#### *Hatcher’s Administrator, v. Hatcher’s Executors.

March, 1822.

Vendor’s Lien — Personal Security — Effect.*—A. purchases a tract of land and gives bonds with B. as his surety for the purchase money, but never takes a conveyance, nor pays the money. The vendor does not lose his lien upon the land, by haying taken personal security.

*30Same — Same—Rights of Surety,† — In. such case, the surety may go into a court of equity to subject the land to the payment of the debt, before he has been compelled to pay it himself.

Appeal from the superior court of chancery for the Richmond district.

John Curd and David Royster, executors of Thomas Hatcher deceased, filed their bill in the court of chancery, against John Guerrant junr. surviving executor of John Johnson deceased, Philip Johnson and others children and heirs of the said John Johnson, Thomas Miller and John Brown administrators of Gideon Hatcher deceased, Gideon Hatcher and others, children and grand-children of the said Gideon Hatcher deceased. The bill sets forth, that a certain John Johnson, about fifteen or twenty years ago, was seised and possessed of a tract of land in the county of Goochland: that he died and directed by his will all his lands to be sold and the money to be divided amongst his children and appointed John Guerrant junr. and William Webster his executors: that the said executors sold the land, in pursuance of the directions of the testator, and Gideon Hatcher became the purchaser, and gave a bond for the purchase money, with Thomas Hatcher as his surety: that no conveyance was ever made by the vendors of the said land; so that a lien is still retained by the representatives of the said Johnson, and the purchase money was never paid by Gideon Hatcher in his lifetime, nor by his representatives since his decease: that the estate of Gideon Hatcher is totally inadequate to the payment of the purchase money aforesaid; and they fear that *the estate of their testator will be compelled to satisfy the debt, without the interposition of the court of chancery. They therefore pray, that the land may be directed to be sold for the payment of the purchase money.

John Guerrant junr. as surviving executor of John Johnson deceased, filed his answer, stating, that he did, in conjunction with his co-executor, make sale at public auction of one of the tracts of land mentioned in his testator’s will: that Gideon Hatcher became a purchaser of a part of the said tract, and gave Thomas Hatcher as his surety, in six several bonds, payable in six equal annual instalments: that Gideon Hatcher, in his lifetime, paid off a part thereof, for which he has full credit with the respondent; leaving a balance due of £ , and no part of which has been since paid by his representatives: that he believes, no conveyance has been made to the said Gideon Hatcher in his lifetime, or to his representatives since his decease: that he coincides in opinion with the plaintiff that the said lands ought to be sold, and the money, arising therefrom, applied to the discharge of the balance due upon the said bonds: that he is therefore willing that a decree should be rendered for the sale ’of the said land, &c.

The administrators of Gideon Hatcher filed a general demurrer, together with an answer, to the bill, in which they alledged, that Thomas and Gideon Hatcher were brothers, of whom Thomas was the elder, and had much the larger portion of his father’s estate: that after the sale above mentioned, Gideon Hatcher moved on the premises and lived there until the time of his death which took place about the year 1807: that the appearance of Gideon Hatcher’s being the proprietor of the said land, gave'him a credit with the world: that in 1804, the said Gideon Hatcher became sheriff of the county, and by the default of his deputies in paying the revenue, a judgment was had against him by the commonwealth, in the sum of , and an execution was issued against the said land, which was taken by the coroner of the county, and sold; *but the sale was set aside for irregularity: that other executions were issued, and the land several times advertised for sale, but at length, after various impediments, the sale of the said land was forbidden, although, as the respondents believe, the executors of Johnson expressly disclaimed any lien on the land, until about the time that the sale was forbid: that in consequence of these transactions, the commonwealth, and the sureties of Gideon Hatcher as sheriff, are parties in interest in this case, and should be made parties to this suit: that the respondents believe, that they have fully administered _ all the personal assets of the said Gideon Hatcher, which ever came to hand, &c.

Decrees nisi were duly executed upon the defendants who had not answered.

Some years after this suit, actions at law were brought on five of the bonds above-mentioned, and judgments recovered against the executors of Thomas Hatcher deceased.

The chancellor made an interlocutory decree, that an account should be taken, before a commissioner of the court, of the administration of Gideon Hatcher’s estate. The . commissioner reported, that the assets in the hands of the administrators, amounted to $368.97 cents, and that there are unsatisfied judgments to a much *31larger amount, against the said estate. Whereupon, the chancellor decreed, that unless the defendants claiming under Gideon Hatcher, shall, within six months from the date of the decree, pay to the plaintiffs $1930.25 cents, with interest &c., the said defendants claiming under the said Gideon Hatcher, shall be forever barred of their equity of redemption in the said land; and the marshal of the court is directed to make sale thereof for ready money, &c.

From this decree, an appeal was taken to this court.

The case was argued by Upshur for the appellant, and Wickham, for the appellee.

*For the appellant it was said: 1st. That it was in general true, that where a vendor retains the legal title, he has a lien upon the land sold. But, this lien may be waived by various- acts, indicating the intention of the parties, that it should no longer exist. Taking bond and security is strong evidence that the vendor did not rely upon his lien; and ■when a great length of time is suffered to elapse, without the assertion of a title on the part bf the vendor, coupled with uninterrupted possession by the vendor, there is no room to doubt that the vendee has waived his lien. In this case, all these circumstances are found. More than twenty years have elapsed since the sale was made • to Gideon Hatcher. He has been in possession from that time until the sale under the commonwealth’s execution, when we first hear of a claim by the executors of Johnson. During all this period, he was suffered to remain the ostensible proprietor of the land and to obtain a credit with the world, on that supposition. By analogy to the case of mortgages, the equity of redemption would be barred by twenty years without any attempt to forclose.(a) If an actual mortgagee standing by, loses his right, how much stronger is this case, where Johnson had only an equitable mortgage? 2. The commonwealth ought to be made a party. She is a creditor, and ought not to lose her rights by the conduct of the executors of the appellee, in suffering an office judgment to go against them, without defence. 3. The decree ought not to have given relief beyond the. penalty of the bonds. 4. There is no proof that the bonds were executed for the purchase money.

On the part of the appellees, it was said that a surety stands in the place of the creditor, when he has paid money for his principal; (b) and by a well known rule of equity, he may guard himself against a future mischief, *by throwing the burthen at once on that fund where it must ultimately fall. If the executors of Johnson had a claim upon the land, and if the executors of T. Hatcher would have had the same lien upon paying the purchase money, a court of equity will subject the land in the first instance, and thus prevent a circuity of action. As to the lapse of time affording a presumption that the lien was abandoned, this presumption may be rebutted by circumstances; and the partial payments by Gideon Hatcher, from time to time, are amply sufficient to produce this effect. No evil has resulted to Gideon Hatcher by the appellees suffering judgments by default; since they had not paid the money, and judgments must inevitably have been obtained, if they had defended the suit. The executors of Johnson asserted their claim as soon as it could be done, by forbidding the sale under the commonwealth’s execution. There was no necessity for making the commonwealth a party, as there is no evidence of her claim, except the assertion of the appellant, which, being new matter, requires other proof. The claim of the appellees being prior in point of time to that of the commonwealth, ought to be first satisfied; and then, if any surplus should remain, the commonwealth may obtain satisfaction, according to the title which she may establish.

Judgments have been already obtained against the appellees, and the appellants ought unquestionably to indemnify their innocent sureties, although those judgments may exceed the penalty of the bonds.

Upsher, replied.

*

Vendor’s Lien — Personal Security — Effect.—J3efore the passage of the statute abolishing the vendor's lien when it was not expressly reserved in the deed, if a vendor took a bond with personal security and executed a deed for the land, he could not claim a vendor's lien on the land. But if he has not made a deed, the vendor does not lose his vendor’s lien on the land simply because he has taken personal security for the purchase money; and, in such a case, the surety would have a right to go into a court of eauity to subject the land to the payment of the debt; the retention of the legal title being vsatisfactory evidence that the vendor did not intend to rely solely on the personal obligations of the debtor, or on that of his security, to pay the purchase money. Warren v. Branch. 15 W. Va. 38, citing principal case; Wilson v. Graham, 5 Munf. 297; Dunlap v. Shanklin, 10 W. Va. 662. And in Day v. Hale, 22 Gratt. 163, it is said; “Before our statute, ch. 119, § 1, p. 567 oi the Code it was well settled, that a vendor who conveyed the land to the vendee had a lien upon it for the unpaid purchase money in the hands of the vendee, or a volunteer claiming under him, or purchasers for valuable consideration with notice. Where a conveyance is made now, by the statute, the lien is abolished, unless expressly reserved on the face of the con*30veyance. But when no conveyance is made, the case is not within the purview of the statute, and the law is the same as it was before the statute was enacted. And in such case it is well settled that the vendor has recourse upon the land, notwithstanding the vendee gave personal or other security for the purchase money, and notwithstanding the subsequent purchaser, or incumbrancer, had no notice that the purchase money or any part of it, was unpaid. Yancey v. Mauck, 15 Gratt. 300, citing *Hatcher v.*Hatcher, *1 Rand.*53; and Lewis v. Caperton, 8 Gratt. 148.” To the same effect, see the principal case cited in Stoner v. Harris, 81 Va. 461; Yancey v. Mauck. 15 Gratt. 307; Coles v. Withers, 33 Gratt. 193; *foot-note*to Yancey v. Mauck, 15 Gratt. 300; Findley v. Armstrong, 23 W. Va. 122, as recognizing and asserting the doctrine of the vendor’s lien, the principal case is cited in McCandlish v. Keen, 13 Gratt. 622.

Contract for Sale of Land — Specific Execution.— Where there is an unexecuted contract for the sale of land, the vendor may file a bill to have specific execution, and then have the land sold for the debt. To this effect, the principal case is cited in Yancey v. Mauck, 15 Gratt. 308. See monographic *note*on "Specific Performance” appended to Hanna v. Wilson, 3 Gratt. 243.

†

Principal and Surety — Rights of Surety — Subrogation. — It is a settled rule of law, that a surety is entitled to every remedy which the creditor has against the principal debtor, to enforce every security; in short, to stand completely in the place of the creditor. Tompkins v. Mitchell, 2 Rand. 429, citing principal case. In collecting the cases on substitution, Tucker, P.. in Powell v. White, 11 Leigh 332, cites the principal case.

(a)

 2 Bro. Pari Cas. 116. Lady Lanesborough’s case. Taylor v. Cole, 1 Mun. 351.

(b)

2 Call, 125. Eppes and al. v. Randolph.

JUDGE BROOKE,*

delivered the opinion of the court, that the decree of the chancellor should be affirmed. '

*

Jtjdgb Roane was absent from indisposition.