escrow deed the rights and remedies of the creditors of the vendor are the same as in the case of an executory sale, evidenced by a bond for a deed. In both cases the vendee has but an equitable interest in the property, and the legal title remains in the vendor; and where the escrow agreement requires the vendee to make payments to the depositary, he being a mere stakeholder, without any personal interest in the fund, the vendee is only bound to pay to him, while the grantor alone is the party in interest. But when a creditor of the grantor has laid hold of his interest in the property, and the grantee has notice of that fact, he is bound by the new conditions. However, the docketing of the judgment is not constructive notice to him. He is not bound to search the records every time he makes a payment. He is entitled to the benefit of all payments made to the vendor until he has actual knowledge of the lien. Freeman, Judgments, section 364; 1 Black., Judgments, section 438; 17 A. & E. Encyc. of Law (2d ed.) 780; Wehn v. Fall, 55 Nebr. 547; Tayloe v. Thompson, 5 Pet. (U. S.) 357; Moyer v. Hinman, 13 N. Y. 180; Hampson v. Edelen, 2 Har. & John. (Md.) 64; Parks v. Jackson, 11 Wend. (N. Y.) 442.79

Defendant was not required to make the payments to plaintiff as they matured, until plaintiff acquired the vendor's rights. The vendee can not assume to determine for himself, and at his own risk, the controversy between plaintiff and his debtor; and defendant need not go into equity to settle their differences. He may stand upon his contract, and when plaintiff has acquired the vendor's right to the money by perfecting title in himself the defendant will be justified in making payment to him. In McMullen v. Wenner, 16 Serg. & R. (Pa.) 19, it is held that the sale on execution binds the legal estate, and the execution purchaser stands in the place of the original vendor, and is entitled to the unpaid purchasemoney, the payment of which he can enforce by ejectment; and this works no hardship on the vendee, as he can protect himself by withholding further payments, unless he is indemnified. And upon payment to the judgment creditor he is entitled to a conveyance of the legal title vested in the sheriff's vendee. Moyer v. Hinman, 13 N. Y. 180; Id., 17 Barb. (N. Y.) 137. In the latter case it is held that the judgment against the vendor is a charge upon the land, and binds the legal title; but equity limits and restricts this lien to the amount of the unpaid purchase-money due from the vendee, and the vendee may insist upon a conveyance of the premises upon payment of the purchase-price.

In Stewart v. Coder, 11 Pa. 90, it is held that when the vendor retains the legal title for the security of unpaid purchase-money,

"Accord: Vance v. Workman, 8 Blackf. (Ind.) 306 (1846); Filley & Hopkins v. Duncan, 1 Nebr. 134, 93 Am. Dec. 337 (1859); Shinn v. Taylor, 28 Ark. 523 (1873); Floyd v. Harding, 28 Grat. (Va.) 401 (1877); Schroeder V. Gurney, 73 N. Y. 430 (1878); Logan v. Pannill, 90 Va. 11, 17 S. E. 744 (1893). Unless it can be shown that the payments were made with actual knowledge of a lien on the vendor's interest in the land, Wehn v. Fall, 55 Nebr. 547, 76 N. W. 13, 70 Am. St. 397 (1898). Compare State Bank of Decatur v. Sanders, 114 Ark. 440, 170 S. W. 86 (1914).

a judgment against him is a lien not only on the naked title, but it also attaches on the money remaining unpaid, and the execution. purchaser may enforce payment by an action in ejectment. A judgment creditor has a right to sell the vendor's interest in the property, and in that manner acquire his interest in the debt, as well as the property, as security for its payment. Olander v. Tighe, 43 Nebr. 344; Doe v. Startzer, 62 Nebr. 718. Whether the creditor has a remedy by attaching the debt or whether in all cases that remedy would be adequate, need not be decided here; the remedy by judgment and execution sale of the vendor's interest is a proper one. But the defendant has not forfeited his rights by failing to redeem from plaintiff's execution sale. He is not a redemptioner until he has received the escrow deed, which he can secure only by paying the purchase-price to the depositary, which would thus require a double payment; and, without the peril of litigation with the vendor, he could not pay plaintiff until the vendor's interest is extinguished. The burden is upon plaintiff to put himself in a position to demand the money from the defendant. This makes it necessary for him to acquire the vendor's right and title.

Defendant has pleaded possession under his contract of purchase, of which the plaintiff at all times had notice; and, until the defendant has forfeited his right to possession thereunder, he can not be ousted. The stipulation in this case discloses that he paid the money to the depositary, but that is not an act of forfeiture, even though such payment may be a total loss to him. Tomlinson v. Blackburn, 37 N. Car. 509.

But defendant can not be ousted by plaintiff until the latter has placed him in default, by tendering him a deed and demanding the money. The execution of the deed by plaintiff and the payment of the purchase-money by the defendant are concurrent acts. Guthrie v. Thompson, 1 Ore. 353; Wolcott v. Madden, 10 Ore. 370; Powell v. Dayton, etc., R. Co., 12 Ore. 488.

The defendant is not in default, and therefore can not be ousted by ejectment; and the judgment is reversed.80

Reversed.

SOA judgment lien accruing against a vendor of land after the making of the contract of sale binds his interest in the land to the extent of the unpaid purchase money. Catlin v. Robinson, 2 Watts (Pa.) 373 (1834); Lane v. Ludlow, 2 Paine (C. C.) 591, Fed. Cas. No. 8052 (1835); Moyer v. Hinman, 13 N. Y. 180 (1855); Patton v. Hollidaysburg, 40 Pa. St. 206 (1861); Lefferson v. Dallas, 20 Ohio St. 68 (1870); Jackson v. Snell, 34 Ind. 241 (1870); Minneapolis & St. Louis R. Co. v. Wilson, 25 Minn. 382 (1879); Pack v. Hansbarger, 17 W. Va. 313 (1880); Hardee v. McMichael, 68 Ga. 678 (1882); Coolbough v. Roemer, 30 Minn. 424, 15 N. W. 869 (1883); Berryhill v. Potter, 42 Minn. 279, 44 N. W. 251 (1890); Snyder v. Botkin, 37 W. Va. 355, 16 S. E. 591 (1892); Kinports v. Boynton, 120 Pa. St. 306, 14 Atl. 135, 6 Am. St. 706 (1888); Valentine v. Seiss, 79 Md. 187, 28 Atl. 892 (1894); First Nat. Bk. v. Edgar, 65 Nebr. 340, 91 N. W. 404 (1902); Zenda Min. Co. v. Tiffin, 11 Cal. App. 62, 104 Pac. 10 (1909).

DOE EX DEM COOPER v. CUTSHALL

SUPREME COURT OF INDIANA, 1848

I Ind. 246

Ejectment, by Doe on the demise of Cooper against Cutshall. Judgment for the defendant below. Cutshall derives title from Comparet; Cooper, the lessor of the plaintiff, from Norris. The facts of the case are these:

On the 9th of August, 1831, Francis Comparet sold the land in controversy to Luke Norris, gave him a title-bond for, and put him in possession of it. Norris continued in possession till December, 1833, and made improvements. At the time he found he should be unable to pay for the land, and, accordingly, surrendered the possession and title-bond, received back his notes, given for the purchase-money, and the contract was then cancelled by mutual consent. Comparet then sold the land to Cutshall.

On the 2d of May, 1833, Stephen Coles obtained a judgment in the Allen Circuit Court against said Luke Norris; and on the 20th day of May, 1834, had the land in dispute sold, on an execution on said judgment against Norris, at which sale, Henry Cooper, the lessor of the plaintiff, became the purchaser. Such are the respective titles of the parties. The plaintiff claims to succeed on the ground that the judgment of Coles was a lien on the equitable estate of Norris in the land, under his title-bond and possession, and that, by the sheriff's sale and deed, that interest and right of possession were conveyed to Cooper, his lessor; and he relies upon the cases of Jackson v. Parker, 9 Cow. (N. Y.) 73, and Wayman et al. v. Harding, 3 Blackf. (Ind.) 26. The case of Jackson v. Parker was examined, and held not to be law in this state, in Modisett v. Johnson, 2 Blackf. (Ind.) 431; and Modisett v. Johnson was reviewed and confirmed by this court in Orth v. Jennings et al., 8 Blackf. (Ind.) 420. The case of Wayman et al. v. Hardin, has no bearing upon the present.

We think Cole's judgment was no lien on the land held by Norris, and that the sale by the sheriff of the land, under Cole's judgment, and his deed pursuant to said sale, conveyed no title to Cooper, the plaintiff's lessor.

The judgment is affirmed with costs, etc.81

Many cases hold that the interest of a vendee in possession under a contract of purchase is equitable and not subject to the lien of a judgment against him. Modisett v. Johnson, 2 Blackf. (Ind.) 431 (1831); Davis v. Cumberland, 6 Ind. 380 (1855); Gentry v. Allison, 20 Ind. 481 (1863); Evans v. Feeny, 81 Ind. 532 (1882); Roddy & Co. v. Elam, 12 Rich. Eq. (S. Car.) 343 (1866); Merchants' Nat. Bank v. Eustis, 8 Tex. Civ. App. 350, 28 S. W. 227 (1894); Rosenberger v. Jones, 118 Mo. 559, 24 S. W. 203 (1893); Sweeney v. Pratt, 70 Conn. 274, 39 Atl. 182, 66 Am. St. 101 (1898); Powell v. Bell, 81 Va. 222 (1885); Nelson v. Turner, 97 Va. 54, 33 S. E. 390 (1899). In New York the decisions were conflicting, compare Bogert v. Perry, 17 Johns. (N. Y.) 351 (1819), with Jackson ex dem. Cary v. Parker, 9 Cow. (N. Y.)

MUTUAL ASSUR. SOC. V. STANARD

631

MUTUAL ASSUR. SOC. v. STANARD

SUPREME COURT OF APPEALS OF VIRGINIA, 1815

4 Munf. (Va.) 539

The Mutual Assurance Society against fire on buildings, in the state of Virginia, filed a bill in the Superior Court of Chancery for the Richmond District, against Larkin Stanard, and Beverley C. Stanard and Robert S. Chew, trustees in a deed executed by the said Larkin, for the benefit of sundry creditors of his, who were also made defendants.

The object of the bill was to obtain satisfaction of a judgment rendered by the district court of Fredericksburg, in favor of the

73 (1828); Ellsworth v. Cuyler, 9 Paige (N. Y.) 418 (1842); Salisbury v. La Fitte, 21 Colo. App. 13, 121 Pac. 952 (1912); Ross v. Nichols, 25 Colo. App. 409, 138 Pac. 1013 (1914). The revised statutes provided that such an interest should not be bound by the docketing of a judgment, nor sold by execution thereon, Griffin v. Spencer, 6 Hill (Ñ. Y.) 525 (1844); Boughton v. Bank, 2 Barb. Ch. (N. Y.) 458 (1847), and this provision is re-enacted in the Code of Civil Procedure, § 1253. Packard v. Sugarman, 31 Misc. 623, 66 N. Y. S. 30 (1900). (But the interest can be reached by attachment, Higgins v. McConnell, 130 N. Y. 482, 29 N. E. 978 (1892).

Where, by statute or decision, a judgment is a lien on_an_equitable estate in lands the rule is otherwise. Baldwin v. Belcher, 1 J. & L. 18 (1844); Walcott & Calder v. Lynch, 13 Ir. Eq. R. 199 (1850); Adams v. Harris, 47 Miss. 144 (1872); Rand v. Garner, 75 Iowa 311, 39 N. W. 515 (1888); Stewart v. Berry, 84 Ga. 177, 10 S. E. 601 (1889); Washington v. Bogart, 119 Ala. 377, 24 So. 245 (1898); Davis v. Vass, 47 W. Va. 811, 35 S. E. 826 (1900). In Pennsylvania, “A judgment against the equitable estate which a vendee holds under articles of agreement for the sale and purchase of land attaches to and binds the legal estate the instant that it vests in the vendee." Water's Appeal, 35 Pa. St. 523, 78 Am. Dec. 354 (1860); Richter v. Selin, 8 Serg. & R. (Pa.) 425 (1822); Auwerter v. Mathiot, 9 Serg. & R. (Pa.) 397 (1823); Episcopal Academy v. Frieze, 2 Watts (Pa.) 16 (1833); Foster's Appeal, 3 Pa. St. 79 (1846); Russell's Appeal, 15 Pa. St. 319 (1850); Lloyd, Huff and Watt's Appeal, 82 Pa. St. 485 (1876); Eberly v. Lehman, 100 Pa. St. 542 (1882). But a vendee who has paid no part of the purchase money and with the consent of the vendor has cancelled the articles of agreement, has no estate which would be bound by the lien of a judgment against him. Raffensberger v. Cullison, 28 Pa. St. 426 (1857).

At common law a judgment at law is not a lien upon an equitable interest, the creditor must have relief in equity. Jackson ex dem. Montgomery V. Chapin, 5 Cow. (N. Y.) 485 (1826); Baird v. Kirtland, 8 Ohio 21 (1837); New York Dry Dock Co. v. Stillman, 30 N. Y. 174 (1864); Morsell v. First Nat. Bank, 91 U. S. 357, 23 L. ed. 436 (1875); Brandies v. Cochrane, 112 U. S. 344, 28 L. ed. 760, 5 Sup. Ct. 194 (1884); Trusdell v. Lehman, 47 N. J. Eq. 218, 20 Atl. 391 (1890); Sipley v. Wass, 49 N. J. Eq. 463, 24 Atl. 233 (1892); Cummings v. Duncan, 134 N. W. 712, 22 N. Dak. 534, Ann. Cas. 1914B, 976n (1912); Smith v. Collins, 81 N. J. Eq. 348, 86 Atl. 957 (1913). In Pennsylvania, in the absence of a court of chancery it was established as a principle that judgments were liens on equitable estates. Carkhuff v. Anderson, 3 Binn. (Pa.) 4 (1810); Fair Hope North Salvage Fire Brick Co.'s Estate, 183 Pa. St. 96, 38 Atl. 519 (1897). And in several states statutes provide that a judgment is a lien on equitable interests in real estate. McMechen v. Marman, 8 Gill & J. (Md.) 57 (1836); Blain v. Stewart, 2 Iowa 378 (1856); Niantic Bank v. Dennis, 37 Ill. 381 (1865); Trimble v. Hunter, 104 N. Car. 129, 10 S. E. 291 (1889); Weaver v. Smith, 102 Tenn. 47, 50 S. W. 771 (1898); Barlow v. Cooper, 109 Ill. App. 375 (1902).

complainants, against the defendant, Larkin Stanard, at April term, viz., on the 6th of May, 1808, by subjecting for that purpose a tract of land, and sundry slaves and other personal property ("being all his estate, real and personal") which he had conveyed by that deed, bearing date the 28th of April, and recorded on the 9th of May, 1808.

Larkin Stanard and the trustees in their answers denied the charge of fraud made in the bill. The other defendants appeared to be just creditors, and by their answers stated their claims, to satisfy which the deed was given. It did not appear that the plaintiffs had sued out any execution upon their judgment. Chancellor Taylor dismissed the bill and plaintiffs appealed.82

83

ROANE, J.: The court is of opinion, that, as it appears in evidence, in this cause, that the deed of trust in the proceedings mentioned, was executed on and after the first day of the term in which the appellants' judgment was obtained, and as that judgment relates to the said first day, inclusively, the said deed of trust could not vacate or affect the lien on the land created by the judgment, that, consequently, it was incompetent to exclude the claim of the appellants upon the land thereby conveyed; and that the right of the trustees under the same ought to be taken in subordination thereto; that, as the said deed provided, that the said land should be sold to answer the purposes of the said trust, the court is of opinion, that the trustees therein named, should have been decreed to sell the same, and pay, in the first place, the principal sum, interest and costs, due to the appellants by the said judgment, out of the proceeds thereof, after which they should be held at liberty to proceed in the execution of their trust; and that there is error in so much

82

$2A portion of the statement of facts is omitted.

83 At common law, judgments of a court of record, on whatever day of the term entered, related back to the first day of the term and overreached as a lien all intermediate conveyances of, or, charges upon, the debtor's lands. Standford v. Cooper, Cro. Car. 102 (1627); 2 Tidd's Pr. 967, 3 Salk. 212. The Statute of Frauds (29 Car. II, ch. 3, §§ 14, 15), required that the true date of all judgments should be noted in the margin of the roll, and provided that, as against bona fide purchasers for value, such judgments should bind from the time they were signed. Odes v. Woodward, 2 Ld. Raym. 766 (1702); Robinson v. Tonge, 3 P. Wms. 398 (1735); Fann v. Atkinson, Willes 427 (1743); Swann v. Broome, 3 Burr. 1595 (1764); Bragner v. Langmead, 7 T. R. 20 (1796); Waghorne v. Langmead, 1 B. & P. 571 (1796). The common-law rule was followed in a number of early American cases. Coutts v. Walker, 2 Leigh (Va.) 268 (1830); Skipwith v. Cunningham, 8 Leigh (Va.) 271, 31 Am. Dec. 642 (1837); Brockenborough v. Brockenborough, 31 Grat. (Va.) 580 (1879); Farley v. Thomas L. Lea, 3 Dev. & B. (N. Car.) 169 (1838); Urbana Bank v. Baldwin, 3 Ohio 65 (1827); Riddle v. Bryan, 5 Ohio 49 (1831), and with some statutory qualifications is still the law in several states, Colt v. Du Bois, 7 Nebr. 391 (1878); Hayden v. Huff, 60 Nebr. 625, 83 N. W. 920 (1900); Coad v. Cowhick, 9 Wyo. 316, 63 Pac. 584, 87 Am. St. 953 (1900); Bowlin v. Garrett, 49 Kans. 504, 31 Pac. 135, 33 Am. St. 377 (1892); Holman v. Miller, 103 N. Car. 118, 9 S. E. 429 (1889); Jeffrey v. Moran, 101 U. S. 285, 25 L. ed. 785 (1879 Ohio); Nat. Bank v. Tennessee C. &c. R. Co., 62 Ohio St. 564, 57 N. E. 450 (1889); New South Building & L. Assn. v. Reed, 96 Va. 345, 31 S. E. 514, 70 Am. St. 858 (1898); Smith v. Parkersburg Co-op. Assn., 48 W. Va. 232, 37 S. E. 645 (1900); McKinney v. Street, 165 N. Car. 515, 81 S. E. 757 (1914).