Nailor v. Fisk

Mr. Justice Handy delivered the opinion of the court. The appellee filed his bill in the superior court of chancery against the appellants, to have satisfaction of his vendor’s lien for the unpaid purchase-money of a tract of land sold and conveyed by him to the appellant, Jefferson Nailor, in the year 1S38, and for which no personal or other security was given. It appears that Mrs. Nailor, the wife of Jefferson Nailor, purchased the land by means of her own separate property, at sheriff’s sale, under a judgment rendered against Jefferson Nailor in May, 1839, her purchase being in September, 1841, and that she had notice that the purchase-money was due to the appellee and unpaid at the time of her purchase. She claims protection under that purchase, and also under a sale made by the tax collector in July, 1842, the purchase-money being paid out of her own funds, and the purchase made for her sole and separate use. The chancellor decreed the land subject to the lien, and ordered an account to be taken of the amount due, from which this appeal was taken. The title derived from the tax collector’s sale does not appear to be insisted on by the appellants, and in the manner in which it is presented in the record, it could not avail, as that sale was made before the passage of the act of 1843; and there is no evidence of the performance of those prerequisites that were essential to show a title under such a sale, before the passage of that act. But the appellants insist that as the appellee had conveyed the land to Jefferson Nailor, it became subject to the judgment [264] under which it was sold, and that the purchaser acquired a title discharged of the vendor’s lien. So far as the right of the judgment creditor to subject land under such circumstances to sale, in satisfaction of his judgment, and to obtain a title free from the incumbrance is concerned, there is much conflict between courts of very high authority. The supreme courts of the United States and of North Carolina hold that the lien of the vendor is in the nature of a secret trust, which, although it be preferred to any other subsequent equal equity, unconnected with a legal advantage, or equitable advantage which gives a superior claim to the legal estate, will be postponed to a subsequent equal equity connected with such advantage. Per Chief Justice Marshall in Bayley v. Greenleaf, 7 Wheat. 46; Johnson v. Cawthorn, 1 Dev. & Bat. 32; Harper v. Williams, Ib. 379; 3 Leigh, 597. And it would seem to follow that the vendor’s lien will not be sustained against the judgment lien, where the property is conveyed to the vendee. On the contrary, it is held by courts of high character, that the judgment charges only the actual interest of the judgment debtor, and that the equitable rights of third persons will be protected against the lien of the judgment; that the rule of protection to a purchaser applies to a party who comes in through the vendee and not under him, to one who purchases from the vendee by contract, and not to one who succeeds to his title by operation of law or purchase at legal sale. Kiested v. Avery, 4 Paige, 14, 15; 1 Story’s Eq. Jur. § 410, note; Aldridge v. Dunn, 7 Blackf. 249; 1 Paige, 125; and this view seems to have received the sanction of this court in Dunlap v. Burnett, 5 S. & M. 710; 7 Ib. 23. It is unnecessary to decide in the present case what will be the rule of this court upon this point. Plere it is fully admitted that the purchaser at sheriff’s sale had notice that the vendor’s lien upon the land was unsatisfied. And when the purchaser' has notice of the outstanding equity, there can be no pretence that he acquires the title discharged of that equity. He succeeds to the position of the defendant in the execution, and the purchase is presumed to have been made subject to the ac [265] knowledged and well-known charge, and the purchaser cannot complain that it is enforced against the property. The decree is affirmed.