the principle recognized in Crittenden vs. Woodruff, 6 Eng. 82; that the grantee is not estopped, by the acceptance of an estate,, from denying that he acquired any estate from the grantor, and may, therefore, dispute his widow’s right to dower dependant upon the estate of her husband. The relation of landlord and tenant, with or without deed, creates an equitable estoppel, mutual in-its operation. It arises wherever one person has obtained possession of the land of another under an obligation, express or implied, to restore it, or to perform some further debt or duty, growing out of the contract, by virtue of which he obtained the possession. Such is the case of a vendee in possession, under an agreement that he shall acquire title on payment of the purchase money, and the rule applies between mortgager and mortgagee. The obligation of the tenant to restore the possession, and to pay a reasonable compensation for the use and occupation, while he remains in possession, though no rent has been reserved, (Digest, title, Landlord and Tenant, sec. 13,) is implied from the relation of landlord and tenant: an obligation resting upon sound policy and essential for the preservation of good faith.

3. The tenant may show that the title of the landlord has ceased or become extinguished, since the creation of the tenancy. But this is not for the gain or advantage of the tenant, but for his protection, and presupposes the inability of the landlord to assure him the further continuance of the possession derived under the lease. The tenant may acquire, or accept and hold under a paramount outstanding title, whenever he has no alternative but to attorn or be turned out of possession. In this case, the intestate of the plaintiff below, according to Keatts vs. Rector, 1 Ark. 418, following the course of decisions upon the statute of frauds, by entering upon the land in question, and proceeding to build a house, upon the faith of a parol agreement of purchase, acquired an equitable estate, by reason of his part performance, which took the case out of the statute, and entitled him to a decree for full and specific performance on payment of the purchase money, or the performance of such other condition as may have been imposed on him by the terms of the contract, the time of payment not appearing to he of the essence of it. This equitable estate descended to his heirs, was assets for the payment of his debts, and by statute, concerning administration, the right of possession and authority to lease it became vested in the plaintiff as his representative. Drennen, the vendor, might have prosecuted his demand for the purchase money against the estate of the intestate, or he might have recovered the possession by ejectment, if the time of payment had elapsed, or he might have proceeded by bill in chancery to assert his lien, and subject the land to the payment of the purchase money. If the vendor, by the assertion of his superior title, in any legitimate mode, had placed the tenant in a position, where he was liable to be ejected by process of law, he w'ould then have been at liberty to renounce the tenancy, and acquire the better title. But here the intestate had, and for aught that appears, his heirs or representatives have yet a continuing right to perfect his equitable estate into a legal one, and acquire the title by performance of the conditions. The conveyance to the defendant, by Drennen, was a declaration of intention, on his part, to cancel the original contract of sale, or to treat it as having been forfeited by the intestate. Such power to declare a forfeiture, does not appear to have been reserved to the vendor; and though it might be acquiesced in, the conveyance to the defendant could not, of itself, operate to divest the equitable estate of the intestate, an incident to which was the right of possession. That right of possession had been confided to the defendant under an agreement of lease. The defendant stands in the attitude of having voluntarily acquired the naked legal title; the effect of which may be to subrogate him to all of the vendor’s rights, including his lien for the purchase money, his right to foreclose or bring ejectment; but. on principle, according to the doctrine of equitable estoppel, in order to avail himself of any benefit derived from the acquisition of a hostile claim, lie mustfirst have placed himself in the position of the vendor, by surrendering the possession to the landlord. The tenant, who disclaims, or holds adversely, ought not to be allowed to deprive the landlord of his election to determine the lease and bring ejectment, and so, under the statute, to be restored by the summary proceeding of unlawful detainer, or to hold him accountable for tbe accruing rents, bj sheltering himself under an outstanding better title, unless the acquisition of that title, or his submission to it, become essential to his continued enjoyment of the possession. His renunciation, to be lawful, must be compulsory : until then, his possession is that of the landlord, and which, as against an adverse claim remaining dormant or unas-serted, may ripen into a perfect estate, and so become an important muniment of title. But, even if the attempt of the tenant to couple his present possession with an outstanding title, acquired during the tenancy, were not a breach of his fidelity and duty, according to the view I take of this case, the title of the landlord did not cease or determine by the conveyance to the tenant, whereby he acquired such title as Drennen had to convey and no more, which was, in equity, a lien upon the land, until enforced by suit, not inconsistent with the equitable estate and right of possession which the intestate had acquired.

For these reasons, I concur in the conclusion that the judgment, of the Court below ought to be affirmed.