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Joseph Hoskins v. Pinkney Wall.
PeaRSON, C. J.
The only question in the case is, does the' defendant’s discharge in bankruptcy apply to the demand off the plaintiff? "We think it does.
The debt to the plaintiff is for the purchase'money of ther *250 .land. This, under tbe Constitution and tbe statute, rides over tbe homestead, and the execution, creditor can sell tbe land, the homestead to the contrary notwithstanding, provided he has an execution under which to sell. "When he •asks for a judgment and execution, he is met by the fact, ■“ the defendant is discharged by a decree in bankruptcy, which is pleaded in bar of the further prosecution of your .action.” How is this met ? The plaintiff says, “ I have a lien, or something akin to a lien, (as Mr. Gilmer termed it oh the argument), which the bankrupt proceedings are bound to respect.” That is the question ; What is a lien ? —A mortgage is an express lien. A docketed judgment is -a lien by statute, and any one wishing to be informed can :see for himself by looking at the books of the County. But in regard to obligations for the payment of the purchase •money, there is no- mode provided by which to give it notoriety. If a vendor makes a deed for the land instead of retaining the title as security, it is his folly. True, when he gets a judgment and issues execution, the homestead is not in his way. In that respect he is better off’ than other creditors, but he has acquired no lien, no “ hold ” on the land. .Suppose the vendee sells the land to one who knows it has not been paid for, the purchaser has a good title ; for the ■vendor can get no judgment against him, and a judgment against the vendee will not reach property that he has sold. So the vendor, although he has the notes given for the purchase money, has no lien — nothing “ that sticks ” like a mortgage or docketed judgment.
It follows that the defendant’s discharge in bankruptcy bars the plaintiff’s debt, and if he can get no judgment and ■execution, the homestead is not drawn in question.
Error. Judgment for defendant.
PER Curiam. Judgment reversed.