author: Birchard, C. J. Hitchcock, J.,

text:
    Jacob Boos vs. Samuel Ewing, John D. Martin and others.
    The vendor of land, by taking a mortgage upon the land sold, to secure the payment of the purchase money, does not extinguish his prior equitable lien; and the lien ofajudg. ment creditor obtained between the date of the mortgage, and the time when it is recorded, will be posponed to the vendor’s lien.
    This is a Bill in Chancery reserved in Fairfield County.
    The bill avers that Boos being seized of Lot No. 2, in Lancaster, conveyed it to Ewing & Martin, April 27, 1844, for $1,200, to be paid $600 in hand and $600 in six years, with the interest annually; that the first payment was made, and the second remains still unpaid, with the interest. That until the 4th April, 1845, he relied solely upon his. lien upon the estate for payment, but as the vendor’s lien was liable to be lost by a transfer and conveyance without notice, he took a mortgage upon the lot without any abandonment of his lien as a vendor to secure the purchase money. The bill avers that Martin & Ewing took the lot as tenants in common, and that the interest of Ewing is. chargeable with the sum due to complainant as a partnership debt, and is prior to all other claims or liens. The bill proceeds to set forth the recovery of several judgments against Ewing at the May Tehn, 1845, which were levied the land, and upon which a sale of Ewing’s interest for about 540, was made to Upfield, May'22, 1847, which sale is not yet confirmed. The judgment creditors and purchasers are made defendants, and complainant prays that a sufficiency of the proceeds may be set apart to satisfy one half the debt due from Ewing & Martin, or that the sale may be confirmed subject to his lien, as first lien holder, and for general relief.
    Ford,- one of the judgment creditors, answers, admitting the sale and the taking of the mortgage to secure the purchase money, alleges that his judgment for $622 11 and costs was rendered the 5th May, 1845, and his levy made 27th May, 1845, and the mortgage was not left for record until July 27, 1845, by reason whereof he and the other judgment creditors of Ewing are entitled to the preference. It denies that E. & M. were in partnership.
    The answers of Davis and' others are substantially like this. \ There was a decree below for complainant, from which the defendants appealed.

      Martin &f Effinger, for Complainant.
    The first question presented for the determination of the Court in this case is this : — Has complainant by receiving the mortgage in the bill mentioned, removed the vendor’s lien in his favor for the balance of the purchase money ?
    It is not questioned, that, up to the execution of said mortgage, the lien did exist. The answer only denies that part of the bill which charges that complainant “ did not intend, by taking said mortgage, to abandon his vendor’s lien.” And just here it may . be well to inquire, upon whom falls the onus probandi that complainant did, or did not, so intend ? We answer that it is thrown upon the defendants. First, because a party is seldom, if ever, required to prove a negative, and second, because in all adjudicated cases having a reference to the at bar, such has been the ruling of the Court.

      Prima facie, the vendor has never been held to do more than simply to show that the whole or a part of his purchase money remains unpaid, and that the lien arises in his favor, and must be overcome by proof adduced by the vendee, or those claiming under him. Judge 'Story, in his Equity Jurisprudence, 4th edition, p. 465, says: “ Generally speaking, the lien of the vendor exists, and the burden of proof is on the purchaser to establish that, in the particular case, it has been intentionally displaced, or removed by the consent of the parties. If, under all the circumstances, it remains in doubt, the lien attaches.” If what remains in doubt ? Why, simply this, that the vendor desired and intended to look to the estate sold, as his security, even then, the lien is said to attach — and in order to remove it, there must remain no doubt, that the vendor looks to some other security, as his assurance of payment — then, and not till then, does he abandon his equitable lien.
    This question of intention must always be determined by some outward act, or declaration, of the vendor — as, for instance, if he receives from the vendee an independent security, this has been held sufficient to remove the lien. The case of Naivee v. Prowse, 6 Ves. 752, was for a long time a leading case as to this question. Sir William Grant, in deciding the above case, says : “ Upon the question as to the claim set up by Mitchell to a lien, it is now settled that equity gives the vendor a lien for the price of the estate sold, without any special agreement. But supposing he does not trust to that, but carves out a security for himself, it still remains matter of doubt, and has not received any positive decision, whether that does or does not, amount to a waiver of the equitable lien, so as to preclude the vendor from resorting back to that lien, the security proving insufficient. Without entering into that question, whether every security necessarily amounts to a waiver, it is impossible to contend, that there may not be a security, that will have that effect, that will be a waiver. By conveying the estate without-' obtaining payment,- a degree of credit is necessarily given to the vendee. That credit may be given the confidence of the existence of such a lien. The of that may be the motive for permitting the estate to pass without payment. Then, it may be argued, that, taking a note or a bond, cannot materially vary the case. A credit is still given to him, and may be given from the same motive, not to supersede the lien, but for the purpose of ascertaining the -debt, and countervailing the receipt indorsed upon the conveyance. But, if the conveyance be totally distinct and independent, will it not then become a case of substitution for the lien, instead of a credit given on account of the lien ? Suppose a mortgage was made on another estate of the vendee, will equity at the same time give him, what is in effect a mortgage upon the estate sold, the obvious intention of burdening one estate being, that.- the other shall remain free and unincumbered.” Thus the reasoning of the Master of the Rolls is all directed to the intention of the parties, and he asserts that the vendee could only have been induced to part with the long annuities, (the independent security in that case,) in order that he might thereby disencumber the purchased estate of the vendor’s lien, and therefore have the more perfect dominion over it. Can such a reason exist, or such an inference arise, in the case at. bar? Would the incumbrance Of the land, by way of mortgage, in this case, have tended to give the vendees a larger dominion over the same ? Certainly no one will so contend, as by that means all the world is put on notice of the incumbrance, whereas, had the mortgage not been given, an innocent purchaser might have been found, to whom an absolute conveyance might have been made. Such a change of the tenure of the security, therefore, could only have tended to contract the dominion of the vendees over the land in question, and could only have been induced by the consideration stated in the bill, that is to say, that by this open declaration of the existence of the vender’s, lien, the world might be put on notice, and the vendees prevented from defeating the security of the vendor in the very thing sold. The intention of the vendor to '00^ t0 ^le lanc- as security, is thus but the more distinctly and proclaimed.
    In Mackneth v. Symmons, 15 Yes. 340, another leading case in point, Lord Eldon holds the following language in reference to the case of Naivsr v. Prowse: “ There is just difficulty to conceive how it should have been reasoned, almost in any case, that the circumstance of taking a security was evidence that the lien was given up, as in most cases, there is a contract under seal for the money. The Master of the Rolls having before observed that ihere may be .a security which will have the effect of a waiver, proceeds to express his opinion that, if the security be totally distinct and independent, it will then become a case of substitution for the lien, instead of a credit 'given on account of the lien — meaning that not a security, but the nature of the security, may amount to a satisfactory evidence that a lien was not intended to be reserved. And he puts the case of a mortgage of another estate, or any other pledge, as evidence of an intention that the estate sold shall remain free and unincumbered. It must not, however, be understood that a mortgage taken is to be considered as a conclusive ground for the inference that a lien was not intended, as I could put many instances that the mortgage of another estate for the purchase money would not be a decisive evidence of an intention to give up the lien, although, in the ordinary case, a man has always a greater security for his money upon a mortgage, than value for his money upon a purchase. And the question must be, whether, under the circumstances of that particular case, attending the worth of that very mortgage, the inference arises. In the instance of a pledge of stock, does it necessarily follow that the vendor, consulting the convenience of the purchaser by permitting him to have the benefit, therefore gives up the lien which he has. Under all the circumstances of that case, the judgment of the Master of the Rolls was satisfied that the conclusion did follow. But the doctrine as to taking, a mortgage, or a pledge, would be carried too far, if it is .understood as applicable to all cases, that a man taking one pledge, therefore necessarily gives up another, which must, I think, be laid down upon the circumstances of each case, rather than universally.”
    See also the case of Williams v. Roberts et al, 5 Ohio Rep. 35, where this whole doctrine is beautifully reviewed, and where the Court, in speaking of the mortgage, or other security, carefully and guardedly describe it as “ collateral,” before it can have the effect of destroying the lien.
    It thus appears most evident that so long as the vendor relies upon the estate sold, connected with the personal security of the vendee alone, no question can arise as to the existence of this lien in favor of the purchase money; and such lien can only be destroyed by such positive outward acts of the vendor as convince the mind that he looks away from the estate sold, to some distinct and independent security. Can it be pretended in this case, that the complainant by taking his mortgage on the estate sold, and thus in a manner drawing this identical security the more closely to himself — •looking to no other property or responsibility, but simply changing the tenure by which he holds the estate sold — has manifested an intention of disencumbering the land of the vendor’s lien and of giving to the vendee, or those claiming under him, as judgment creditors, (and not as purchasers,) a more complete dominion over the same?
    But secondly. Has not the debt to complainant a strong equitable claim to be paid out of the proceeds of the sale in question in another view of the case ? It is charged in the bill that the debt to complainant is a partnership debt, due to him from the firm to whom he conveyed the said estate. This allegation is not denied by the answer, and therefore stands out as an admitted fact. Shall, then, the proceeds of the sale of Ewing’s moiety be applied to the payment of his private debts, to the injury of complainant, in his character as creditor, of the partnership, or to the injury of Martin, the other partner. Can so monstrous a claim be preferred, with any degree of seriousness in a Court of equity ? No one attempted wrong has ever received a more rebuking discountenance at the hands Courts of equity than this very thing of plundering a part-in wrong of either of the firm creditors or the other partner, to raise the means for the payment of a private debt of any single member of the firm. There is no principle of equitable jurisprudence which has a more conservative influence in the commercial world than the one we have just referred to, and which tends in so great a degree to define the rights and obligations of firms, as contradistinguished from those of the individual members of the firm, separately considered. And the strong necessity for introducing such a rule is quite a sufficient reason for its establishment; for without it, where would be the possibility of protecting a joint concern from inevitable ruin from the prodigality or bad management, in his own private affairs, of any one member of the firm. So strongly has the equity of a claim, such as the one now presented by complainant, operated on the minds of this Court, that in the very face of a statute, contravening the principle we have been discussing, it has held that dower to a widow of a deceased partner could not be assigned in partnership lands to the injury of the remaining partner, or partnership creditórs. Sumner v. Hampson, 8 Ohio Rep. 328.
    It cannot successfully be answered to this, that the case at bar is different from the Sumner and Hampson case. For in this, as in that, there was an agreement of the partners that the land in question should be held to pay the partnership debt. This agreement is evidenced by the mortgage made to complainant, by which the premises in question were pledged, as between the partners, to pay this .firm debt, and this long before the rendition of the judgment in favor of which the proceeds of the sale are demanded by some of the defendants. And here it should be marked that the mortgage of Ewing & Martin to complainant was dated and executed though not delivered for record, on the 4th day of April, A. D. 1845, whereas, the judgments of defendants, Davidson et als., were not rendered until 22dof May, A. D. 1845. Now if the said conveyance to complainant did not attach ás a mortgage lien until after the rendition of the said judgments, yet, surely in the eye of a Court of equity, so far as Ewing & Martin are concerned, no instrument which they could have prepared would more fully have answered the purpose of a declaration or agreement, that the land in question should be charged with the payment of their partnership debt. This intention having been thus manifested by the partners, before the defendants, Davidson et als., claimed to have any lien, places this case on a footing with the case of Green v. Green et ais., 1 Ohio Rep. 535, where partnership real estate, held under a declaration of the partners that it should be sold to pay partnership debts, was declared by this Const as so sacredly belonging to the creditors as to defeat the application for dower on the part of a widow of one of the firm. An additional authority on this point may be found in Story’s Equity Jurisprudence, vol. 2, p. 672, where that learned Judge uses the following languge, to wit: “Another species of • tacit or implied trust, or perhaps, strictly speaking, of tacit or implied pledge or lien, is that of each partner in and upon the partnership property, whether it consists of lands, or stock, or chattels, or debts, as his indemnity against the joint debts, as well as his security for the ultimate balance due to him for his own share of the partnership effects” — and the.learned author refers to Collyer on Part. B. 2, ch. 1, p. 65 ; Wert v. Skip, X Yes. 239, 456; Hoxie v. Carr, X Sumner R. X8X, X82, &c. &c.; also to 4 John’s Ch. R., p. 522, where it is expressly decided, “that an assignee or separate creditor of one partner, is entitled only to the share of such partner, after the settlement of the accounts and after all just claims of the other partner are satisfied — that the interest, therefore, of each partner in partnership property, is his share of the surplus, subject to all part- . nership accounts.”
    But, finally, and looking only to the mortgage, has not the complainant a higher equity to the funds in question than the defendant judgment creditors ? We take it that this point was expressly decided in 7 Ohio Rep. in the case of the Muskin

      gum Bank v. the Adm’rs. of E. Carpenter. In that case a mortgage was taken and defectively recorded, (the Recorder omitting the name of one of the subscribing witnesses.) Subsequently to the execution of the mortgage, certain creditors of Carpenter sued and obtained judgments, and the contest for the fund was had in a Court of equity. Now, in this case of Carpenter, the mortgage as recorded was no notice, it had just as well not been on the record at all, and yet the Court, without a dissenting voice, took the funds- arising from the sale of the mortgaged premises, away from the subsequent judgment creditors, and gave them to the mortagee. It will not do to answer, that there was a peculiar equity in favor of the Muskingum Bank in the above case, growing out of the defective execution of the mortgage. It was attempted on the part of the defence, to show that at the time of the execution of the mortgage, but one individual attested as subscribing witness, but the testimony was conflicting, and the Court expressly decided, that the weight of evidence was in favor of the opinion that both witnesses attested it at the time of its execution, and that the stronger probability was that the Recorder had omitted to record the name of Thos. Fricker, one of the attesting witnesses. That was a case then of a perfectly executed mortgage never put on record, yet preferred to subsequent judgment creditors. In the decision of the last mentioned cases, the Court say, “ whenever rights are acquired, depending on, or in reference to a specific property,' they are regarded as possessing a superior equity to a general lien upon all the estate of a debt- or, as the lien by judgment. The latter does not constitute a property per se or aright in the land itself — it only confers the right to acquire such a property by levy. A mortgage is sometimes called a lien for the debt, but it is something more, — it is a transfer of the land itself — the mortgagee is a purchaser, £ Cranch, 355, do. 73. He takes the interest of the debtor subsisting at the time, and no posterior rights can be preferred to his. Such is the plaintiffs position — he has a specific interest in the lands, and is entitled to a preference over creditors by subsequent judgments, 2 Peere Williams, 279; 3 Ves. 581; 3 Dess. 568; 3 Ohio Rep. 539; 5 Ohio Rep. 181,” &c. — and all this of a mortgage never recorded.
    We conclude then,
    First. That complainant has a prior lien in favor of his purchase money, because he has always looked only to the estate sold, as his security.
    Second. That complainant’s debt is chargeable on the land or fund, by reason of its being a partnership debt, and the land or fund partnership property.
    Third. That, without record, the mortgage is to be preferred to subsequent judgment creditors, the contest being in a Court .of equity.

      Thomas Ewing, for Complainant,
    submitted the following additional argument:
    I contend that the vendor is entitled to the fund in this case, by virtue of his general lien. He has, in the language of Lord Eldon, in the case of Maruth v Symmonds, 15 Vez. 350, “that natural justice and-equity which excite a wish,” that the lien could be enforced; and the weight of authority is, I think, in accordance with that natural justice.

      Generally, the vendor has a lien upon the land sold, for the purchase money, and that lien subsists, unless the vendor show a purpose to release the land and take other security. It must be something that shows “ that he did not intend to trust to the estate as a pledge for his money.” Long on Vendors, Vol. 3, p. 123.
    The question is not whether the vendor intends to rely upon his general lien, but whether he intends to rely upon the estate as a security. If he intends to rely on the estate, the law gives him a lien upon it — and it can hardly be said that he shall lose that lien, because he showed a purpose to strengthen it — not to abandon it. The essence of the thing — that at which a Court of equity looks — is the fact of lien — the form is of little con-secluence to the Court or to parties.
    this case it is clear that Boos did not intend to abandon the lien on the estate, or the vendor’s lien, until he got a better, on the same property. He looked to the land sold for his security from first to last, and the act which is claimed as evidence that he had abandoned it, directly proves that he especially relied on it.
    Equity does not abandon the substance and pursue the shadow— disregard the essence of the thing and insist on the form. Some of our State Courts may, for aught I know, have been misled by this species of fallacy; but the English Chancery lays down the true rule on the subject, and adheres to it. Did the vendor intend to trust to the estate as his security, or did he intend to abandon that and rely on something else ? If he relied on the estate, he retains his lien upon it. If he did not, but took the other security of some other person, or on some other thing, he has lost it. See 16 Vez. 348,50,3d Sug., Vend. 123. There is an opinion of some of our Judges against the propriety of sustaining any lien (upon land) which is not of record. Such an opinion whether resting in sound policy and the just principles of jurisprudence or not, might influence the acts of a legislator who may make the law, but not a Court > whose duty it is to declare it.

      P. Van Trump, for Defendants.
    The precise question here presented, has not been decided by this Court in Bank, nor to my knowledge, has it been adjudicated on the Circuit.
    In the case of Tiernan v. Beam et als., 2 Ohio Rep. 383, the legal title had not passed from the vendor, or his representatives, to the vendees, at the time the lien was sought to be set up against the land. The question in that case was, (the vendor still retaining title) whether a note with independent personal security, was an extinguishment of the implied equitable lien, and the Court very properly held it was not, especially when it was coupled with the proof that it was contract of the parties that the vendor should retain the legal title as security for the unpaid purchase money. It will not be denied that if the question was between an actual purchaser from Ewing, for a valuable consideration, without notice of the secret trust, the law would be clearly in favor of said purchaser, against the lien. This is so plain a legal proposition, that it is not controverted. Now, upon what principle is this legal rule founded. It is unquestionably upon the ground that the vendor has parted with his title, and that the purchaser has yielded a valuable consideration, without'notice of the hidden trust as between the original vendor and vendee.
    ' In the case at bar, the vendor passes at once full and complete title to the vendee; thereby giving it out to the world that he has no claim upon the vendee, or the lands, for the purchase money, and suffers a period of more than a year to elapse before he places his mortgage upon record, giving notice of his secret claim for the purchase money yet unpaid. In the meantime relying upon the facts as they appear openly to all the world these judgment creditors put themselves exactly in the position of a tona fide purchaser for a valuable consideration without notice, by incurring a large bill of costs in ordering out executions, and making levies, a proceeding they never would have adopted had'they been cognizant of the large claim now set up by-complainant as,a lien upon the lands levied upon. Who can say, so far as the facts appear in the case, but what these judgment creditors of Ewing, became such from the very fact of his being in possession of this land, unincumbered by, any apparent outstanding claims against it ?
    In this view of the case, after the levies were actually made upon the land in question, these judgment creditors stand upon very different ground from a creditor who has a mere lien by judgment without levy. What I claim in this connection, is, that push this doctrine of a vendor’s implied lien to its extremuPon the authority of even the land-worshipping spirit of decisions, it is at last, only an implied lien in favor of the vendor, borrowed by the English Chancellors from the civil law.- Yet even in England, the question as to what shall be an extinguishment of the lien, is by no means clear and well settled. In Ohio we have seen fit to adopt the lien, with as yet no very clearly defined limits. In some of the States, such as Pennsylvania, Georgia and Massachusetts, it is rejected altogether, as unsuited to a country in which, by the spirit and habits of the people, and the condition of the country, real estate has become a species of merchandize and traffic, passing from one to another almost with the facility of a chattel. In the several cases of Patterson et ais. v. Johnson et ais., 7 Ohio Rep. 225, 1st Part; Williams v. Roberts, 5 Ohio Rep. 35; Tiernan v. Beam, 2 Ohio Rep. 483; Jackman v. Hal-lack, 1 Ohio Rep. 319; Bank of Muskingum v. Administrators of Carpenter et als., 7 Ohio Rep. 21,1st Part, no question was, or could be raised, as to whether a mortgage taken by the vendor from the vendee on the same land, extinguished his prior equitable lien, when the rights of third persons intervene. It is, therefore, a new question in Ohio. , It is claimed by counsel on the opposite side, that it rests upon us to show that the vendor, in this case, waived his implied lien for the purchase money. We admit that the current of English cases, and the doctrine of one of our own Judges, goes to this point. But what we claim in the case at bar is, that we have shown this fact, by the taking of the mortgage, which, by the presumption of law, overrides the presumed equitable lien, in favor of the vendor, arising out of the mer'e fact of sale. And the case is here, upon the proposition now under discussion, narrowed down to this single point: Did the mortgage, ipso facto, operate in law as an extinguishment of the prior equitable implied lien ? In other words, does the lesser merge in the higher security ?

      This whole doctrine of a vendor’s implied lien, is ably and fully examined by Chancellor Walworth, in the case of Fish Howland, 1 Paige’s Rep. 20 ; and to which I call the special tention of the Court. I hope the Court will examine the case itself, as the review of the authorities by the Chancellor is entirely too lengthy to be copied into a written brief. ' After examining some forty cases, the Chancellor sums up as follows:
    “ Lord Eldon seems to think that the question of lien or no lien depends altogether upon the intention of the parties, and that each case must be determined upon its own particular circumstances If the actual intention of the parties was to govern the decisions of the Courts, the lien would seldom be sustained ; for it is probable that not.one person in a hundred, who conveys or purchases real estate, is aware of the existence of such a principle of equity. A much safer rule, I apprehend, is, to sustain the implied lien whenever the vendor has taken the mere personal security of the purchaser only, and to consider any bond, note, or covenant given by the vendee alone, as intended only to countervail the receipt of the purchase money contained in the deed, or to show the time and manner in which the payment is to be made, unless there is an express agreement between the parties to waive the equitable lien; and on the other hand, to consider the lien as waived whenever any security is taken on the land, or otherwise, for the whole or any part of the purchase, unless there is an express agreement that the equitable lien on the land shall be retained. This constitutes a safe rule, easily understood, and which I consider .established by a weight of authority in this country which is not easily shaken. And I believe no English case, previous to the revolution, will be found in opposition to these principles, except the case of Farwell v. Heele’s, which is overruled by Chancellor Kent, in Green v. Garson.” ■

    T shall neither have time nor space to go into an examination of the various American cases upon this question. I therefore present to the Court the mere digested abstract of the points decided by them, as collected from\he different Digests of the Repm.ts;

      “ A vendor, taking a mortgage on the subject sold, to secure the purchase money, can only claim under the mortgage and its terms. The mortgage supercedes the implied equitable lien for the purchase money, which, but for the mortgage, would have attached to the subject;” Little v. Brown, 2 Leigh’s Rep. 353. ' >
    This is a decision by th,e highest- Court in Virginia, where the English doctrine as to the existence of the mere equitable lien of the vendor, as against the vendee, and all others with notice, has been repeatedly recognized in its fullest extent.
    “ Whenever any security is taken on the land sold, or otherwise, for the whole or a part of the purchase money, the equitable lien will be waived, unless there is an express agreement that it shall be retained; ” 1 Paige, 20 ; 2 Yerger’s R. 84.
    “ A vendor of land executing a conveyance and taking a bond and security for the purchase money, discharges the land from his equitable lien, even while it continues the property of the purchaser; ” 5 Munf. R. 297.
    “ A mortgage of land by the vendee, to secure the payment of the purchase money, due by his vendor to the prior vendee, by agreemént between all the parties, is a waiver of the’general lien, which but for such mortgage, the immediate vendor would have had upon the land, to secure to him the payment of the purchase money ; ” Gilm. R. 329.
    I regret I cannot present to the Court the report of this case, for the reason that it may be inferred from the language used above as to the agreement between the parties, that it related to the fact that the parties had agreed to waive the lien; when, in my opinion, it unquestionably refers to the relation merely in which the parties stood to each other; that is, that the vendee of the second vendor agreed to execute a mortgage on the same land to secure the payment of the money which his vendor owed the original vendor.

      Here, then, are a number of American authorities upon the express point raised in the case at bar. The case of the Bank of Muskingum v. Adm’rs of Carpenter, is cited by counsel show that the vendor’s lien is 'paramount to the lien of a general judgment creditor. I do not propose to controvert this proposition. This doctrine, however, pre-supposes such vendor’s lien ■ actually to exist at the time the judgment was rendered. The very point raised in the case at' bar is, did this equitable lien exist in favor of the complainant at the time these judgments were rendered and the levies made under them ? The reason why a judgment is postponed to a vendor’s lien where they both exist in fact, is that the one is a general, the other a specific lien, upon the particular property in dispute. The moment the general lien of a judgment becomes specific by levy, in a case where there is no notice of the secret equity, it becomes, in my opinion, a matter of very grave doubt whether the specific lien of the judgment does not over ride the former, and subject the property to the payment of the judgment. Judge Lane, in delivering the opinion of the Court, in this very case of the Muskingum Bank v. Carpenter, confirms this distinction. He says : “ Whenever rights are acquired, depending on, or in reference to, specific property, they are regarded as possessing a superior equity to a general lien upon all the estate of the debtor, as the lien by judgment. The latter does not constitute a property, per se, or a right in the land itself; it only confers the right to acquire such a property by levy.”
    The levy of these judgments, then, upon the premises in question, has converted them, as to this property, from a general into a specific lien. If, then, the vendor’s mere implied equitable lien, by the taking of the mortgage, was merged in that instrument, being a higher security in pais, than the mere right raised by equitable implication, the complainant is confined to his rights under the mortgage, and is postponed to the superior, paramount, specific lien of the judgments, they being levied before the recording of the mortgage. The point upon the taking of this mortgage turns as much upon a question of °f the waiver of the lien. In either point of view, to some extent, a question of intention. Now, what was the intention of the complainant in taking this mortgage? It was, unquestionably, to secure the payment of the balance of the purchase money.
    The American cases already cited, go the point, that the taking of a mortgage is a presumed waiver of the lien. Apart from the force of these authorities, the allegations of the bill show that it was the intention of complainant to abandon his equitable lien, if he had any intention at all about the matter. If there was an absence of all intention in that regard, then the presumption of law in his favor falls to the ground. The bill alleges that complainant, fearful that his vendees might convey said premises to some person without notice, and thereby lose his security, was induced to take the mortgage in order to protect himself from the consequences of such conveyance. Now, what is the plain English of this averment ? Is it not that he intended to abandon an uncertain and indirect, for a more certain and direct security, and that the one should substitute the other ? He was not satisfied with the implied, and resorted to the express lien. The long interval of time which he suffered to elapse between the sale and the taking of the mortgage, shows with what intent he changed the liens. He had come to that state of mind in which he made his election between the two modes of security.
    I do not propose to go into an examination of the English cases. In the language of Judge Story, in the case of Gilman v. Brown, 1 Mason, 215, speaking of the effect of the English decisions upon this question of the vendor’s lien, “ the state of the law on this subject is reduced to a most distressing uncertainty.”
    Great confusion sometimes grows out of the form of the language used by the Judges in deciding a given case. Thus, in England, it has been laid down as a kind of maxim, that “ if the security be distinct and independent, it will then become a case of substitution for the lien.” It is argued, on the other side of the case at bar, that the kind -of security here to, is intended to be distinct and independent of the property upon which the lien is sought to be placed. But it is quite certain that this is not the true meaning of the expression. No case like the one at bar has ever been decided in England. In the first place, it will not be denied that the thing substituted must be a security, as contradistinguished from the mere naked personal liability of the vendee upon the contract of sale; but if it is, in itself, as a new security, distinct from, and independent of, the implied equitable lien, the general terms of the maxim are just as well reconciled with the fact, as. though it had been engrafted upon other property than the subject of sale. The case put'by Sir William Grant, to illustrate the maxim, does not militate against this view of the subject, for it was not only obitur dictum, but he would very naturally put the strongest case which suggested itself to his mind. Because he puts, by way of illustration merely, the case of other property, it does not follow that a new and higher security upon the same property, would not have the same effect; especially as in England the precise point here raised upon this mortgage, had never been adjudicated.
    All that counsel say about partnership, is certainly out of the case. It is asserted in the argumént of one of the counsel of last year, (for I have not seen their arguments of this year,) that the bill alleges a partnership to have existed between the vendees, Martin and Ewing, and that the allegation, not being denied by the answer, is to be taken as true. There was no such allegation to answer. The allegation is, “ that Ewing and Martin took the above described tract of land as tenants in commorí, and therefore the interest of said Ewing is chargable with the amount due to complainant as a partnership debt,” &c. This is something new! Two partners hold lands as tenants in common — ergo, they are partners 1!

      Henry Stanbery, (Attorney General,)
    submitted the following-argument for the Defendants:
    It seems to me this is a very clear case against the vendor’s lien, which is set up by the complainant.
    On the 27th April, 1844, the complainant conveyed the land to Ewing and others for the consideration of $ 1200, of which $600 was paid in hand, and for the other $600 he took the notes of the purchasers, payable six years'after date. If the transaction had stopped here, there would have been a lien — not because there was any agreement for such lien proved, but because it would have been presumed from the fact that the vendor took no security. He had nothing to rely upon, but a vendor’s lien, and therefore the law presumes he intended to rely upon that. About a year afterwards, a new fact occurs — ■ and a very important one in reference to this lien, and that was the taking a mortgage — a written and express lien on the land itself, to secure the unpaid purchase money.
    This transaction is thus stated in the bill :
    “Your orator, until the 4th day of April, A. D. 1845, relied solely and alone on his vendors lien, but as that was liable to be defeated by a voluntary, conveyance of said land by said Ewing & Martin, or either of them, to some person or persons not apprised of said lien, and that he might thereby lose his security, he took a mortgage upon the above described tract of land, and your orator did not intend to abandon, and he' insists that he did not abandon his vendors lien, upon the land in question, by taking said mortgage.”
    The mortgage was however taken as a security — as a surer security than the lien. In other words, he took the mortgage as a cumulative. security. He intended to have two liens on the same land, for the same debt — one implied, and the other express.
    Now, if I understand any thing about a vendor’s lien, it cannot co-exist with any other security. It is implied for the very reason that no other security has been' taken. It must appear that the vendor looks to it alone. It is a lien implied, not ex- . , . . , pressed, and just because none is expressed.
    The moment therefore that Boos took the mortgage, a written pledge of the land itself, all question about a lien implied, because no other security was taken, ceased to exist. After that he stood upon a lien expressed — not a lien implied. He intended by. that act to abandon, and did abandon, his implied lien. The law raises that intention out of the act, for the same reason that the law raised the intention to rely upon the implied lien, before resort was had to the mortgage.
    But it may be said that .the mere taking of the mortgage, without recording it, did not give a lien, and that Boos cannot be said to have abandoned his vendors lien until, by the record of his mortgage, he showed a purpose to substitute another lien in its stead.
    If there were any thing in that view, the easy answer to it is, that Boos did put his mortgage oh record. He never abandoned it, and remitted himself to his original vendor’s lien,,and never intended to abandon it.' • At this moment he stands as mortgagee. His only lien on this land is the lien of a mortgagee, not of a vendor; and this was his condition when this bill was filed.
   Birchard, C. J.

The complainant presents for our consideration a question of very considerable importance, if not one entirely new in this Court. As a mortgagee, he has no claim prior to the liens of the judgments, upon which this land has been sold. This results from the provisions of the act relating to the recording of mortgages, under the construction it has repeatedly received by this Court. See Stansell v. Roberts, 13 Ohio Rep. 148.

Aware of this difficulty, his learned counsel • have rested his case upon the broad, equitable doctrine, that the property of one man ought not to be taken from him in satisfaction of another’s debt, without just compensation. This case is therefore presented as that of á vendor, having parted with the legal ti-relyin§ uPon his lien upon the land sold for payment. It certainly a strong case of apparent equity.. The naked inquiry is, did he forfeit this equity by his ineffectual attempt to secure it, by way of a mortgage ? This is the great question to bp decided. It is thus stated by respondent’s counsel: “Does a mortgage upon the estate sold, taken by the vendor to secure the payment of the purchase money, extinguish his prior equitable lien ? ” They say this is a new question in Ohio; and so far as I know, it has never before been presented, or if so, never understood to have been presented before a full Court for decision. It has been intimated that it would have been better for the people of the Stale, had the Court, at an early day, held that no such lien as the secret lien of the vendor existed in Ohio. It is not for us to say which would have been the better policy. Our Courts, and our people, have for a long time recognized the existence of this species of equitable lien, contracts innumerable have beep made in reference to it, and to deny the existence of the rule which recognizes it, at this day, would produce mischief scarcely distinguishable, in consequences and principle, from a legislative act impairing the obligation of contracts. For my own part, I cannot well see how that provision of the constitution which prohibits the violation of contracts, is less obligatory upon Courts than upon legislators. Hence the great danger of unsettling by adjudication — which always has a retroactive operation, a long settled rule, which has been so incorporated into the judicial system, as to become a rule of property. Such is the character of the rule recognizing the' vendor’s lien. It must exist, as to past transactions. If the policy is vicious, the Legislature can change it, and provide for the future. That the lien exists in Ohio, under certain circumstances, is as well established as any other principle of law; Tiernan v. Beam, 2 Ohio Rep. 383. When it obtains, the vendee is treated as a trustee to the vendor, for.so much of the purchase money as remains unpaid; and the lien is binding upon, the vendee, his heirs, and others, acquiring title, with notice of the equity.

Prima facia, it exists without a special agreement. But what facts and circumstances are sufficient to defeat or overcome the apparent equity of the vendor, has often been question of doubt and difficulty; and the older decisions are not all, on some points, entirely reconcilable. There are also some nice shades of difference in the more modern decisions. However, it is now regarded as well settled, that the equity of the vendor cannot be set up against a bona fide purchaser, without notice. Also, that the taking of collateral security, either personal or by way of mortgage, is a waiver which extinguishes the lien ; and that a mortgage for a part of the purchase money, on the same property, is a waiver of the lien for the residue. Brown v. Gilman, 4 Wheat. 290; 1 Mason, 212; Cole v. Scott, 2 Wash. Rep. 141.

In Mackreth v. Symmons, 15 Vesey, 350, nearly all the English cases are reviewed by Lord Eldon. In 4 Wheat, and 1 Mason, the doctrine is examined at length by the Supreme Court of the United States. In Fish v. Howland, 1 Paige Ch. 20, both the English and American cases are examined by the Chancellor of New York. In the latter case the learned Chancellor expresses the opinion that the safer rule is to consider the lien as waived whenever any security is taken on the land, or otherwise, for the whole or any part of the purchase money, unless there is an express agreement that the equitable lien on the land shall be retained,” and in the same opinion he recognizes the principle first stated in Bondv. Kent, 2 Vernon, 281, and sanctioned by Chief Justice Marshall, in Brown v. Gilman, “ that where by agreement there is an express lien upon the estate for a part of the consideration of the conveyance, it excludes the idea of an implied lien for the residue. The principle deducible from Mackreth v. Symmons, is clearly “ that a mortgage taken upon the estate is not of itself a waiver of the lien, but that when so taken as to evince the intention that the estate was always relied on as a security for the purchase money, the lien subsists, and if necessary, may be pursued. With this the principle sanctioned by the Supreme Court of the United t jn 4 Wheat., may be reconciled. For a mortgage taken a part of the premises only, to secure the purchase money, necessarily raises a violent presumption that the parties intended the residue of the, estate should pass free and unincumbered. This reasoning admits of no implication that if necessary, the lien would not have been recognized in aid of the mortgage, so far as that embraced the vended property. The spirit of the rule being this “that the lien still subsisted when the obvious intention in taking the mortgage is to rely upon the estate sold solely as security.” We cannot conceive upon what principle an act done with such an object, can be held in equity a waiver or destruction of the lien. At law, it might merge the implied equity in a higher security. This seems to be the ground of decision in the case referred to in 2 Leigh’s Reports, decided by the Court of Appeals in Virginia.

There is no reason for this application of the doctrine of merger in equity. A merger does not extinguish a claim ; its equity still subsists and is united with the higher security ; and whenever it becomes necessary to resort to it for the purpose of justice between man and man, a majority of the Court think there is no violation of principle nor any direct conflict with authority, in permitting it to be done in a Court of equity.

The quotation from Paige, taken in the sense which we suppose it might have been intended, is not very objectionable, and would not be an authority for rejecting this lien, for here the avowed object in taking the mortgage was to preserve the lien upon the estate itself. If, however, as counsel contend, the Chancellor’s intention was to hold that the taking of a mortgage to secure the purchase money, no other security being relied on than the property sold, is either a merger, waiver or substitution, or other destruction of the lien, we think it is not right to follow him, and that Sir Wm. Grant, Lord Redesdale, and Lord Eldon, are safer guides.

But aside from all authority, what is there in the effort to secure an absolute binding lien upon the property itself, the whole property sold, which should in: conscience be held todestroy the vendor’s equity ? The act of taking a mortgage ceives and defrauds no one. It raises no inference and izes none, that the party did not rely upon the property as his security for the purchase money, and if- there is any foundation in any case for the equitable doctrine, that a man’s land shall not be taken from' him till he has received pay for it, by one who has knowledge of the facts, that foundation still remains, notwithstanding a mortgage be taken. As I have said before, the doctrine that the implied lien becomes merged in the higher security, has its force in those cases where it is applicable, in Courts of Common law. It is not a creature of equity. Indeed equity should restrain the principle, and prevent its application, where attempted to be used as an instrument of injustice. The legal doctrine of merger ought never on the equity side of this Court’to be permitted to work the destruction of a well established equity, unless the authorities require it. -There is no adjudicated case that I know of which requires it save the one in Leigh referred to above. I am aware that numerous obiter dicta may be found to sustain the notion that .an attempt to secure the vendor’s lien by a mortgage on the estate sold, is a discharge of the lien itself, yet I have never seen, nor do I ever expect to see a well, considered case expressly ■deciding that naked point. It seems impossible that such a decision can be based on solid grounds.

A mortgage taken as this was is not a substitution. That term implies a contract by which the parties agreed to take -other property, or other security, and discharge the lien upon the land, leaving the vended estate in -the hands of the purchaser unincumbered, subject to alienation. Nor is,it a waiver.

By waiver is meant an act done showing impliedly or expressly that the party agreed to rely on some security other than the estate for the purchase money, or without any security to rely upon the personal responsibility of the vendee alone.

Again, as this land has been sold, it is urged there can be no relief, because if the vendor’s lien exists at all it is a lien upon the land and not upon the purchase money, while the bill seeks the purchase money only;

In answer to this it is only necessary to look at the general equity of the parties and the state óf the facts. The land it is true has been levied upon and sold upon the execution, yet the sale is not confirmed nor the money paid into the hands of the judgment creditors. It is yet in the custody of the Court, where it is held for the use of the one having the better claim. The vendee,. creditors and purchaser are in Court. None of them have any desire that the sale should be set aside. They, together with complainant, wish it confirmed. Why should the Court refuse then to do what equity requires, and secure to complainant the benefit of his lien in this form, and to the creditors the surplus ? Certainly he came not too late to preserve his equitable rights, because he came before confirmation and in time to prevent it if necessary; in time also to prevent the bidder at sheriff sale from placing himself in the condition of purchaser without notice. Before a confirmation he might interfere, after that it would perhaps have been- too late.

This brings me to the consideration of another point which has been suggested. That is, that the complainant is too soon in Court. True, this objection is not very directly put forward, yet it is proper that it should be noticed. If I understand the meaning by which it is sustained, it is in this wise: complain-: ant’s claim is not due, and until due he has no right-in Court, and cannot know that any necessity for a resort to this fund will ever arise. Besides he has the personal security of Martin for the money due, so that in effect, this proceeding is for Martin’s benefit. ■

As to the first of these objections, for they should be considered as two, and disposed of separately, it is admitted the purchase money is not due, and that when due, it may be paid without a resort to this land, or the fund which it has'produced. But is that any reason why complainant should lie still and see his securities swept away, by being placed in the hands of one who may vest the title in a purchaser without notice? He either has or has not a lien upon the land. If he has such lien, it is clearly his right to protect it. No one can compel him to part with it against his will, nor should he be turned out Court when it is put in jeopardy,' and will be lost, [or the loss hazarded, irretrievably, without the aid of the Court.

Then as to the personal security of Martin, does the objection amount to any thing ? The land was sold to both, and both Martin and Ewing by the showing of the bill, are liable for the purchase money. This in no wise affected the vendor’s lien. It existed in no less force than it would if the sale had been made to a single person, and even if the retention and preservation of the lien by Boos, should in the end result to the benefit of Martin, that fact furnishes no reason why Boos shall be forced to part with it. It is not for this Court, but for the party himself, to elect when and under what circumstances he will yield up a security for the payment of his debt which he lawfully possesses.

Decree for Complainant.

N. B. A motion for rehearing was made and overruled.

Hitchcock, J.,

dissenting. As it seems to me, that by the decision of this case, novel principles are introduced into the law, relative to the lien.of a vendor of real estate upon the estate itself, for the purchase money, I deem it necessary and . proper to state the reasons which have induced me to dissent from the opinion expressed by a majority of the Court.

I am not about to controvert the principle, that in equity, a vendor under certain circumstances, has a lien upon land sold for the purchase money. This principle has been recognized by this Court, and so far as it has been thus recognized, I am willing to sustain it. But I am free to say, that if the question was now for the first time presented for consideration, I should be opposed to the recognition of fhe principle. I should be opposed to it, because I believe it to be inconsistent with the general policy of our laws. It is a secret lien, and as such, its enforcement should not be encouraged. Since 1831, such has been the policy of our laws, that even a mortgage can have no effect, until it is made public by being deposited with the Recorder of the county to be recorded. Such is the express legislation of the State, and'this Court in carrying out the intention of the legislature, have decided" that a mortgage, although executed according to the forms of law, has no effect either in law or equity, until it is recorded. . 13 Ohio R., 148; 14 Idem, 430. Although the policy of this legislation has been doubted by many of those who have made the law their study, and who have formed their opinions from reading English books and English decisions, still I have nb doubt that on the whole, it will be found to be beneficial to the State, and the people of the State. Cases may, and undoubtedly will arise, where we might wish the law was otherwise, but such cases cannot and ought not to be permitted to interfere with a policy which must conduce to the general good. It must and always will so happen,' that in the administration of the law, injustice will be done ,in particular cases. By the enforcement of a vendor’s lien, we defeat this general policy of the law. Or, if we do not entirely defeat it, we very materially depart from it. To show that I am not alone in ■ the opinion, that the recognition of this vendor’s lien is inconsistent with the policy of this State, and of other States in this Union, I refer to the case of Kauffelt v. Bower, 17 S. & R., 64, in which Gibson J. says, in delivering the opinion of the Court, “ the doctrine of lien has never been encouraged by the legislature; but has barely been tolerated in particular cases and under severe restrictions. Nor can I conceive how it ever came to be considered a principle of general equity anywhere, that a vendor who has divested himself of every particle of right that can pass by deed, shall nevertheless have an available interest in the land.” And Duncan, J. says, “ the doctrine of implied lien here is a novel one, lately imported, and opposed to the policy of our government, which is to leave this species of property altogether free to alienation, unincumbered with secret trusts, or concealed liens.”

There is no necessity for the ends of justice that this doctrine of implied lien, for it is but an implied lien, should sustained. If the vendor intends to rely upon the estate as security for the purchase money, he can retain the estate in his own hands, until the purchase money is paid. Or if he parts with the title, he can at the same time take back a mortgage and place the same upon record. In either case he secure, and does not place it in thp power of the vendee defraud him, or any subsequent purchaser. But if he parts with the title without such security, he leaves it in the power of the vendee to commit a fraud. Such person may sell to an innocent purchaser without notice, and receive the entire consideration money. But if, before the deed is executed, the second purchaser receives notice that full payment has not been made to the original vendor, he must lose both money and land. Nothing can protect such subsequent purchaser, unless before receiving notice, he has paid the entire purchase money, and also received his deed.

Another reason why, if the question were an 'original one, I should be unwilling to recognize or sustain this implied lien, grows out of the fact, that it is a subject with which nine tenths, if not ninety-nine hundredths of our people are unacquainted. They understand what is meant by a mortgage, and what is meant by a judgment lien, but of this vendor’s lien they know nothing. Chancellor Walworth in the case of Fish v. Howland et al., 1 Paige C. R. 20, well says, “ it is probable that not one person in a hundred, who conveys or purchases real estate, is aware of the existence of such a principle of equity.”

But, although if the question were an original one, I should be unwilling to recognize and inforce the principle in our jurisprudence, still in accordance with former decisions, I am willing to inforce it to the extent to which it has been heretofore recognized and acted upon. The extent to which this Court has heretofore gone is, to establish the principle that a vendor has a lien upon the land sold for his purchase money, provided he takes no other security for its payment than the personal security of the vendee. But if he takes any other security, let ^ rea^ 01 Pesona^ the security so taken must be relied upon — implied lien is extinguised. The same principle or rule prevails, as I understand, in all the other States of the Union where this implied lien is recognized. And it is a rule founded in reason, and easily understood. That is, it is founded in reason, provided there is reason in saying that a mán can have an interest in land, after having done all he could, by absolute conveyance, to divest himself of all interest.

It is now to be considered whether the complainant, in the case before the Court, is entitled to the relief sought upon principles heretofore recognized in this “ Court, or in any of the Courts of the United States or of England.

The simple facts of the case are these : The complainant, Boos, on the 27th of April, 1844, sold and conveyed to John D. Martin and Samuel Ewing, as tenants in common, for the consideration of twelve hundred dollars, a parcel of land in the neighborhood of Lancaster, Fairfield county. Of the consideration money one half was paid in hand, and a credit of six years was given for the other six hundred, which will fall due on the 27th of April, 1850. To secure this last payment a mortgage was executed on'the 4th of April, 1845, and recorded on the 21st of July of the same year. Certain of the defendants recovered judgments against Ewing, at the May term of the Court of Common Pleas of Fairfield county, 1845, executions upon which were issued and levied upon his share of, or interest in the aforesaid land. In May, 1847, Ewing’s interest in the land was sold, and the money brought into Court, whereupon this bill was filed by the complainant, seeking to appropriate to his use, so much of the money so made as will amount to one half the balance which will fall due to him, from Ewing and Martin, in April, 1850, on the ground that he as vendor has a lien upon the land, and that he is now entitled to the money, the land having been sold. It is stated in the bill that complainant when he conveyed, relied upon his lien as vendor, and that he did not intend to relinquish this lien by taking the mortgage. This allegation I suppose to be merely the s'uggestion of counsel, and no way material; but if material, it is denied in the answers, and there is no testimony to sustain it. There is no suggestion in the bill but that Ewing and Martin are abundantly able to pay the remaining six hundred dollars, nor, but that the land which remains unsold, and which is covered by the mortgage, is ample security.

Now here is a case in which it is manifest that the vendor did not trust to the personal security of the vendee, for the whole or any part of the purchase money, or if he originally trusted to such personal security, he ceased to trust to it when he took the mortgage on the fourth of April, 1845. From that time he relied upon the collateral security furnished by the mortgage, and his implied lien as vendor was extinguished. At least such has been the law as heretofore understood in this State, and in the other States of the Union. And I venture to say, that a case cannot be found in the English books to the contrary. The simple question presented in this aspect of the case is this, where the vendor takes a mortgage upon the premises sold, to secure the purchase money, is the equitable implied lien extinguished, or has the vendor a double lien, that is to say, a lien as vendor, and a lien by the mortgage ? A majority of the Court say that the implied lien is not extinguished by the express lien of the mortgage, but that the two liens continue to exist together. To my mind it is clear, that the implied lien is merged in the express lien, and that the two are inconsistent the one with the other, and cannot exist together, and such I understand to be the uniform current of authorities.

Chancellor Kent, in speaking of this lien of a vendor, says, “■in several cases it is held, that taking a bond from the vendee for the purchase money, or the unpaid part of it, affected the vendor’s equity, as being evidence it was waived, but the weight of authority, and' the better opinion is, that taking a bond, note or covenant, from the vendee for the payment of the money, is not of itself an act of waiver of the lien, for such instruments, are only the ordinary evidence of the debt. But taking a note, bill or bond, with distinct security, or taking distinct security exclusively by itself, either in the shape of real or personal property from the vendee, or taking the responsibility of a third person, is evidence that the seller did not repose upon the lien, but upon independent security, and it discharges the lien,” 4 Kent’s Com. 153, 2d Ed. Such is the principle which has heretofore been recognized by this Court, and it has been so uniformly recognized by the American Courts, that it may well be denominated the American principle, and if it does in any respect vary from the English principle, I should be disposed to abide by the opinion of our own Jurist, and to follow the decisions of our own Courts.

From an examination of the text of Story’s Equity, it might be supposed that the Commentator differed in opinion from Chancellor Kent, but I apprehend that he should not be so understood. For in the case of Gilman v. Brown, 1 Mason’s Rep. 212, he says “ there is a strong if not decisive current of authority, to lead us to the conclusion, that merely taking the bond, note or covenant of the vendee for the purchase money will not repel the lien ; for it may be taken to countervail the receipt of the payment usually inserted in the conveyance. But where a distinct and independent security is taken, either of other property, or of the responsibility of a third person, it certainly admits of a very different conclusion. There the rule may properly apply, that expressum facit, cessare taciturn; and where the party has carved out his own security, the law will not create another in aid of it.” And again, “ in a careful examination of all the authorities, I do not find a single case in which it has been held, if the vendor take a personal, collateral security, binding others as well as the vendee, as for instance a bond or a note with a surety or indorser, or a collateral security by way of pledge or mortgage, that under such circumstances a lien exists upon the land itself.”

In the case of Cole v. Scott, 2 Washington’s Rep. 141, the President of the Court of Appeals of Virginia, says, the doctrine that the vendor of land not taking a security, nor making a conveyance, retains a lien upon the property, is so well set-tied as to be received as a maxim. Even if he have made a conveyance, yet he may pursue the land in the possession the vendee, or of a purchaser, with notice. But if he hath taken a security, or the vendee hath sold to a third person without notice, the lien is lost.” A nd such was the decision of the Court.

In the case of Brown v. Gilman, et. al. 4th Wheaton’s R. 455, the Supreme Court of the United States held that “the equitable lien'of the vendor of land, for unpaid purchase money, is waived by any act of the parties showing that the lien is not intended to be retained, as by taking separate securities for the purchase money.”

This Court in the case of Mayham v. Coombs, et. al., 14 Ohio R. 428, held that the vendor’s lien is lost, when the vendor takes real or personal security for the payment of the purchase money. In that case the real security was a mortgage on the premises sold.

Such are some of the American cases, and they are all decided upon the principle that when any other security is taken for' the payment of the purchase money than the personal security of the vendee, the vendor’s lien is extinguished. Nor do I understand so far as I have been able to examine, that a different principle is settled by the Courts in England. True, in the case of Mackreth v. Symmons, 15 Vesey, 329, 342, Lord Eldon seems to consider, that whether taking a distinct security will have the effect to extinguish the implied lien, depends altogether upon the circumstances of each case, and that no rule can be laid down universally ; and that therefore it is impossible for any purchaser to know, without the judgment of a Court, in what cases a lien would, and in what cases it would not, exist. His language is, “ if on the other hand, a rule has prevailed, as it seems to be, that it is to depend, not upon the circumstance of taking a security, but upon the nature of the security, as amounting to evidence, as it is sometimes called, or to declaration plain, to manifest intention, the expression used upon other occasions, of a purpose to rely, not any longer upon the but upon the personal credit of the individual, it is obvithat a vendor, by taking a security, unless by evidence, manifest intention, or declaration plain, he shows his purpose, cannot know the situation in which he stands, without the judgment of a Court, how far that security does contain the evidence, manifest intention, or declaration plain, upon that point.” If there be so much uncertainty in England upon this subject, it is matter of regret, and it is to be hoped that that which has heretofore been considered certain, in this country, will not be rendered uncertain by the interpolation of a new principle in the decision of this case. Well might the Chancellor express regret, as he deos, that this implied lien had ever been enforced in the English Courts.

It is believed, however, notwithstanding what is said by Lord Elden, as before quoted, that it may even in England, in some cases at least, be known when the vendor’s lien is extinguished, without resort to a Court. In 2 Sugden 60, it is said, “ If the vendor take a distinct and independent security for the purchase money, his lien on the estate is gone, such a security is evidence that he did not trust to the estate as a pledge for his money.” And again upon the same page, “ and the same rule must prevail, it has been said, where a vendor accepts a mortgage of another estate, for the purchase money, the obvious intention of burthening one estate being, that the other shall remain free and unincumbered; so even where the vendor takes a mortgage of the estate sold for only part of the purchase money; because, by taking a mortgage for part, he clearly evinces his election, that the estate should be charged with that part only.” And again on page 61. “A bond and a mortgage of part of the estate, have been held to exclude the lien over the rest of the estate. But it seems that taking a covenant, bond or note, for the purchase money, will not affect the vendor’s lien.” And in one case it was held, where the receipt of the purchase money was indorsed on the deed, and a bond given for its payment, that the vendor’s lien was extinguished. There is but one case of this description, so far as I know, in the English books.

I am not aware, however, that upon the points so far red to, there is any difference of opinion between the majority of the Court and myself. For I understand it to be admitted, that if a vendor takes independent personal security, if he take real security upon a different estate, if he take as security a part of the estate sold, the equitable lien is extinguished. But if he take a mortgage upon the entire estate sold, then it is said the equitable lien continues, because he thereby shows that it is his intention to rely upon the estate for the purchase money. True, he manifests his intention to rely upon the estate for the purchase money; but at the same time he manifests his intention, not to rely upon his secret implied lien. On the contrary he takes an express lien — one that is open and notorious — and to me it would seem strange, if this should fail him, that he can ever resort to the implied lien, which I must think was merged in that which is express. But upon this point we are not without authority.

The case of Fish v. Howland et al, 1 Paige C. R. 20, is a case in point. The facts of the case, so far as they bear upon the one now before this Court, are as follows: On the 10thof February, 1813, one Samuel Howland, then about 86 years of age, conveyed his farm to the defendant, David Howland, his grandson, with whom he expected to reside the remainder of his life; and took back a life lease, at a nominal rent. In 1816, David Howland conveyed to his brother Pontus, one half of said farm; and in 1825, Pontus conveyed his interest to one of the defendants to the bill. The Chancellor refuses to sustain the prayer of the bill, and in pronouncing his opinion against the lien, went into an elaborate review of the authorities, both English and American, after which he remarks as follows:

“ It appears, from this review of the English cases, that the question as to what shall be considered a waiver of the implied lien upon the land conveyed, for the unpaid purchase money, is still unsettled in that country. But I am gratified to find that in the American cases, so far as I have been able to discover, wilh one excepb°n, there is a uniform current of authority in of what I consider, at this day, as the only correct rule on the subject/ — a rule which will enable vendors and purchasers to understand their respective rights, without the necessity of resorting to a Court of chancery, to give a construction to the varying circumstances of each particular case.”

Again, the Chancellor says:

“ Lord Eldon seems to think that the question of lien or no lien, depends altogether upon the intention of the parties, and that each case must be determined upon that principle, and upon its own peculiar circumstances. If the actual intention of the parties was to govern the decisions of the Court, the lien would seldom be maintained, for it is propable that not one person in a'hundred, who conveys or purchases real estate, is aware of the existence of such a principle of equity. A much safer rule, I apprehend, is to sustain the implied lien, whenever the vendor has taken the mere personal security of the purchaser only; and to consider any bond, note, or covenant given by the vendee alone, as intended only to countervail the receipt of the purchase money contained in the deed, or to show the time and manner in which the payment is to be made, unless there is an express agreement between the parties to waive the equitable lien; and on'the other hand, to consider the lien as waived, when any security is taken on the land or otherwise, for the whole or any part of the purchase money, unless there is an express agreement that the equitable lien shall be retained. This constitutes a safe rule, easily understood, and which I consider established by a weight of authority in this country which is not easily shaken. And, I believe, no English case previous to the revolution, will be found in opposition to these principles.” This ease of Farnell v. Hulis, is the one in which it was ruled by the English Chancellor that where the consideration was indorsed as received, and a bond.given to secure the payment, the vendor’s lien was extinguished.

“Applying this rule,” says the Chancellor, “ to the case now under consideration, the lien which is claimed in this case upon the land conveyed by Samuel Howland, cannot be sustained. He did not rely upon any implied lien upon the farm for purpose, but carved out his qwn-security, for his support, by direct incumbrance upon the estate conveyed.”

The case of Little and Telford v. Brown, 2 Leigh’s Rep. 353, which was decided in the Court of appeals of Virginia, arose upon the following state of facts: by deed of bargain and sale; dated March, 1819, Brown sold and conveyed to Wilsons, four lots of land, and the Wilsons executed a deed of trust, on the 30th of the same month, conveying the same 'lots; in trust, to secure the payment of the purchase money to Brown, in instalments, stipulating that the said Wilsons should take the rents and profits, arising from the same to their order; and in another deed of trust, dated 19th October, 1819, the Wilsons, in order to secure a debt to Little and Telford, conveyed the same lots, and the'rents and profits, to a trustee, upon trust that he should sell the same to satisfy the debt. The controversy, in a great measure,’ was as to. the rents and profits.

The Court say “ The deed of trust to secure the debt to Brown expressly stipulated that the Wilsons should enjoy the rents and profits, until-the 25th February, 182~, and Brown could not have acquired the possession, nor consequently received the rents and profits, until that day, either by an action at law or by a bill in equity ; and the deed of trust to secure the debt to Little and Telford expressly conveyed the rents and profits arising from the 9th of October, 1821. That is, the Wilsons conveyed by the last deed, the very right which they had reserved by the first. The circumstance that the first deed of trust was for the purchase money of the property, has no effect upon the question as to the rents: For, 1. The implied lien for the purchase money, which would have existed if the deed of trust had not been given, was utterly destroyed by the execution of that deed, and whatever effect that implied lien • might have had upon the question, it is superseded by the deed.”

I have been the more particular in quoting from the last two ’cases, because they were decided by intelligent and respectable American Courts, and because in each one the question was presented, whether a security taken upon the land sold, operated to extinguish the vendor’s lien —the principal question presented in the case now under consideration, and in each case it was decided, that under such circumstances the lien was extinguished. And here I will remark, that no case has been referred to in the argument, nor have I been able to find any reported case, in which the contrary dictrine is established. Still these authorities are disregarded and overruled by a majority of the Court in the decision of the case now under consideration, and the rule which Chancellor Walworth thought was too well established by American authority to be easily shaken, is overthrown. And why is it so ? Upon what is the decision of this particular point based? Certainly not upon decided cases. So far as precedent is concerned, the only authority hitherto adduced is a dictum of Lord Eldon in the case of Makreth v. Symmons, (15th Ves. 329,) already referred to, that it did not appear to him a violent conclusion as between vendor and vendee, that notwithstanding a mortgage, the lien should subsist, and especially where the mortgage was upon the estate sold, for in such case the mortgage itself would show that the vendor intended to rely upon the estate as his security. Upon an examination of this whole case it will be seen that no question was in fact raised, whether by taking a mortgage upon the estate sold, the lien was extinguished, nor was any such question in fact decided.

Now I feel all due respect for the Courts both of common law and Chancery of England, but I cannot consent that the mere dictum of an English Chancellor shall be held of higher authority than the solemn decisions of our own American Courts.

Although the question of the most practical importance in this case is, whether by taking security upon the estate sold a vendor relinquishes his equitable lien, and which question is answered by a majority of the Court in the negative, still there are other matters involved which to my mind furnish insuperable objections to a decree in favor of the complainant. I pose no one will doubt that had the mortgage of the fourth of April, 1845, been recorded before May of the same year, we should never have heard of a vendor’s lien in the complainant. It was not so recorded, and consequently the defendants, or a number of them, acquired liens upon the land by judgments, prior in point of time to the recording of the mortgage, and therefore «uperior or preferable to the lien of the mortgage. And herein consists the sole reason for this proceeding. The complainant was guilty of laches and neglect in procuring his mortgage to be recorded, and consequently the judgment liens attached. These liens attached not because the mortgage was imperfect, but in consequence of the sheer neglect of' the mortgagee. But complainant having thus in part lost the benefit of his mortgage, seeks to avail himself of his lien as vendor, for the purpose of overreaching the liens of judgment creditors. Now it does seem to me, in any aspect in which I can see this case, that the only reason which the complainant has to come into this Court, grows out of his own negligence and laches, and although a Court of equity might relieve an individual against the negligence and laches of another, I have never known such Court to relieve a man from difficulties which he may have got into in consequence of his own laches or negligence.

Again, from any thing which appears in the bill, both Ewing and Martin are abundantly able to pay the balance of purchase money which will fall due in 1850. There is no intimation -that either of them are insolvent, or are likely to become insolvent, nor is it pretended but that the money due is well secured by the mortgage. To me it seems to be a question worthy of consideration, whether under such circumstances a vendor can resort to his lien upon the land. Whether he should not, in the first place, exhaust the personal property of the vendee before he resorts to this lien. Upon this point I do not feel confident as to the practice. In the case of Carson v. Green et al., 1 Johns. C. R. 303, which was a bill to enforce a vendor’s lien, I find it stated in the bill that a suit had been prosecuted at law, and the personal property exhausted, and in deciding the case, the Chancellor says, “ the failure of the personal estate, is sufficiently shown in the first instance, and there is nothing to gainsay it,” and then proceeds to decree the sale of the real estate pursuant to the prayer of the bill. True, it is not settled in the case cited, that the lien of the vendor cannot be resorted to until other sources, from which to compel payment, fail. Still such an inference may fairly be drawn from the case. It is urged, however, by the counsel for complainant, that the lien of a vendor is but a mortgage in equity, and as in the case of a mortgage in fact, the mortgagor may, in the first instance, resort to a Court of equity to compel the sale of the mortgaged premises to make the money secured, so the vendor may resort to a Court of equity to enforce his equitable mortgage. It may be so, and as at present advised I shall not undertake to controvert the position. But admitting it to be so, and considering the case in that light, it is clear to my mind that the present bill 'ought not to be sustained, nor the relief prayed for, granted.

The land in controversy was sold by the complainant, Boos, to Ewing and Martin, as tenants in common. One half the purchase money was paid by the purchasers jointly, and their joint notes given for the balance, with no other security than the personal security of the vendees. Under these circumstances the vendor had an implied lien upon the land for the purchase money. But this was not a lien upon one half the land, for one half the purchase money still due, but a lien upon the whole land for the entire purchase money. Subsequently in April, 1845, the purchasers executed to the vendor a mortgage upon the same premises to secure the payment of the remaining purchase money. To this mortgage there were two parties, the mortgagors and the mortgagee. The instrument itself was a joint instrument of the mortgagors, and it covered the entire property originally purchased. This instrument the mortgagee received, and by so doing, in my opinion, waived or extinguished his equitable lien or mortgage. My brethren, however, hold otherwise. If, however, it was not extinguished, it was not changed but still remained an equitable lien or mortgage upon the entire land, to secure a joint debt due from the two purchasers to the vendor. The note given for the purchase money was a joint note, the mortgage executed by the purchasers to secure the payment of the note was a joint mortgage, and if this equitable lien is to be treated as an equitable mortgage, that too must be considered as being joint. Such being the situation the vendor may sue upon his note, not however until it falls due; he may proceed upon his mortgage, or he may enforce his equitable lien.

Now suppose he should elect to sue upon his note, would he commence a suit against one of the makers for one half of the note, and another suit against the other for the other half? Or could he commence a suit against both the makers for one half the note, leaving the other half unpaid ? No one will hesitate to say, that such a course of proceeding could not be sustained. The contract being an entire one, could not thus be divided. And if two suits could be sustained in this manner upon the same note, double that number might be.

Suppose the vendor should elect to proceed upon his mortgage, could he file his bill against one of the mortgagors to enforce the payment of one half the money due, and a like bill against the other mortgagor to enforce payment of the other half? Or could he file his bill against the two mortgagors, to compel the payment of one half only of the purchase money, by the sale of one half the land, the balance of the purchase money remaining still due ? It seems to me every person must answer these questions in the negative. And yet this is precisely the case before the Court, except that the object is to enforce the equitable, not the legal mortgage. The effort made is not to enforce the vendor’s lien or equitable mortgage, to secure the payment of the entire debt, but of one half the debt. It is not to enforce payment by the sale of the entire land, but to 'enforce the payment of one half the debt, by the sale of one -half the land. It is no answer to this difficulty to say that the object in view is not to enforce the lien upon the land, but upon the money which is the avails of the land. The express object of the bill is to enforce the vendor’s lien, and if that cannot be enforced upon the land, surely it cannot be upon the money As the purchase money is not due, the vendor comes into this Court as a mortgagee, claiming distribution of the avails of land which has been sold at the suit of other persons, but to which he would have been entitled in preference to those persons, had Iiis. mortgage matured. In such case, he may if he elect, come into Court and claim the money, thereby affirming the sale, or he may disregard the sale, and when his mortgage matures, proceed against the land. But if he comes in and claims a distribution, he must make such a case as would entitle him to a decree for the sale of the land, had his mortgage matured. Surely no such case is made here. This is a bill filed by an equitable mortgagee, having a debt due from the joint debtors, secured by the mortgage, to make one half the debt from one half the mortgaged premises, leaving the balance of the debt still due by both the joint debtors, and the other half of the land still bound for the balance of the debt. The avowed object is to collect that portion of the debt which is supposed to be due from Ewing, because his undivided half of the land has been sold upon execution. And for- whose benefit ? Certainly not for the benefit of Boos, for he is perfectly secured for his purchase money. He has the personal security of both Ewing and Martin, and there is no pretence but that they are abundantly able to pay, and in addition to this, he has a mortgage which confessedly binds one half the land sold to pay one half the purchase money. If any one is benefitted by the decree in this case, it is not Boos the vendor, but Martin the joint purchaser with Ewing, and his co-obligor. Such is the effect of the decree, and yet no one principle connected with the subject of such equitable liens, is better settled than this, that no one can derive any advantage from the vendor’s lien, except the vendor himself, and his privies in estate.

If I am wrong in supposing that the proceedings in this case are not in harmony with ordinary legal, or equitable proceedings ; if it be sound doctrine that a payee of a promissory note, made by two individuals, may treat that note as if one half was due from one of those individuals, and the other half from the other, and may bring separate suits accordingly; if a mortgage executed to secure the payment of such a note, may in like manner be enforced, then there is another difficulty in the way. In a note so executed, admitting each one of the makers to be a principal for one half the amount of the note, and no more, yet he must be held to stand in the light of a security for the other half. This, I presume, will not be contradicted. Apply this principle to the case now under consideration, and what is the consequence ? The complainant, Boos, sold the land to Ewing and Martin, received one half the purchase money, and the joint note of the purchasers for the residue. If this note is divisible, and it seems to me that it must be so considered, in order to sustain the present proceedings, then each one of the makers is principal for his half of the note, and security for his co-maker for the other half. Ewing is principal debtor for three hundred dollars, and security for Martin for the other three hundred ; and so, Martin is principal debtor for three hundred dollars, and security for Ewing for the other three hundred. It seems to me that we necessarily get into this dilemma, by attempting to afford the relief prayed for; and if so, it follows that Boos took collateral personal security for the purchase money of the land sold, and in such case it is admitted on all hands, that the equitable lien is extinguished.

I have now stated some of the reasons which induce me to dissent from the opinion of a majority of the Court, in this case. I object to that decision, because I believe it to be inconsistent with the law upon the subject of vendor’s liens, as heretofore construed and acted upon in this and every other State in the Union, where the existence of this lien is recognized; because by it, decisions made in the Court of Chancery jSfew York, and the Court of appeals in Virginia, and which are directly in point, are overruled; because, by it, an American rule, which is said by Chancellor Walworth to be too well settled by authority to be easily shaken, is overthrown ; because its effect will be, as I apprehend, to introduce into this branch the law, the same uncertainty which is said to prevail in England; because it is inconsistent with the general policy of our laws, as to real estate; because no better reason can be alleged for the interference of this Court, than the negligence of the party seeking relief; because the relief sought, cannot be granted without interfering with the harmony of legal and equitable proceeding, in the enforcement of contracts; and because the relief, when granted, does not result to the benefit of Boos, the vendor of the land, but to the benefit of Martin, and of the purchasers.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    The Fund Commissioners of Muskingum County vs. Samuel Glass and others.
    In certifying the acknowledgement of a deed, nothing further is necessary than that the officer taking the acknowledgment “ shall subscribe his name” to the certificate. The statutory provision on this subject extends to .Notaries, as well as to other officers.
    This is a Bill in Chancery, reserved in Muskingum County.
    The Bill sets forth that on the 18th of June, 1838, the defendant, Samuel Glass, borrowed of the Fund Commissioners of Muskingum county, two hundred dollars, and on the same day, together with his wife, executed a mortgage deed conveying the premises in the deed and bill described, to the complainants, to secure the payment of said débt. The prayer of the bill is that the mortgaged premises may be sold, &c. .
    To this bill Wells Hawes, one of the defendants, put in answer, in which he admits the indebtedness of Glass as stated in the bill, and the execution of the mortgage deed as security, but claims that this deed is of no validity, because the same was acknowledged before a Notary Public, and the Notary did not verify the certificate of acknowledgment under his notarial seal. He claims an interest in the mortgaged premises, by a deed executed subsequent to the date of the mortgage.
    The other defendants have not answered.
    At the September Term of the Court of Common Pleas, 1838 the bill was dismissed, and from this decree of dismissal the complainants took an appeal to this Court.

      Goddard fy Eastman, for Complainants.
    C. C. Sf T. Convers, for Defendants.
   Hitchcock, J.

The only question raised in this case is whether, where a deed is acknowledged before a Notary Public, the acknowledgment is void, unless the same is certified under the official seal of the officer taking the acknowledgment. That such acknowledgment is void, is earnestly insisted upon by the counsel for the defendant, and they base their argument upon the act “ for the appointment of Notaries Public,” which took effect May 1, 1816. (tíwan’s Stat. 601.) The third section of this act provides that “ each Notary shall provide a notarial seal, with which he shall authenticate his official acts,” &c., “ which seal, together with the registers and official documents, shall not be liable to be seized on by execution.” The duties to be performed by the Notary are not by the statute prescribed in express terms, but at the close of the second section it is prescribed that “ due faith and credit shall be given to his protestations, attestations, and other instruments of publication.” Taking the whole act together, it is apparent that the duty to be performed by this officer was like the'duties to be Perf°rm®d by other officers of the same name, in other parts the commercial world. He was to keep a register of his proceedings ; faith and credit were to be given to his protestations, attestations, and other instruments of publication, and all those were to be “ authenticated by his official seal.” There is nothing in this act about the acknowledgment of deeds. This was no part of the duties to be by the Notary performed. By an amendatory act, which took effect February 29, 1836, it is enacted “ that every Notary Public may hereafter demand and receive for every attestation, protestation, or other instrument of publication, under the seal of his office, ’the sum of fifty cents, and no more; and for recording in a book to be kept for that purpose, each attestation, protestation, or other instrument of publication, fifty cents, and not more. This amendatory act, as well as the one to which it is amendatory, shows sufficiently for what purpose the seal was to be used.

We have been referred to two cases in Indiana, one reported 4th Blackford, 185, and the other 6th Blackford, 356, which are supposed to have a bearing upon this case, and to be conclusive to show that this acknowledgment is defective. Those cases were decided under the statute of Indiana, and counsel suppose the statute of that State is like our own, but from the cases referred to, and especially the one in 4th Blackford, I should take them to be materially different. By our statute, heretofore referred to, all the certificates of the Notary, as to the acts therein contemplated to be done, must be under his official seal. But as before said, taking the acknowledgment of a deed is not one of those acts. By that law he had no power to perform any such act.

This power however was conferred upon a Notary Public by the “ act to provide for the proof, acknowledgment, and recording of deeds and other instruments of writing,” which took effect June 1, 1831. (Swan’s Stat. 265.) The first section of this act, after specifying the manner in which a deed shall be executed, by signing, sealing, &c., provides that “such signing and sealing shall be acknowledged by such grantor or grantors, maker or makers, before a Judge of the Supreme Court, or of the Court of Common Pleas, a Justice of the Peace, Notary Public, Mayor, or other presiding officer of ah incorporated town or city; who shall certify such acknowledgment oh the same sheet on which such deed, mortgage or other instrument of writing may be printed or written, and shall subscribe his name to said certificate.” Under this law the acknowledgment of this deed was taken, and to the certificate of acknowledgment the officer taking it did “subscribe his name.” This was all which the law under which he was acting required him to do. I cannot see why we should add any thing to this requisition. If the General Assembly of 1816 had power and saw fit'to declare that a Notary Public should verify certain certificates, which he should make, or all he should make, by his official seal, the General Assembly of 1831 had equal power to declare that in a given case, he might verify a certificate by the mere signature of his name. This has been done in the case of certifying to the acknowledgment of a deed.

The acknowledgment in this case having been certified in conformity to the law under which it was taken, we hold it to be sufficient, and there being no other defence in the case, the complainants may take a decree.'