#### *Cox &c. v. Romine.

July Term, 1852,

Lewisburg.

(Absent Daniel and Lee,* Js.)

Sale of Land — Bonds—Assignment of — Priority† —Case at Bar. — A sells and "conveys land to M, and takes bonds for the purchase money, retaining the vend- or’s lien, one of which bonds he assigns to B. M sells part of the land to C, and before he conveys, it is agreed between M, 0 and B, that C shall execute his bond to R in lieu of the bond of M assigned to B by A, and that R shall retain his lien on the land. Before M conveys to C, C by a contract in writing, sells the laud to McW, who pays a part of the purchase money to O, without notice of B’s lien. There is a conveyance by M to G, but no conveyance by O to McW. R flies a bill against C and McW, to subject the laud to the satisfaction of his debt. Held :

1st. Same — Same—Same—Same—Intention of Parties. —That R had a lien upon the land in the possession of C; as such was the intention of the parties.

2d. Same — Same —Same — Secret Liens — Bona Fide Purchasers. — But though it is a general rule that between equities, equal in all other respects, the elder shall be preferred, yet B’s lien being secret, and McW having been permitted to take possession of the property, to hold it for a time, and make payments for it without notice, his equity shall be preferred; and the land shall only be liable to the extent of the purchase money unpaid at the time McW received notice of B’s lien.

3d. Same — Same—Same.—Quaere: If B would have had a lien upon the land in the hands of 0, in the absence of evidence that such was the intention of the parties.

This was a bill filed in the Circuit court of Lewis county by Jacob Romine against Philp Cox jr. and John McWhorter, to subject land in the possession of the latter to the satisfaction of a bond executed to the plaintiff by Philip Cox jr. for the purchase money of the land in the possession of Mc-Whorter; which land Cox had purchased of Hugh McQuain, and by an arrangement between them gave his bond to Romine. The facts are stated by Judge Samuels in his opinion. *There was a decree *27in favor of the plaintiff subjecting the land, to the payment of the debt; and from that decree Cox and McWhorter applied to this court for an appeal, which was allowed.

Price, for the appellants.

There was no counsel for the appellee.

*

Judge Lee had been counsel in the court below.

†

Sale of Land — Bonds—Assignment of — Secret Liens— Bona Fide Purchasers. — See on this subject, the principal case cited in Briscoe v. Ashby, 24 Gratt. 481, and *note.*See also, citing the principal case, Yancey v. Blakemore, 95 Va. 268, 28 S. E. Rep. 236; Lough v. Michael, 37 W. Va. 679, 17 S. E. Rep. 470, dissenting opinion.

In Hoult v. Donahue, 21 W. Va. 300, it is said: “He who buys an equitable title in ignorance of its nature, and under the belief that he is getting a good legal title, may, therefore, protect himself, by getting in the legal title, even where the effect is wholly to exclude equities prior to his own. Baggarly v. Gaither, 2 Jones Eq. 80; Boone v. Chiles, 10 Pet. 177; Williamson v. Gordon, 5 Munf. 257; The Mutual Assur. So. v. Stone, 3 Leigh 218; *Cox*v. Romine, *9 Gratt. 27;*Bayley v. Greenleaf, 7 Wheat. 46; Camden v. Harris, 15 W. Va. 554.”

SAMUELS, J.

It appears in the record, that Arnold sold to McQuain a tract of land, on credit, taking bonds for the price, payable in installments, for which the vendor’s implied lien was kept in existence: That one of these bonds for the purchase money was assigned by Arnold to Romine, who, of course, succeeded to Arnold’s right to charge the amount of the bond on the land in the hands of the vendee. McQuain sold to Cox a part of the land bought of Arnold, for the price of 255 dollars 26 cents, the amount of principal and interest due on the bond held by Romine. By an arrangement between McQuain, Cox and Romine, Cox executed his bond to Romine for the price agreed on: This was done before Cox received his conveyance from McQuain. In this bond it is stated to have been given for the purchase money of land therein described, which is sufficiently identified with the land bought of McQuain. It appears with sufficient clearness, that Romine and Cox intended to preserve the lien upon the land for this debt. After Cox had contracted with McQuain for the purchase, and before McQuain had made any conveyance to him, Cox contracted in writing to sell the land to McWhorter for 500 dollars, and put him in possession.

Although Cox has since received a deed from McQuain, it does not appear that he has conveyed to McWhorter. In this state of things Romine filed a bill against Cox and McWhorter, asserting that a lien on the land exists for the purchase money, and seeking to enforce it. ^Without expressing any opinion on the question, whether a lien may be implied, in a case a vendee gives a bond for purchase money, to a person not standing in the relation of vendor, without anything to show that such was the intention of the parties; yet in this case as the bond assigned by Arnold to Romine was a lien, and as the bond executed by Cox to Romine was given in lieu of that bond, and contains a recital from which we must infer that the lien was intended to exist, I am of opinion that as between Romine and Cox the lien is in full force.

McWhorter, who is in possession, defends himself against Romine’s claim, upon the ground that he made his contract with Cox and paid him a large portion of the purchase money, without notice of the lien: Thus the question is presented whether the lieu held by Romine or the equitable title held by McWhorter shall prevail.

It may be laid down as a general rule, that between mere equities, equal in all other respects, the elder shall prevail. If however the junior claimant shall have an advantage at law, or superior equity, such party shall prevail. See the cases referred to, 2 White and Tudor’s Leading Cases, p. 1; Moore v. Holcombe, 3 Leigh 597; Judge Cabell’s opinion in Doswell v. Buchanan’s ex’ors, 3 Leigh 365; Bayley v. Greenleaf, 7 Peters’ R. 46. Considering the secret nature of Romine’s lien; that McWhorter was permitted to take possession of the property, hold it for a time and make payments for it without notice of that lien, I am of opinion his equitable title should prevail over Romine’s lien, to the extent of the payments made without notice. This I deem right notwithstanding the case of Beirne’s ex’ors v. Campbell, 4 Gratt. 125, which *seems to*decide otherwise.

Obvious considerations require that all liens or conveyances concerning real property, shall be recorded. *Purchasers, relying upon the records for information, may be misled and defrauded if the secret and unknown liens or conveyances may be set up to their prejudice, after fairly paying money for their purchases ; nor is the injury the less because they may have only equitable titles.

In our case it is not likely that any degree of diligence would have apprised McWhorter of Romine’s lien. He could reasonably be expected to make enquiry only of such persons as were mentioned in the title papers for the land. Romine who is not mentioned therein should have taken care to have his lien recorded, or to have given notice thereof; and the consequences of his omission should rest upon himself rather than upon McWhorter. I am thus led to the conclusion that the Circuit court erred in giving Romine a preference over Mc-Whorter for his whole debt, instead of so much as McWhorter owed Cox when first notified of the lien.

The decree should be reversed with costs, and the cause sent back to the Circuit court; that it be referred to a commissioner to ascertain in what amount McWhorter was indebted for the purchase when notified of Romine’s lien, and the land held liable for that amount only.

The other judges concurred in the opinion of Samuels, J.