Opinion. that such purchasers had actual notice of it. Therefore, an express lien having been taken to secure the purchase money due from Ficklin, void as to subsequent purchasers from him or his alienees by reason of the failure to record the same as required by the registry laws, appellants cannot be permitted to set up the implied vendor's lien as security for the payment of the claim they now assert. Without a recordation of this trust deed, or actual notice of it, the purchasers at the judicial sale of the property in Coons and wife against Ficklin took such title as George Ficklin might have conveyed in his lifetime, which would have been a mere equity of redemption had the trust deed been duly recorded, but was in fact a valid legal title, free from the incumbrance of the deed of trust, it not having been duly recorded. The recordation of Ficklin's deed was not necessary to invest him with the legal title. It gave him no greater or higher estate by having it recorded, and as between him and his vendee he could have passed all he had, whether his title was recorded or not, free from the incumbrance of the unrecorded trust deed; and such was the effect of the conveyance from the commissioners of sale to Brown, Wood, and Rixey, from whom appellees derive title. There is no pretense in the record that appellees, or those from whom they derive title, had actual notice of the claim asserted by appellants. As was said in Floyd v. Harding, 28 Gratt. 401: It is no hardship on parties claiming the right to subject property under a deed of trust to the payment of money due them to have their deed duly and properly spread upon the records of the county, so as to affect other people desiring to purchase such property with notice thereof. However much courts of equity may incline to resort to every just and proper means to enforce the payment of purchase money due for property, there are others whose rights are equally to be considered, and whose claims upon the conscience of the chancellor are equally as strong and cogent as Opinion. those that are made by vendors who are seeking to enforce payment of their purchase money, and they are those who can say that they have in good faith bought the property which is the subject-matter of litigation, paid their purchase money therefor, and are in no default. Purchasers at a judicial sale are entitled to the same protection against an unrecorded trust deed as a purchaser from a private individual. The statute makes no distinction. 16 Am. & Eng. Enc. Law, 831; Zollman v. Moore, 21 Gratt. 325. So a purchaser of equitable title is protected against an unrecorded trust deed. Preston's Admr. v. Nash, 76 Va. 1. It is true that notice sufficient to affect a subsequent purchaser from one who holds title subject to a lien upon property may be inferred from circumstances, as well as proved by direct evidence; but the proof must be such as to affect the conscience of the purchaser, and must be so strong and clear as to fix upon him the imputation of mala fides. As stated by Mr. Minor (2 Minor, Inst. 887): "The effect of the notice which will charge a subsequent purchaser for valuable consideration, and exclude him from the protection of the registry law, is to attach to the subsequent purchaser guilt of fraud. It is, therefore, never to be presumed, but must be proved, and proved clearly. A mere suspicion of notice, even though it be a strong suspicion, will not suffice." See, also, Vest v. Michie, 31 Gratt. 149, 31 Amer. Rep. 722; Mills Co. v. Strough, 98 Va. 721, 37 S. E. 290; Fischer v. Lee, 98 Va. 163, 35 S. E. 441. In this case not only is there no proof whatever of such facts and circumstances as would warrant the inference of notice to appellees sufficient to affect their conscience, but in fact it appears that in a petition filed in the case of Coons and wife against Ficklin by a commissioner of the court in Green against. Smith, then charged with the collection of the very debt that is now here asserted, and in which he sought to be substituted to the rights of others who had received the purchase money Opinion. from the sale of property belonging to George Ficklin in the first-named case, and referring to the lots now owned by appellees, this statement is made: "Said lots have long since passed into the hands of innocent third, fourth, or fifth parties, who have been bona fide purchasers, and it would be inequitable to proceed against them now for said purchase money, as your petitioner would be obliged to do if the said debts should not be paid in full in this suit." This petition was not filed until 1886, at the March term of the court, and but a few years after the first effort was made to collect the George Ficklin bond, even against Ficklin's estate, or his surety on said bond; and, if the holders of the lots in question were then to be regarded as innocent purchasers for value, without notice, they remain so, since there is no proof in the record to the contrary. We are of opinion that the decree of the Circuit Court denying the right of appellants to subject these lots to the claim they assert and dismissing their petition is plainly right, and it is therefore affirmed. Affirmed. Syllabus. Richmond. HUDSON V. BARHAM. January 15, 1903. 1. TRUSTS AND TRUSTEES-Impediments to a Fair Sale-Duty of Trustee-Rights of Parties Interested.-A trustee in a deed of trust to secure debts is the agent of both parties, and it is his duty to bring the property to sale under the best possible conditions. If there is any cloud on the title, or there is doubt or uncertainty as to the debts secured, or the amount thereof, or disputes or conflicts among creditors, or any other impediment to a fair sale, he should file a bill to have the matter determined, and he may and should delay the sale until the matter has been adjusted. If he fails or refuses to discharge his duty in this respect, any party interested or who would be injured by his default, may apply to a court of equity to have the necessary steps taken. 2. TRUSTS AND TRUSTEES-Liens on Trust Subject.-It is not the duty of a trustee to invoke the aid of a court of equity before making a sale merely because there are liens on the trust subject, but only where such aid is necessary in order to remove some impediment to the fair execution of the trust. 3. CHANCERY PRACTICE-Conflicting Liens on Trust Property-Retaining Case.-On a bill filed to enjoin a trustee from selling the trust subject as a whole, where it appears that the property conveyed has been subsequently divided into lots, and portions of it sold to different purchasers who have erected buildings thereon, and that there are liens of mechanics and others on the different lots, and other impediments to a fair sale, the court should settle the questions raised by the bill and retain the cause and have the trust executed under its supervision. 4. INJUNCTIONS-Dissolution-Answer Under Oath-Effect.-On a motion to dissolve an injunction, statements of fact contained in an answer that is sworn to should be taken as true in the absence of evidence to the contrary. Opinion. 5. MECHANICS' LIENS-Prior Deeds of Trust-Extent of Lien-How Ascertained. Where a mechanics' lien is recorded against property on which there is a prior deed of trust, the trust creditor has priority only to the extent of the value of the land, exclusive of the buildings or structures placed thereon by the mechanic since the lien of the deed of trust was created, and the value of the land is to be ascertained at the time the liens are enforced by the court. The value of the land is to be fixed by the court before sale, and the court may fix such value either from evidence submitted to it directly, or through the finding of a commissioner, subject to review by the court. The value so fixed is all that the trust creditor can get from the proceeds of sale until the mechanics' liens thereon have been satisfied. 6. CHANCERY PRACTICE-Account of Liens-Case in Judgment-Subsequent Liens on Property Conveyed in Trust-Sale in Parcels.-In this case the trust subject having been divided into lots, and the lots having been sold to various persons who have erected buildings thereon, against which mechanics have docketed liens, and there being judgments constituting liens on some of the lots, an account should be taken showing what parts of the trust subject have been sold and to whom, with a view to selling the property in the inverse order of alienation; and the rights and priorities of the lien creditors should be ascertained and settled before a sale is ordered. 7. APPEAL AND ERROR-Refusal to Grant Injunction.-No appeal lies to this court from an order of a circuit court refusing an injunction; the remedy in such case being by application to this court to grant the injunctton refused. Appeal from two decrees of the Circuit Court of Elizabeth City county, pronounced October 5, 1901, and October 24, 1901, in a suit in chancery, wherein the appellant was the complainant, and the appellees, T. J. Barham, trustee, and W. E. Barrett, were the defendants. The opinion states the case. Raymond M. Hudson, for the appellant. John W. Friend, for the appellee. HARRISON, J., delivered the opinion of the court. Reversed. This is an injunction bill, alleging that on March 8, 1900, |