of land, containing eight hundred acres, at four dollars fifty cents per acre, amounting to four thousand four hundred dollars. For two of these quarter sections, Newman had obtained a patent. The remaining three had not been paid for, in full, to the government, and consequently were held by certificates of purchase. Beam was to complete the payments, and, to enable him to do so, the certificates were assigned. The legal title of the two quarters remained in Newman, who gave a title bond, in the penal sum of seven hundred and fifty dollars, with a condition to convey them on the payment of the sum. One thousand two hundred dollars of the purchase money was paid in hand—notes, or sealed bills, with the defendant Hedges, as security, were given for the residue, payable by instalments. Newman, the vendor, died in 1813, having devised the notes to his widow, one of the defendants in this suit. Payments were made by Beam to Newman in his life, and to his widow since his death, by which the debt has been reduced to one thousand one hundred and sixtyseven dollars and seventy-six cents. After the death of Newman, his executors obtained a general order of court to execute deeds. The order is admitted by both parties to have been illegal and void. The executors, however, executed a deed to Beam, for the two quarter sections in question, on the supposed validity of that order. The complainant obtained a judgment against Beam in August, 1817, in Belmont county, on which there is a balance of one thousand two hundred dollars due. Execution on this judgment has been sent to Richland county and levied on the two quarter sections not conveyed, there being, as it is alleged, no other property on which the money can be made.— The object of the bill is, to subject the two quarter sections to sale, for the satisfaction of the complainant's judgment. The principal matter in dispute is, whether the court will require the defendants, or those holding the legal title, to part with it for the benefit of the complainant, before the residue of the purchase money is paid.

The principal points discussed by the counsel, are the following: 1st. Had the vendor a lien on the land for the purchase money?

2d. If he had such a lien, has it been lost or relinquished by the subsequent conduct of the parties?

3d. Did the payment of the sum of seven hundred and fifty dollars, named in the bond, entitle the purchaser to a deed for the two quarter sections, before the whole of the purchase money due on the contract was paid?

4th. Will the court give effect to the deed made to Beam by the executors of Newman, agreeably to the prayer of the bill?

On the first point, the authorities clearly show, that a vendor has a lien on the premises sold, for the purchase money, and that his lien is not affected by conveying the premises, and taking a note or bond, with personal security, for the money. It exists in every case of a sale, where the money is not paid, unless it be otherwise agreed by the parties, either expressly or by such arrangements as clearly show their intention, and it is incumbent on the party contesting the lien, to show that it has been relinquished. (9 Ves. 209. Tumner v. Bayne, 1 John. Rep. 308. 2 Ves. 622. 3 Eq. Ca. Ab. 682, [n.] 1 Vern. 267. 3 Atk. 272. 6 Ves. 752. 3 Bibb. Rep. 183. 1 Wash. Rep. 142. 1 Brow. Cha. Rep. 301) In Pennsylvania, and in South Carolina, the right of the vendor to this equitable lien seems not to have been recognized, but it has been admitted

and enforced in most of the state courts, and in this court, as often as the question has been presented. (Jackman v. Hallock, 1 Ohio Rep. 318.) As between vendor and vendec, the rule is not questioned by the counsel on either side.— But on the part of the complainant, it is strenuously contended, that it does not exist in favor of these defendants, and a variety of circumstances have been referred to, for the purpose of taking the case out of the rule. As for example, that the vendor took obligations with personal security, for the purchase money, and that those obligations were payable by yearly instalments. The first part of this objection has been disposed of already, and it is not easy to discover, why the fact, that the money was payable by instalments, should charge the rights of the parties. That circumstance cannot affect the contract, or the consequence resulting from it. As to every thing connected with this question, it is immaterial whether the money be payable in a gross sum, or by instalments, on different days. It was also urged, that because the legal title was retained by the vendor, for a time, and afterwards conveyed, with the assent of the devisee, we must draw the conclusion, that the parties did not intend to have a lien reserved. To rebut the inference drawn from this circumstance, it is only necessary to state, that the retaining of the title by Newman till the time of his death, evidences a determination on his part to hold the land as his sccurity; and that, as the executors were not privy to the contract, and were ignorant of the intention and understanding of the parties, at the time it was made, their attempt to convey the land after the death of Newman, cannot have any bearing on the question; we cannot draw from it an inference inconsistent with the manifest design of the vendor. But this qustion does not rest on inference alone. The testimony of Pierce, proves that it was a part of the contract, that Newman should hold the land as security for the money. Such proof however was not necessary on the part of the defendants. The existence of the lien must be presumed, until the contrary appears. It rests with the complainant to show that the vendor did not rely on it.

The second enquiry is, has the lien been lost by any thing that has taken place since the contract was made. The complainant contends, that if the lien did exist in the life of Newman, it ceased at his death, and that the devisee cannot claim it, because by the devise, the debt has been separated from the land. The case of Jackman v. Hallock, (1 Ohio Rep. 318,) has been cited to sustain this position. That was a claim set up by the assignee of a note, in the life of the vendor. It was a transaction between the living. A majority of the court were of opinion, that the lien did not pass by the assignment. But the circumstances of the two cases are materially different, and the decision in that case does not necessarily conclude this. The force of the argument used on that occasion, seems to be, that the vendor may separate the equitable lien, from the legal right, that he may assign the latter but cannot pass the former, because it is given for his own exclusive benefit. Adopting this reasoning as conclusive, it admits that while he retains the legal right, the equity will attach to it, and upon that principle, if he retain them united till his death, they must both descend to his heir, or pass to his devisee, because the act of God shall not injure any The death of a vendor cannot impair his rights. They must pass to his representatives in the condition in which they were, at his death. If the debt, in the hands of Newman, during his life, was an equitable lien on the land, it must

man.

continue so in the hands of the heir or devisee, for at his death all his legal and equitable rights, pass by operation of law, in the same state in which he held them. No good reason can be assigned why any of them should be forfeited by an act of Providence not under his controul. The duration of an estate may be limited by the terms of the grant, to the life of the grantee. But such a limita. tion was not contemplated by the parties in this case. The rights mutually acquired were intended to survive. There was nothing in the nature or terms of the agreement inconsistent with such an incident, and I do not see by what rule of construction, a limitation can be applied to the equitable, that does not equally affect the legal right. The security for the debt, should be as permanent as the debt itself. They ought to exist and expire together. The object of the one was to ensure the enjoyment of the other, and if either is to be forfeited by the death of a party, I am at a loss to determine which it should be. The lien of a vendor is not founded on arbitrary principles, that require a rigid construction. It is not of such a nature as should induce a court to lay violent hands on it, when. ever a plausible pretext can be found for doing so. It is founded on principles of justice, and ought therefore to be protected. It originated in the care which the law has for the preservation of equitable rights. It was intended to prevent one man from enjoying the property of another, without consideration, and it therefore applies as well to the representatives of a deceased vendor, as to the vendor himself. It is in the nature of a mortgage, provided by the benignity of the law for those who may have been too confiding; and in my estimation, our legal system would be imperfect without it. The great object of every code of laws is, to prevent injustice, and the more effectually that end is accomplished, the nearer does it approach to perfection. Justice certainly requires that real property, sold on contract, should be answerable for its price, as far as is consistent with the safety of third persons. Hence legal mortgages have been resorted to, and the doctrine of equitable liens has been established; and as these securities are similar in their operation, and have originated from the same policy, they ought to be equally favoured. In Martin v. Mowlen, and Green v. Hart, (2 Burr. 979. 1 John. Rep. 590) mortgages are treated as chattel interests, which may be discharged by parol, not being within the statute of frauds. This would show that there is no essential difference between legal and equitable mortgages, as to the solemnity required in their discharge. They both originate in contract, the one by express stipulation, the other by operation of law.

From this view of the subject, it seems to be a just conclusion, that the death of Newman did not extinguish his lien on the land in question, and that the right survived for the benefit of those to whom it legally belongs.

As the death of Newman, and the attempt to convey by his executors, are the only circumstances which have taken place since the contract was made, calcu lated, in the opinion of counsel, to destroy the lien, and as neither of these is suf. ficient for that purpose, the conclusion follows, that if the lien ever existed, it continues to exist.

But before this point is dismissed, I will notice some of the authorities cited by counsel as having a bearing on it.

Much importance is attached to Pollexfen v. Moore, (3 Atk. 272.) The de fendants rely on it to establish the lien, and the complainant quotes it, to show

that the lien expired at the death of the vendor. It has often been remarked, that the report of that case was very obscure, and the Master of the Rolls, in Trimmer v. Bayne, (9 Ves. 210) affirms, that Lord Hardwicke destroys his own dictum, that "the equity will not extend to a third person," by the decree which he makes in the same case. The object of the cross bill was to protect a legacy, given out of the personal estate, either by requiring the complainant in the principal bill, who was a vendor, seeking for his purchase money, to resort to his equitable lien, or otherwise, if he were allowed to exhaust the personal estate to the prejudice of the legatee, that she might succeed to his equitable right; and in the face of his own dictum, the chancellor marshalled the assets, so as to give her all the relief she was entitled to. He established the equitable lien, and confined the vendor to that fund, by which the personal estate, was, so far pre. served, for the legatees. In other words, he decided, that the land, after it had descended to the heir of the purchaser, should be bound for the purchase money, for the benefit of a person not a party to the contract; and not only so, but that the vendor should resort to that lien, and exhaust the fund in the first in. stance. The object of the cross bill was therefore gained, and the equitable lien enforced, for the benefit and at the instance of a third person.

So for as the principle, really settled in that case, has a bearing on the dictum of the Chancellor, it appears to condemn it, and to favor the conclusion, that it has been introduced by the carelessness, or misapprehension of the reporter. It appears however to be the foundation of the doctrine now contended for, and to have led to all the controversy on the subject, which is found in the subsequent cases. But the object I had principally in view in turning to that case, was, to distinguish it from the case before us, by shewing that these defendants cannot be treated as third persons in the sense in which the Chancellor used the phrase. Mrs. Moore, whom Lord Hardwicke denominated a third person, was not concerned in the sale, or purchase of the land, she had no interest, either original, or derivative in the purchase money. Her claim had no connexion with the debt created by the purchaser, or with the lien which the law created for its security. She was, in the literal sense of the word, as to that transaction, a third person, a stranger, seeking to protect a legacy, that had no relation to the sale of the land, and in which the vendor never had an interest. Her prayer was if the vendor did not avail himself of the lien, that the court would place her in his shoes, and transfer to her his equitable right. A simple statement of the case shows that it is not analogous. Mrs. Newman, in this sense, is not a third person, she cannot be called a stranger to the transaction, she has succeeded to the rights of her husband, resulting from that contract-she stands in the shoes of the vendor, and as the legal owner of the debt, claims the benefit of the security attached to it. She is the only party in interest. The lien cannot operate in favor of any other person; she does not attempt to meddle with the rights of others, and cannot therefore be denominated a third person.

That case ought not to be carried further than its terms necessarily require, Subsequent cases should not be brought within its influence by remote analogy. Mortgages are considered as inseparable from the debts to which they relate. They follow them as the shadow follows the substance, so that any act amounting to a legal transfer of the debt, will carry with it the mortgage. In Martin vs. Mowlen, (2 Burr, 973) Lord Mansfield states it as a settled rule, that a mort.

gage, being a charge on the land, whatever will give the money, will convey the estate in the land along with it, to every purpose. If the debt be assigned, devised, or discharged, without naming the mortgage, the mortgage will share the fate of the debt. The right in it, passes by the operation of law, rather than by the act of the party. Green v. Hart, (1 John. 580) adopts the same principle. The dictum of Lord Hardwicke as it is expounded by the complainant, would be inconsistent with the doctrine maintained in these and other cases of similar import. But it appears to me, that it cannot be applied to a person who has acquired an intertest in the debt, and with that limitation, it has no unfavorable bearing, on the claim of the defendant, nor does it conflict with the cases just cited.

It must be recollected, however, that the matter directly in contest between these parties, is the two quarter sections not conveyed by Newman in his life. The three quarters which were conveyed, have been disposed of. As to these quarters the defendants certainly stand on higher ground. They have the legal title, against which the complainant is setting upon equity, and the question is, whether the court will deprive them of that title, and if they will, upon what terms. In deciding this question, it is necessary to consider, on what ground the complainant stands. He had no concern in the contract, and as a party, he has no interest in it. He is pursuing the rights of Beam, in the character of a creditor, and any circumstances of hardship, in his own case, are not to be considered here. He stands in the shoes of Beam, and the case must be decided, as though Beam were the complainant praying for a specific execution of his contract. Viewed in this light the complainant must do equity before he can expect to receive it.

Whatever might have been the understanding of the parties, we find the defendants with the law on their side, and with an equity at least as strong as that of the complainant. The purchaser is insolvent, and the defendants must lose the purchase money if they are compelled to give up the title, which is the only plank on which their hopes can rest. I do not know on what principle Beam can extort it from them, before he has complied with his part of the contract. It certainly was not the intention, or expectation of those concerned, that he should have the land without paying for it. If the title had remained in the vendor by mere accident, I could not hesitate to say that equity ought not to take it from him, till the contract is fulfilled. But in this case there is both positive and presumtive evidence that Newman relied on his title and retained as his security.

The third enquiry is, did the payment of $750, the sum named in the title bond, entitle the purchaser to a deed for the two quarters, before the whole of the purchase money due on the contract was paid. The counsel for the complainant have treated the case as though there were two contracts, one relating to the three quarters conveyed, and the other to the two quarters not conveyed, and on that ground they claim a right to the two quarters, because they alledge the purchase money for them has been paid in full. But they have certainly taken an incorrect view of the subject, for in the first place there is not any thing that indicates two contracts, and in the second place the most rational conclusion as to the payments is, that they were not made with reference to one portion of the land, more than another.