Mr. Chief Justice Marshall
delivered the opihion of the Court. The question to be'decided is, whether, under all the circumstances of this case, the New-England Mississippi Land Company, or Mary Gilman, shall lose the sum awarded by the commissioners to the Georgia Mississippi Company, in satisfaction for the lien that company was supposed to retain' on the lands they sold, for the non payment of the notes of William Wetmore, given for the purchase money on his interest in the purchase.
In examining this question, the nature of the contract, the motives of the New-England Mississippi Company, and their acts, are all to be considered.
The contract was made in January,- 1796, for 11,380,000.acres of land, lying within the country occupied by the Indians, whose title was hot extinguished. The purchase money, amounting to 1,380,000 dollars, was to be divided into live instalments, the first of,which, amounting to 113,800 dollars, was to . lie paid on the 1st of May, 1796, and the last on the 1st of May, 1799. It is obvious, that this purchase could not have been made with a view to hold all the lands. The object of the purchasers must hpve been to make a profit by re.-seljing a great part of them. Accordingly, we find them making immediate arrangements to effect .this"object. In February, 1796, before the legal title was obtained, the purchasers formed an association, by which it was, among other things, agreed, that the land .should be conveyed to three of their partners, Leonard Jarvis, Henry Newman, and William Wetmore, for tile use . and benefit of the company. It was. also agreed, that seven directors should be appointed, with power to manage their affairs, and, after the company should be completely organized, as prescribed in the articles of association, to sell their lands for the common benefit of the proprietors. In addition to this mode of selling the lands themselves, which might be slow in its operation, it was agreed that each proprietor might transfer his interest, in whole oi in part.: and, to-facili-
tate this transfer, the whole purchase was divided into 2276 shares, and it was determined that an assignable • /. iiii 1 1 • certificate should be granted to each proprietor, or to such person as he should appoint, stating the amount of his interest in the company. No certificate was . to issue for less than one share.
It is of great importance to inquire, how far the company pledged itself to the assignee of this certificate; and how far it was incumbent on him to look beyond the certificate itself, in order to ascertain the interest which it gave him in the property of the company. !
In pursuing this inquiry, we must look with some minuteness into the state of the property, and the articles of association, as well as into the language of the paper which was to evidence the title Of the holder.
Although the association yvas formed before the lands were conveyed, no certificate was to issue until the legal title in the company should be as complete as it could be made. It was obviously necessary for the purchasers, before they proceeded to sell, to examine well their title, and to use every precaution which prudence could suggest, for its security. This appears to have been done. On the 13th of February, 1796, a. deed was executed by. the Geofgiá .Company, purporting, to convey the lands to . Willia& .Wetmore, Leonard Jarvis, and Henry Newsman ; and, afterwards, in February, 1797, a deed of confirmation was executed and delivered. By these deéds the Georgia Company certainly, intended to pass, and the New-England Company expected to receive, the legal title.
- The articles of association direct these trustees to convey the purchased lands to the proprietors, as tenants in common, who are immediately to re-convey them to Leonard Jarvis, Henry Newman; and William Hall, in trust, to be disposed of. according to the articles.
The certificate granted to each proprietor, for the purpose of enabling him to dispose of his interest, certifies, that he is entitled'to the trust and benefit of á certain specified proportion of the property contained in the trust deed, " to hold said proportion, or share, to him, his heirs, executors, administrators, and assigns, according to the terms, conditions, covenants, and exceptions, contained in the said deed of trust, and in certain articles of agreement entered into by the persons composing. the New-England Mississippi Land Company." This certificate purports on its face to be transferrable by endorsement. If it amount-. ed to no more than a declaration, that the holder had a right to sell a specified part of the common property, it would be difficult to maintain that the company, could afterwards charge this part exclusively with á pre-existing incumbrance. But the certificate proceeds further, and declares that the share, or shares, thus Tranferred, shall be held according to the terms, Sic. of the deed of trust, and of the articles of agreement. So far, therefore, as that, deed, Or those articles, encumber the property, it certainly remains encumbered in the hands of the assignee. To what extent does either of those instruments affect the case ?
The deed from the proprietors to Jarvis, Newman, and Hull, recites the grant of the State of Georgia, the conveyance of the grantees to Wet-more, Jarvis, and Newman, in trust for the New-England Company, the conveyance of those trustees to the members of the company to hold as tenants in common, according to their respective interests, and adds, that it is found necessary and expedient, that the premises should be conveyed "in trust to Leonard Jarvis, Henry Newman, and William Hull, Esquires, to have and to hold the same, subject to all the trusts, provisions, restrictions, covenants, and agreements, contained in certain articles of agreement, constituting the New-England Mississippi Land Companytherefore, and in consideration of 10 dollars, the parties of the first part, severally " remise, release, and forever quit claim, to the said Jarvis, Newman, and Hull, all the interest, &c. which they have, or ever had, or of right ought to have, in the premises, subject, however, to and for the purposes mentioned in the agreement constituting the . New-England Mississippi Land Company. The parties of the first part, each for himself," and no further, covenants, that the premises are free and; clear of all incumbrances, by him made or suffered to he made, and warrants the same against himself and all claiming under him.
A separate conveyance was made by Wetmore, Jarvis,.and'Newman, to John Peck, who conveyed to Jarvis, Newman, and Hull. But these conveyances are not supposed to vary the case.
In this deed of trust, each proprietor covenants for his own title, not for that of his co-partners; This has been supposed to give notice to the assignee of each certificate issued by the. company, that the property conveyed did not constitute a common stock in the hands of the trustees, put of which each holder was to draw iq proportion to his interest, as expressed in the face of his title paper; but that the interest of each co-partner was limited to the product of his own share, as under the original purchase, and that the holder of every certificate was bpund to trace his title through the particular original purchaser under Whom he claims, and in whose place he stands.
. , We do not think the fact will sustain the argument.
This, déed conveys the estate of each partner to the company, and the covenants it contains ascertain thp extent of each partner's liability for the title it passes. ' The lands thus conveyed, are held by the company in like manner as if they had been conveyed by persons who Were not members of it.. The legal title is in the company; the power to sell is in the company ; and if it was intended that the right of each individual to dispose of his interest, should depend on the validity of the title he had made, and that thé purchaser of such interest took it subject to any incumbrance with which the estate conveyed might have been búrthened, previous, to its conveyance, it would have been unnecessary to make any provision respecting the ¡sale of such interest. The right of sale is connected with the right of property, and without any regulation whatever, each member would have possessed it to the extent of his property. The object for granting the certificate seems to have been, to, enable each share-holder to sell, unobstructed by those entangling embarrassments 'which may attend a.mere equitable title. This object, in which every member was equally concerned, could not be effected without giving to each some evidence of his title, which should make it unnecessary for the purchaser to look further, in order to ascertain his interest in the general fund( whatever that fund might be. The history of the title, as well as the words of the certificate, would confirm this opinion. From its origin, every step of its progress was marked out and controlled by the company. The legal title was, by their order, conveyed to three persons, selected by themselves, and the deed contains no allusion to the interest of other purchasers. By this order, also, the title which was then made to the several purchasers, was immediately re-conveyed to trustees in whom the company confided, to uses and purposes expressed in certain articles of agreement which the company had formed. They guarded the title against incumbrances from individuals, and this watchfulness was for the double purpose of enabling their agents to sell the lands themselves, for the- common benefit, and enabling each member to sell to the best advantage his particular interest in that fund. It was scarcely possible for any individual to have encumbered the title after it was received by the first agents of the company, and against defects in the title conveyed fey the Georgia Company, the certificate does not profess to engage.
The articles of agreement, to which also the certificate refers, explain fully the views of the company. The great object of the association is to sell their lands to advantage. This is too plainly expressed to be mistaken. The words " terms, conditions, covenants, and exceptions," contained in the certificate, refer chiefly to provisions respecting,.the sale of lands, and to others Which recognize the absolute control over' the property which each member had ceded to the whole body: It is unnecessary to
recite the particular articles which tend to this general result. It is the spirit which pervades the whole association. Only those articles which relate to the " certificate need be adverted to.
The 11th article divides the whole purchase into 2,276 shares.
' The 12th directs that a transferable certificate shall be given to each proprietor, prescribes its form, dirécts it to bé recorded, and declares that it shall be complete evidence to such person, of his fight in the purchase. Nóassignee is admitted as a member, to vote in the affairs of the company, until his assignment shall be fecorded.
The 13th declares, that no certificate shall issue for less than one share, and that the .holder of any certificate for ,a larger quantity, may, at any time, surrender it to the trustees, and take out others for such quantities as he may choose.
The 16th obliges .the directors to pay over to; the
respective proprietors their proportions of the moneys received from anv and every sale, as soon after the receipt thereof as may be.
It is not more apparent, that the general object of the association was to promote the sale of'their lands, than it is that the particular object of this certificate, and of the articles which relate to it, was to enable every proprietor to avail himself of his individual interest; and to bring it into circulation. On no other principle can we account for subdividing the stock of the company into such small shares ; for issuing the certificate itself; for making it assignable ; for declaring that it shall be complete evidence of title to that quantity of interest which is expressed on its face ; for enabling every holder, by surrendering his certificate, to divide it as his convenience might suggest; and for 'declaring that each holder shall receive his proportion of the money arising from the lands which might be sold. All these provisions tend directly to the same object, and are calculated for the single purpose of affording to each member of the company every possible facility in selling his share of the stock. In this operation all were equally interested. Every member of the company was alike concerned in removing every obstruction to the free circulation of his own certificate, which could only be done by making it complete evidence of title; an advantage which, to be acquired by him, must be extended to all, In the particular benefit accruing to each member of the company from this arrangement, a full consideration was received for his joining in it. It is a mutual assurance, in which all the members pledge themselves for each, that he is really entitled to sell what he offers for salé.
The articles of agreement then strengthen, instead of weakening, the language of the certificate. They prove that the company must have intended to give it all the credit they could bestow on it, and to give to the assignee all the assurance they could give him, that he would stand on the same ground with other members, and was liable to no casualty to which they were not. all exposed. .
It was scarcely possible for afiy member, unless it be one of the original agents, to have eluded the precautions of the company, and have parted with, or encumbered any portion of his estate. But suppose the fact to have happened, and a certificate to have issued from any accident whatever, to him for a larger, interest than that to which he was really entitled, would an. assignee, without notice, have been affected-by this error on the part of the company ?
We think it clear, that he would not. The company has itself undertaken to judge of his title ; and, for its ovvn. purposes, for the advantage of all its members, to certify what that title is. The object and effect of that certificate is to stop inquiry. The company has pledged its faith, that the title under this certificate, shall not be questioned. This is not all. The articles require that an assignee shall have his assignment recorded. Here, is a second confirmation oftitle.
We find a number of persons associated together for .the. purpose of purchasing an immense body of land, which ttiey expect to resell upon a profit. They watch the progress of the title, direct its course, leave no power to individuals over their individual shares, but keep the whole under the control of the company until they, are perfectly satisfied with the state in which they have placed it. The legal title is by their order vested in three trustees, who are to be controlled by seven directors. Then, in order to enable each proprietor to dispose of any portion of his interest which he may incline to sell, assignable certificates are issued, declaring that the holder is entitled to a specified share of the land. This certificate refers to certain laws of the company, and these laws declare that such certificate shall be complete evidence of title, that the assignee shall become a member of the company, authorized to vote on having his assignment recorded in books kept for that purpose. These certificates are offered to the public; confiding to the promise they contain, an individual becomes a purchaser, has his assignment , recorded, and is received, without -''bjection, as a member. If any latent defect exists in the title of one of the original purchasers, which was unknown to the company when the certificate issued, we think the company cannot set up this latent defect against an assignee. The Company possessed the means of obtaining full information of all circumstances which could affect the title, so far as information was attainable. . They undertook to judge of it, and to assert unconditionally, that the holder of the certificate was entitled to the quantity of interest it specified- However true it may be, that the individual in whose default this defect origi nated, might be held accountable for it, we cannot agree that the assignee stands in his place. The comPany which would set it up against him, has inquired into the title ; has, for its own purposes, assured him that it is perfect, and, upon the faith of this assurance, he has, purchased. Had he taken an equitable interest in trust, relying upon the faith o.f the vendor, his equity, it is conceded, would not be better than that bf The vendor; but he has relied upon the Company. He has mounted up to the source of the equitable title, and is there assured of its goodness. The Company can never be permitted to say, that being themselves mistaken, they have imposed innocently upon.him; and thát, therefore, they will throw the loss from themselves on him.
If, then, Mr. Wetmore had really, by any act of his,diminished the estate he carried, into the common stock,. and if the, deduction of his share from the sum awarded; to the company had béen proper, he1 would have been personally answerable to the Company for such diminution; but we do not think this liability passes with the certificate to his assignee without notice. . We do not think the Company could be permitted to assert against the assignee, the right they might ássert against Mr. Wetmore.
. But this is not a defect in the title itself created, voluntarily created, by Mr. Wetmore.^ It is a still weaker case on the part of the Company.'. A sum of money, equal to .the claim of the; plaintiff, has been awarded to the Georgia, instead of the New-England Company, by the Commissioners, under the idea that so much of the' original purchase money remained unpaid, and that a lien on the lands they sold was still retained by the Georgia Company. As this failure was on the part of Mr. Wetmore, the New-England Company claim the right of subjecting to this loss the shares of Mrs. Gilman, which were derived from certificates issued on the stock of Mr. Wetmore. On the párt of Mrs. Gilman it is contended, 1. That this lien did not exist; and, if it did, 2. That it affects her only as a member of the Company.
The Commissioners determined in favour of the lien, because they considered the New-England Company as holding only an equitable estate.
The deeds from the Georgia to the New-England * 0 0 Company certainly purport to pass¿ and were intended to pass, the legal title. . The only objection we have heard to their having the operation intended by the parties, is, that they were not record-ed, and that the legislature of Georgia passed an act which forbid their being recorded.
But by the laws of Georgia, a deed, though not recorded within the time prescribed by law, remains valid between the parties; and, were it even otherwise, it might well be doubted whether this deed would not retain all the validity it possessed when executed, since its being recorded is rendered impossible by act of law. Could it even be admitted that the deeds passed only an equitable estate, it might well be doubted, whether the Georgia Company, as plaintiffs in equity, could, under all the circumstances of this case, stand, on better ground than if their deed had operated as they intended it should operate.
But the Court considers the title at law as passing by the deeds to the New-England Company, and remaining with them, although those deeds were not recorded. If this opinion be correct, even admitting the law of England respecting the lien of vendors for the purchase, money after the execution of a. deed to be the law of Georgia, a point which we do not mean to decide, we think it perfectly clear that no lien was retained, and none in-_ _ . _ . . tended to be retained, in this case.
It must have been well known to the Georgia Company, that the purchase was made for the purpose of reselling the lands; and, of consequence, that it was of great importance to the purchasers to have a clear unincumbered title; and the event that the property might pass into other hands before the whole purchase money was paid, was not improbable.
In the original agreement, an express stipulation is made that the property shall remain liable for the first payment, but that separate securities shall be taken for the residue of the purchase money.
The deed itself remains an escrow until the first payment shall be made, and is then to be delivered A ^ ' ; as the deed of the parties: after which the vendors Gonsent to rely on the several notes of the respective purchasers. This is equivalent to a mortgage of the premises, to secure the first payment, and a consent to rely on the separate notes of the purchasers for the residue of the purchase money. The express! contract, that the lien shall be retained to a specified extent* is equivalent to a waiver of that lien to any greater extent.
The notes, too, for which the vendors stipulated, are to be endorsed- by persons approved by themselves. This is a collateral security, on which they / , . ' relied, and which discharges-any implied lien on the land itself for the purchase money.
We think this, on principles of English law, a clear case of exemption from lien.
Could this be doubted, it would not alter the obligation of the New-England Company, to Mrs. Gil-man. If they were in the situation of purchasers with notice, it must be with a very ill grace that they set up against her particular interest, after having induced her to purchase by the assurance that she came into the Company on equal terms. If they were purchasers without notice, the lien is gone.
We are unanimously of opinion, that the sum deducted from the claim of the New-England Company, by the commissioners, is chargeable on the fund generally, not on the share of Mrs. Gilman particularly.
Some doubt was entertained on the question, whether Mrs. Gilman should recover from the parties to th'i's suit, her proportion of the money received by them, or her proportion after deducting therefrom,, the sum. she would be entitled to receive from those members, who obtained an order from the commissioners, by which they received directly, and not through the agents of the Company, the sums to which they were entitled. The majority of the Court directs me to say, that in this respect also, the decree is right, and that the Company^ or their agents, have the right to proceed agáint those members for what they have received beyond their just proportion of the whole sum awarded to the Company.
Decree affirmed, with costs.
This subject of lien for -unpaid purchase money, is so jfully discussed in the opinion of the Court below in this case, that the following extract from that opinion, in Mr. Mason's Reports, may be useful to the reader.
" The doctrine, that a lien exists on the land for the pur- ( chase money, which lies at the foundation of the decision of the commissioners, as well as-of the present defence, deserves a. very deliberate consideration.- It can. hardly be doubted, that this doctrine was borrowed from the text of the civil law;* and though it may now be considered as settled, as between the vendor, and the vendee, and all claiming under the latter with notice of the non-payment of the purchase money, yet its establishment may be referred to a comparatively recent period. Lord Eldon has given us an historical review of all the cases, in Mackreth v. Symmons, 15 Vez. 29. from which be deduces the following inferences. First, That, generally speaking, there is such a lien. Secondly, That in those general cases, in which there would be a lien, as between vendor and vendee, the vendor will have the lied against .a third-person, who had notice, that the money was not paid. These two points, he adds, seem to be clearly settled ; and the same, conclusion has been adopted by a very learned chancellor of our ovvn country. Garson v. Green, 1 Johns. Ch. Rep. 308. The rule, however, is manifestly founded oA a supposed conformity with the intentions of the parties, upon which the law raises an implied contract , and therefore it is not inflexible, but ceases to act, where the circumstances of the case do not justify such a conclusion. What circumstances shall have such an effect, seems indeed to be matter of a good deal of delicacy ' and difficulty; and the difficulty is by no means lessened by the subtleUloubts and distinctions of recent authorities. It seems indeed to be established, that prima facie the purchase money is a lien on the land ; and it lies on the purchaser to show, that, the vendor agreed -to. waive it; (Hughes v. Kearney, 1 Sch. & Lef. 132. Mackreth v. Symmons, 15 Vez. 329. Garson v. Green, 1 Johns. Ch. Rep. 308.;) and a receipt for the purchase money, endorsed upon the conveyance, is not sufficient to repel this presumption of law. But how far the taking a distinct security for the purchase money shall be held to be a waiver-of the implied lien, has been a vexed question.
* " Quod vendidi non alitor acpipientis qu.um si aut pretium nobis solutum sit, aut satis eo nomine factum, ve! etiam fidem habuerimus empiori sine ulla satisfactions." Dig. Lib. 18. lit. 1. l. 19. — Domat. lib. 1. tit. 2. & 3. l. 1. But this lien was lost, by the civil law, not only by taking a separate security from the purchaser, as a surety or pledge, &c, but also, by giving a term of credit to him. For Justinian, after laying down the rule in the Institutes thus, " Venditas vero res et1 traditse, non aliter emptori acquiruntur, quam si is venditori pretium solvent, vel' alio modio ei satisfeoerit, veluti expromissore aut pignore dato:" ¡c. adds, "sed si is qui vemiid.il fidem emptoris sequutus fuerit, dicendum est slalim rem emptaris fieri." Inst. l. 2. t. I. De Rerum Divis. s. 41. Pothier, De Vente, No. 322, 323 Pothier's Pandects, Tom. 3. p. 107.
There is a pretty strong, if not decisive current of authority, • to lead us to the conclusion, that merely taking the bond, or note, or covenant of the vendee himself, for the purchase money, will not repel the lien ; for it may be taken to countervail the receipt of the payment usually endorsed on the conveyance. (Hughes v. Kearney, 1 Sch. & Lef. 132. Nairn v. Prowse, 6 Vez. 752. Mackreth v. Symmons, 15 Vez. 329. Blackburn v. Gregson, 1 Bro. C. C. 420. Garson v. Green, 1 Johns. Ch. Rep. 308. Gibbons v. Baddall, 2 Eq. Cas. Abr. 682. Coppin v. Coppin, 2. P. Will. 291. Cases cited in Sugden on Vendors, ch. 12. p. 352, &c.) But where a-distinct and independent security is taken ¡ either of property or of the responsibility of third persons, it certainly admits of a very different consideration. There the rule mayproperly apply, that expressumfacit cessare taciturn; and where the party has carved out his 'own security, the law will not create. another in aid. This was . manifestly the opinion of Sir William Grant in a recent case ; where he asks, " If the security be totally distinct and independent, will it not then become a case of substitution for the lien, instead of a credit given because of the lien ?" And be then puts the case of a mortgage on another estate for the pur* chase money, .which he holds a discharge of the lien, and assérts, that the same rule must hold with, regard to any other pledge for the purchase money. Nairn v. Prowse, 6 Vez. 752. And the same doctrine was asserted in a. very early case, where a mortgage was taken for a part only of the purchase money, and a note for the residue. Bond v. Kent, 2 Vern. 281. Lord Eldon, with his characteristic inclination to doubt, has hesitated upon the extent of this doctrine. He seems to consider, that whether the taking of. a distinct security will have the effect of waiving the implied lien, depends altogether upon the- circumstances of each case, and that no rule can be laid down universally ; and that, therefore, it is impossible for any purchaser- to know, without the judgment of a Court, in what cases a lien would, and in what cases it would not, exist. His language is, " If, on the other hand, a rule has prevailed, (as it seems to me,) that it is to depend, not upon the circumstance of taking a security, but upon the nature of the security, as amounting to evidence, (as it is sometimes called,) or to declaration plain, or manifest'intention, (the expression used on other occasions,) of a purpose to rely not any longer upon the estate, but upon the personal credit of the individual; it is •obvious, that a purchaser taking a security, unless by evidence, manifest intention, or declaration plain, he shows his purpose, cannot know the situation in which he stands, without the judgment of a Court, how far that security does contain the evidence, manifest' intention, or declaration plain upon that point." Mackreth v. Symmons, 15 Vez. 329. 342. Austin v. Halsey, 6 Ves. jr. 475.
If indeed this be the state of the law upon this subject, it is reduced to a.most distressing uncertainty. But, on a careful examination of all the authorities, I do, not find a single case, in which it has been held, if the vendor takes-a personal collateral security, binding others as well as the vendee, as, for instance, a bond or note with a surety or an endorser, or a collaterial security by way of pledge or mortgage, that under such circumstances a lien exists on the land itself. The only case, that looks that way, is Elliot v. Edwards, 3 Bos. & Pull. 181; Where, as Lord Eldon says, the point-was not decided ; and it was certainly a case depending upon its own peculiar circumstances, where the surety himself might seem to have stipulated for the lien, by requiring a covenant against an assignment of the premises, without the joint consent of himself and the vendor. Lord Redesdale, too, has thrown out an intimation, Hughes v. Kearney, 1 Sch. & Lef. 132., that it must appear, that the vendor relied on it as security; and he puts the case,. " Suppose bills given as part of the purchase money, and suppose them drawn on an insolvent house, shall the acceptance of such bills discharge the vendor's lien ? They are taken not as a security, but as a mode of payment." In my humble judgment, this is begging the whole quéstion. If, upon the contract of purchase, the money is to be paid in cash, and bills of exchange are.afterwards taken in payment, which turn out unproductive, there the receipt of the bills may be considered as a mere mode of payment.. But if the original contract is, that the purchase money shall be paid at, a future day, and acceptances of third persons are to be taken for it, payable at such future day, or a bond with surety payable at such future day, I do not perceive how it is possible to assert, that the acceptances of bond are not relied on as security. It is sufficient, however, that the case was not then before his lordship ; and that he admits, that taking a distinct security would be a waiver of the lien. On the other hand, there are several cases in which it is laid down, that if other security be taken, the implied lien on the land is gone. To this effect certainly the case of Fawell v. Heelis, Amb. R. 724. S. C. — 2 Dick. 486. is an authority, however it may, on its own circumstances, have been' shaken ; and the doctrine is explicitly asserted and acted upon in Nairn v. Prowse, 6 Ves. jr. 762. See, also, Bond v. Kent, 2 Vern. 381. In our own country, a very venerable judge of equity has recognized the same doctrine. He says, " The doctrine that the vendor, of land, not taking a security, nor making a conveyance, retains a lien upon the property, is so well settled as to be received as a maxim. Even if he hath maue a conveyance, yet he may pursue the land in the possession of the vendee, or of a purchaser with notice. But i£he hath taken a security, or the vendee hath sold to a third person without notice, the lien is lost. Cole v. Scott. 2 Wash. Rep. 141. Looking to the principle> upon which the original doctrine of lien is established, I have no hesitation to declare, that taking the security of a third person for the purchase money, ought to be held á complete waiver of any lien upon the land ; and that, in a case standing upon such a fact, it would be very difficult to bring my mind to a different conclusion. At all events, it is prima facie evidence of a.Waiver, and the onus is on the vendor to prove, by the most cogent and irresistible circumstances, that it ought not to have that effect.
. Such was the result of my judgment upon an examination of the authorities, when a very recent case before the Master of the Rolls.first came to my knowledge. I have perused it with great attention, and it has not, in any degree, shaken my opinion. The case there was of acceptances of the yendee, and of his partner in trade, taken for the payment of the purchase money. It was admitted, that there was n'p case of a security given by a third person, in which the lien had been held to exist. But the Master of the Rolls, without deciding what would be the effect of a security, properly so denominated, of a third person, held, in conformity to the opinion of Lord Redesdale, that bills of exchange were merely a mode of payment, and not a security. This conclusion he drew from the nature of such bills, considering them as mere orders on the acceptor to pay the money of the drawer to the payee; and that the acceptor was to be considered, not as a surety for the debt of another, but as paying the debt out of the debtor's funds in his hánds. Grant v. Mills, 2 Ves. Beames' Rep. 306. With this Conclusion .of the Master of the Rolls, I confess myself not sa-. tisfied, and desire to reserve myself for the case, when it shall arise in judgment^ It is founded on very artificial reasoning, and not always supported in point of fact by the practice of the 'commercial world. The distinction, however, on which it proceeds, admits, by a very strong implication, that the security of a third person would repel the .lien. If, indeed, the point were hew,' there would be much reason to contend, :that a distinct sé? curity of the party himself would extinguish the lien on the land, as it certainly does the lien upon personal chattels. (Cowell v. Simpson, 16 Ves. jr. 276.) In applying the doctrine to the facts of the present case, I confess, that I have no difficulty in pronouncing against the existence of a lien for the unpaid part of the' purchase money. The property was a large mass of unsettled and uncultivated lands, to which the Indian title was pot as yet extinguished. It was, in the necessary contemplation of all- parties, bought on speculation, to be sold out to sub-purchasers, and ultimately to settlers. The great objects of the speculation would be materially impaired and embarrassed by any latent incumbrance,.the nature and extent of which it might not always be easy to ascertain, and which might, by a subdivision-of the property, be apportioned upon an almost infinite number of .purchasers. It is not supposable, that so obvious a consideration should not have been within the view of the parties ; and, viewing it, it is very difficult to suppose they could mean to create such an incumbrance. A distinct and independent security Was taken by negotiable notes, payable at a future day. There is no pretence, that the notes were a mere mode of payment, for the endorsers were, by the theory of the law, and, in fact, conditional sureties for the payment; and in this respect the case is distinguishable from that of receiving •bills of exchange, where, by the theory of the law, the acceptor is not a surety, but merely pays the money of the drawer, in pursuance of his order. (Hughes v. Kearney, 1 Sch. Lef. 132. — Grant v. Mills, 2 Ves. Beames' Rep. 306.) The seou.serities themselves were, from their negotiable nature, capable of being turned immediately into cash, and in their transfer from hand to hand, they could never have been supposed to draw after them, in favour of the holder, a lien on the land for their payment. But I pass over these,- and some other peculiar circumstances of this case, and put it upon the broad and general doctrine, that here was the security of a third person, taken as" such, and that extinguished any implied lien for the purchase money." (1 Mason's Rep. 212.)