man, the land which is the subject of this suit, which he afterwards sold to James Greenleaf, to whom the title was made by Worman. A bond was given by Greenleaf to Bayley for the purchase money, which, in March, 1796, was surrendered to Greenleaf on his accepting bills drawn in favour of Clement Biddle, for its amount. Some of these bills were alleged to be unpaid, and were produced by the plaintiffs. On the 30th day of September, 1796, James Greenleaf, being then greatly indebted, conveyed sundry estates, and among others, the land in controversy, to George Simson, in trust for the security of Edward Fox, who had entered into engagements for the said Greenleaf, to a very large amount. The deed was also made to secure the said Fox for any further advances he might make to, or engagements he might enter into, on account of the said Greenleaf. On the 23d of March, 1797, George Simpson conveyed this land to the defendants, Pratt, Francis and others, as trustees for the uses and purposes mention ed in the deed from Greenleaf to Simpson. On the 26th of June 1797, a general deed was made to the same persons by Robert Morris, John Nicholson, and the said James Greenleaf, conveying to them the property mentioned in the deeds of the 30th of September, 1796, and of the 23d of March, 1797, with an immense mass of other property, for the payment of debts to a very great amount due from the said M. N. and G. which were enumerated in the said deed. Some doubts having been entertained respecting the recording of these deeds, an attachment was sued 1822. Bayley V. Greenleaf. 1822. Bayley V. Greenleaf. Feb. 11th. out by the trustees against the said Greenleaf, in the county in which the said lands then lay, on which judgment was obtained ont he 8th of February, 1798; and on the 28th day of the same month the land was sold under the judgment, purchased in for the trustees, and afterwards conveyed to them to the same uses and trusts as had been expressed in the original conveyance by deed dated in 1803. In March, 1798, James Greenleaf took the benefit of the insolvent law of the State of Pennsylvania; and in November of the same year, he was also discharged under the insolvent law of the State of Maryland. In November 1803, he was declared a bankrupt under the laws of the United States. The plaintiff, William Bayley, also became a bankrupt under the laws of the United States in July, 1802. The trustees alleged they had contracted to sell the land in controversy to James Greenleaf; but that he had not paid the purchase money, in consequence of which they retained the legal title. This suit was brought in the year 1812, by William Bayley, and by James S. Morrell, as trusee for the creditors of the said Bayley, and executor of the original assignee of the bankrupt, who is dead. Mr. Law and Mr. Key, for the appellants, insisted that they had an equitable, subsisting, unwaived lien upon the land sold to the defendant, Greenleaf, for the amount of the purchase money. The law on the subject has been settled by a long and uniform current of decisions. The lien exists between vendor and vendee, and against subsequent purchasers from the vendee with notice that the money remains unpaid, unless the parties, by some unequivocal act, waive the lien." It may also be asserted against purchasers, coming in by act of law, as assignees of a bankrupt, and against creditors claiming under a conveyance for their benefit: they are considered as volunteers. Nor has the lien, in this case, been waived. Taking a covenant, bond, or note, is no waiver of the lien, if taken as a mode of payment, and not as a distinct security." Mr. Jones, contra, contended, that under the circumstances of the present case, the lien could not be asserted against creditors taking a bona fide conveyveyance from the vendee. This is not a case where the party comes in by operation of law. A creditor, who takes a conveyance for the security of his debt, stands in equal equity with one who pays his money, and is equally a purchaser. The dictum of Sugden on this subject is not supported by the adjudged cases in England, or in this country. Besides, the alleged debt due from Greenleaf to Bailey never attached any equitable lien to the land; Worman, and not Bailey, standing in the relation of vendor, and the true vendor being satisfied with the purchase money. Mr. Chief Justice MARSHALL delivered the opinion of the Court, and after stating the facts, proceeded as follows: a Brown v. Gilman, 4 Wheat. Rep. 255. and cases collected in note a. Ib. 292. 297. b Sugd. Vend. 364. and the cases there cited. 2 Madd. Ch. 105. Chapman v. Tanner, 1 Vern. 267. c Sugd. Vend. 353. 1 Sch. and Lefr. 105. 1822. Bayley V. Greenleaf. Feb. 18th 1822. Bayley V. Greenleaf. In opposition to the claim of the plaintiffs, it is alleged by the defendants, that the debt of Bayley has been discharged. As they have not succeeded in supporting this allegation, it will be necessary to inquire whether, in such a case as this, the plaintiffs can assert a lien on the land sold by Bayley to Greenleaf, for so much of the purchase money as remains due. It is contended for the defendants, that as the legal title to the estate was never in Bayley, he never had a lien upon it for the purchase money. Upon this point, some difference of opinion exists in the Court; and we pass it over without positively deciding it, for the purpose of inquiring, whether Bayley, supposing him entitled to the same rights as a vendor of the legal title, has now a lien on the estate for the purchase meney. That a vendor, who has taken no other security for the purchase money, retains a lien for it on the land as against the vendee, or his heirs, seems to be well settled by the English decisions. It is equally well settled, that this lien is defeated by an alienation to a purchaser without notice. How far it may be asserted against creditors, seems not so well settled, and constitutes the subject of inquiry in this case. The lien asserted by the vendor is not disclosed by any information given by a record. In Chapman v. Tanner, (1 Vern. 267.) the Lord Keeper said, "In this case there is a natural equity that the land should stand charged with so much of the purchase money as was not paid, and that without any special agreement for that purpose." In the case cited rom 1 Bro. Ch. Ca. 420. the Chancellor says, "A bar gain and sale must be for money paid, otherwise it is in trust for the bargainor. If an estate is sold, and no part of the money paid, the vendee is a trustee ; then if part be paid, is it not the same as to that which is unpaid?” But whether the lien of the vendor be established as "a natural equity," or from analogy to the principle that in a bargain and sale, the bargainor stands seised in trust for the bargainee unless the money be paid, still it is a secret invisible trust, known only to the vendor and vendee, and to those to whom it may be communicated in fact. To the world the vendec appears to hold the estate, devested of any trust whatever; and credit is given to him, in the confidence that the property is his own in equity, as well as law. A vendor relying upon this lien, ought to reduce it to a mortgage, so as to give notice of it to the world. If he does not, he is, in some degree, accessary to the fraud committed on the public, by an act which exhibits the vendee as the complete owner of an estate on which he claims a secret lien. It would seem inconsistent with the principles of equity, and with the general spirit of our laws, that such a lien should be set up in a Court of Chancery, to the exclusion of bona fide creditors. The Court would require cases in which this principle is expressly decided, before its correctness can be admitted. The counsel for the plaintiffs say, there are such cases; and cite the dictum of Sugden in his Law of Vendors, and the cases he quotes in support of the sition. po Mr. Sugden does indeed say, that persons coming 1822. Bayley V. Greenleaf. |