APPEAL from the Circuit Court for the District of Columbia.
This suit was brought by the appellant in the Circuit Court, for the county of Washington, for the purpose of subjecting a tract of land, lying within that county, which was sold by the plaintiff, Bayley, to the defendant, Greenleaf, to the payment of so much of the purchase money as still remains due. It appeared by the proceedings in the cause that in the year 1792 William Bayley, purchased from William B. Worman, 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 mentioned 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 out by the trustees against the said Greenleaf, in the county in which the said lands then lay, on which judgment was obtained on the 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.a 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.b 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.c
Mr. Jones, contra, contended, that under the circumstances of the present case, the lien could not be asserted against creditors taking a bona fide conveyance 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: