the statute of frauds. It is really difficult to determine, from the language of the books, upon what principle the courts of equity have gone in establishing this lien. It is sometimes spoken of as a natural equity, recognized by the laws of all civilized states, which courts of equity, acting upon the conscience of the parties, will enforce; and aside from the idea of trust, that court has arbitrarily declared it a rule or doctrine in chancery. To reconcile the doctrine to general principles, and particularly to avoid the intervention of the statute of frauds, the invocation of a trust by implication is made. Hence it is called a lien in the nature of a trust. It is also assimilated to an equitable mortgage, and is frequently so called. It is also spoken of as an implied contract, growing out of the transaction of sale, by which it is agreed that the vendor shall have this security for his purchase money. The latter idea is repudiated by Mr. Story. He says: "Although in some cases it might be perfectly reasonable to presume such a consent or agreement, the lien is not, strictly speaking, attributable to it, but stands independently of any such supposed agreement:" Story's Eq. Jur., sec. 1220.

It has been traced, as before stated, to the Roman law. That law placed it upon the ground of a natural equity. Tamen recti dicitur et jure gentium id est, jure naturali, id effeci: Just., lib. 2, tit. 1, sec. 49. "Therefore," says Mr. Story, "when courts of equity established this lien as a matter of doctrine, it had the effect of a contract, and the lien was held to prevail, although perhaps no actual contract had taken place:" Story's Eq. Jur., sec. 1229. Thus we see that this great commentator could call it nothing more than a matter of doctrine established by the courts of equity, upon the basis of natural justice, which, in the absence of a contract, had the effect of a contract. By matter of doctrine, I suppose, must be meant an arbitrary rule or law of the courts of chancery, to which is arbitrarily given by that court the force and effect of a contract, because it is an arbitrary rule, it is but rarely attempted to make it harmonize with general principles. It stands the legislation of the courts of chancery. As such, we have received it by our adopting statute. Being the creature of that court, it is to be enforced according to the course of equity decisions. And if (which is not the case) the courts of our Union had extended it to the assignee of the notes for the purchase money, that not having been done by the British courts, we would be governed by the limitations put upon it in England. This doctrine or rule has reference to

the parties primarily, and contemplates the relation of vendor and vendee. So far as the vendor is concerned, it is personal to him. So far as the vendee is concerned, it has been extended to his heirs, and those claiming under him, with notice of the equity with which he stands charged.

We are to inquire whether this right, or priority, or lien, or whatever it may be called, as recognized in the hands of the vendor, is by him assignable. If it existed by contract, the question would be different. We have seen that it does not. It is called an incident to the contract. But it is not an incident which springs out of the contract-it is an equity which seems to exist independent of it. Indeed, the contrary inference is deducible from the contract. The deed is executed-the vendor divests himself voluntarily of the title to the land-he takes the notes of the purchaser, and seems to rely upon the security which they afford for his purchase money. The solemnity and finality of the transaction thus closed, seem to negative the idea of anything reserved-of any incident. At law, the thing is concluded-no such incident can be there made to spring out of it. Equity, however, comes in for the purpose of enforcing a natural equity, and arbitrarily makes the lien an incident to the contract. In this view of it, it can not be assignable. For it can in no proper sense be said to exist, until it is declared to exist by a decree in chancery. I know that it is held to exist, prima facie, and the burden of showing a waiver lies upon the vendee. Yet, it is now well settled that what is or is not a waiver, is a matter to be determined by the courts upon the facts exhibited: Mackreth v. Symmons, 15 Ves. 340. Who, then, shall say, in any case, that the lien exists as a matter of positive right until it is decreed to exist? and if it be dependent for its entity on a judgment of a court, how can it be negotiable? That it does not exist, until a decree establishes it, see Gilman v. Brown et al., 1 Mason, 221. In that case, Judge Story says, speaking of the vendor's lien, "it is, in short, a right which has no existence until it is established by a decree of the court in the particular case." If this be a correct view of it, and it be still held assignable, then it must be negotiable as a possible, but not an existing lien.

I need not stop to demonstrate how adverse such a thing is to the well-established rules of the law merchant, nor what confusion it would introduce into all the business circles of life into which it might enter. According to this view of it, how wise is not that limitation which treats the lien as a privilege or pri

ority personal to the vendor! The manner in which it is made an incident to the contract of sale, to wit, by the judgment of a court, suggests an obvious distinction between the vendor's lien and a mortgage. It is argued that the transfer of a note, secured by mortgage, carries with it the mortgage security, and why, then, should not the transfer of the note in this case carry with it the lien? The proposition is true, but the inference is not legitimate; because of the different nature of the lien. We have seen how that arises. The security of a note, for the payment of money by mortgage, arises by the act of the parties. It is agreed between them that it shall be so secured. The mortgage is part and parcel of the contract. It is evidenced usually in writing; it is registered; the world has notice of its existence, and that it exists for the purpose of securing the particular debt. Very naturally, therefore, and very reasonably, when the note is assigned, the security goes with it. All parts of the contract go together. The mortgage is given with a view to its assignability; it is part of the contract that it shall be assignable. Not so with the vendor's lien; for about that, the parties make no stipulation whatever. Essentially, therefore, are they different. The vendor's lien differs from an equitable mortgage. Take the case of the deposit of title deeds. There the security arises by implied contract. The deposit of the title deeds is made for the purpose of security. The lien arises by the consent or agreement of the parties: Russel v. Russel, 1 Bro. C. C. 269, Bett's note 1; Ex parte Coming, 9 Ves. 116, 117; Birch v. Ellames, 2 Anst. 427; Plumb v. Fluitt, Id. 432; Ex parte Mountfort, 14 Ves. 605; Ex parte Langston, 17 Id. 227; Pain v. Smith, 2 Myl. & K. 417; Keys v. Williams, 3 You. & Coll. 55; Mandeville v. Welch, 5 Wheat. 277.

I can not believe, upon principle, that this lien is assignable. But if it were, it must be assigned specially. It does not follow the simple transfer of the notes. It is not an incident to them. It is clear to my mind that the lien and the notes are separate and distinct. If I might so speak, there is no privity between them; there is no dependence of the one upon the other. The notes are the evidence of the debt due or to be paid for the land. They are proof that the purchaser binds his whole estate to their amount. They seem to affect the lien only so far as they are evidence that the purchase money is unpaid. When that is paid, the lien is extinguished, no matter how it was agreed to be paid. The distinctions already drawn demonstrate the want of connection between the lien and the notes. If the

lien attached to the notes, why not assert it upon them in a court of law? But that can not be done; for all the authorities concur in this, that courts of equity alone have jurisdiction of the lien. The purchaser of the notes, as in this case, takes them upon the credit which they warrant upon their face. He is not disappointed in not realizing the lien. It is true that if a note secured by mortgage is transferred, the transferee gets with it the mortgage, although ignorant of its existence at the time of the transfer. In fact the security exists; it belongs to the note. In the case of the lien, it does not necessarily exist, and if it does it does not belong to the note. If the lien passes to the first transferee with the notes, it must follow them into whosesoever hands they may fall. They may circulate for years. Shall they draw after them, in an almost interminable course, a secret, invisible, undefined security? If they do, it must be greatly to the injury of unsuspecting purchasers and creditors of the vendee.

If, indeed, the

It is settled, that if the vendor take the security of a third person, he waives the lien for the purchase money. If he indorses the note to an assignee, if the lien goes with it at all, it will go with it in that event, and the holder has the security of the note, the indorsement and the lien. He is therefore entitled to the lien, under circumstances in which the vendor himself would not to be entitled to it. This would be absurd. vendor transfers the note with his indorsement, and is made liable thereon, and the lien existed originally in his favor, I have little doubt but that he could then assert it upon the vendee. The equity in that case would be as strong in his favor as it was primarily: Ex parte Loaring, 2 Rose's Cas. 79. In Gilman v. Brown, 1 Mason, 191, Judge Story passes condemnation upon this doctrine. The remark he makes is an obiter, but the opinions of such a man, however expressed, are entitled to confidence. Remarking upon the probability of the lien being waived in that case, he says: "The securities themselves were, from their negotiable nature, capable of being turned into cash, and in their transfer from hand to hand, they could never have been supposed to draw after them, in favor of the holder, a lien on the land for payment."

In support of the position, that the vendor alone is entitled to this lien, as I understand the authority, it has been decided that if a third person covenant to pay a part of the purchase money to a person other than the vendor, such other person has no lien upon the land for such part of the purchase money un

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less it be agreed that he shall have the lien: Clarke v. Royle, 3 Sim. 499; Foster v. Blackstone, 1 Myl. & K. 297; Colyear v. Mulgrave, 2 Keene, 81. In the United States, the weight of authority is against the plaintiff in error. In New York, in Maryland and Ohio, it has been decided that the vendor's lien can not be enforced in favor of the assignee upon a transfer of the notes for the purchase money: Schnebly v. Ragan, 7 Gill & J. 120 [28 Am. Dec. 195]; Iglehart v. Armiger, 1 Bland, 524; White v. Williams, 1 Paige, 502; Jackman v. Hullock, 1 Ohio, 318 [13 Am. Dec. 627]; Tiernan v. Beam, 2 Id. 383 [15 Am. Dec. 557]; 2 Sugd. Vend. 140, note. In Tennessee and Kentucky, the question has been ruled the other way: See Eskridge v. McClure, 2 Yerg. 84; Kenny v. Collins, 4 Litt. 289; Eubank v. Poston, 5 T. B. Mon. 287; Edwards v. Bohannon, 2 Dana, 99; Johnston v. Gwathmey, 4 Litt. 317. If the vendor seeks to enforce his lien upon the assets of the vendee to the injury of other creditors, they may have the assets marshaled, and compel him to go upon the land. This is done upon the familiar principle that one having a claim upon two funds may, at the instance of him who has a claim upon one of them, be forced to seek satisfaction out of that fund upon which the latter creditor has no claim, in order that both may be paid. This rule makes nothing in favor of the enforcement of this lien in favor of third persons. It is not the enforcement of the lien in favor of the creditors in whose favor the assets are marshaled, but a control which equity takes over the manner in which the vendor himself shall enforce it.

Neither does the rule, that purchasers from the vendee, who have paid the lien, may be substituted to the place of the vendor, as against other claimants on the estate under the vendor, avail anything for the plaintiff in error. They do not claim the lien from the vendor, nor are they substituted upon the score of being assignees of the lien; but upon the ground that they stand, in relation to vendor and vendee, as sureties for the latter to the former, and having paid the debt, are, in equity, subrogated to the rights of the creditor, as against their principal.

The courts do not favor secret liens. The vendor's is a secret, invisible, unregistered lien. We are wholly disinclined to extend it to the assignees of the notes, or in any way to break over the limits within which it is now happily confined. Being secret, it is opposed to the policy of all our own legis lation upon the subject of liens.

Let the judgment be affirmed.