"When the vendor

55 Am. St. Rep. 555). The court say: has made a conveyance of land to the vendee, who has executed no written promise to pay the purchase price, the courts, while uniformly affording relief, are not very well agreed upon what precise ground the right is rested. In Dock Co. v. Leavitt, 54 N. Y. 35, the opinion is finally rested upon the conclusion that the recital of the deed accepted by the grantee, that he sealed the same, was proof of the fact that the grantee had sealed it by adopting as his seal the corporate seal of the grantor. There is, however, much in the opinion suggesting that in the absence of this recital the court would have decided that by accepting the conveyance the grantee was bound by estoppel to deny that the deed, as a written contract was his, though it was not signed by him. Mr. Bigelow, in his work on Estoppel, page 346, thus announces the rule: Nor will the grantee in a deed poll, having accepted the deed and estate, be permitted to deny his covenants, or that the seal is his, in an action on the covenants.' In Trotter v. Hughes, 12 N.Y. 74 (62 Am. Dec. 137), it was said that ‘the acceptance of a conveyance containing a statement that the grantee is to pay off an incumbrance binds him as effectually as though the deed had been inter partes, and had been executed by both grantor and grantee.' 'A covenant can only be created by deed, but it may be as well by deed poll as by indenture, for the covenantee's acceptance of the deed is such an assent to the agreement as will render it binding on him, but the party must be named in the deed poll.' Greenl. Cruise, c. 26, tit. 32, § 3. The following cases seem to rest upon this ground: Railroad Co. v. Remmy, 13 Ind. 518; Railroad Co. v. Pearce, 28 Ind. 502; Bowen v. Kurtz, 37 Iowa, 240; Crawford v. Edwards, 33 Mich. 354; Grove v. Hodges, 55 Pa. St. 504; Schmucker v. Sibert, 18 Kan. 104 (26 Am. Dec. 765); Hubbard v. Marshall, 50 Wis. 322 (6 N. W. Rep. 497); Long v. Bullard, 59 Ga. 358. Mr. Platt denies that an action of covenant should be maintained on a deed not sealed by the defendant, but admits that the contrary doctrine has been very generally received by the profession, and is perhaps too well established to be reversed. Platt Cov. 18. In Finley v. Simpson, 22 N. J. Law, 311, a very great number of authorities are cited in the briefs of counsel;

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and the court held that the action of covenant might be maintained upon such a deed, citing in support of its opinion Co. Litt. 231a, 231b, note 1; Shep. Touch. 177; 4 Cruise Dig. 393; 3 Com. Dig. "Covenant," (A1); 4 Com. Dig. ‘Faite,” (A 2); Id. (C2); Vin. Abr. "Condition,” (I.a2); Burnett v. Lynch, 5 Barn. & C. 589. In Lee v. Newman, 55 Miss. 365, Judge Chalmers, in delivering the opinion of the court, in a case not calling for a decision of the question, declared that there could be no recovery in personam against one who had accepted a conveyance by which it was stipulated that as a part of the purchase price he should pay a certain mortgage. The proceeding in that case was to charge the land, and it was not sought to fix a personal liability on the purchaser. The observations of Judge Chalmers would apply as well where the obligation was to pay the purchase price to the vendor as to a mortgagee; and a somewhat extended examination by us has failed to discover any instance in which it has been held that in no form of action could relief be afforded where the vendor has fully executed his contract, by conveying the land, and the vendee has accepted the land and entered into possession. In Massachusetts it has been held that the technical action of covenant cannot be maintained against the grantee, who has not signed the deed, but that assumpsit, for the nonperformance of the duty or obligation, may be brought. Goodwin v. Gilbert, 9 Mass.

510; Newell v. Hill, 2 Metc. (Mass.) 180; Dix v. Marcy, 116 Mass. 416; Locke v. Homer, 131 Mass. 93 (41 Am. Dec. 199). And such is probably the rule in New Hampshire, Burbank v. Pillsbury, 48 N. H. 475 (97 Am. Dec. 633); and Pennsylvania, Clark v. Martin, 49 Pa. St. 289."

Sec. 961. Enforcement of the payment of purchase money by foreclosure of land contract. In an executory contract for the sale of real estate, equity treats the vendor as the trustee of the purchaser, and the purchaser as the trustee of the purchase money for the vendor. This rule rests upon the doctrine that equity considers that done which ought to be done. In an executory contract for the sale of real estate, the title retained by the vendor is security for the payment of the unpaid purchase money. In such a contract the

vendor, upon default made by the vendee, may treat the contract as an ordinary real estate mortgage, and foreclose it as such. Where a suit is brought by a vendor to foreclose an ordinary contract for the sale of real estate as a mortgage, the character of the decree to be rendered must be determined by the particular facts and circumstances in the case and the equitable rights of the parties. Hendrix v. Barker, 49 Neb. 369 (68 N. W. Rep. 531).

Sec. 962.

Defenses to actions for purchase money. An action for purchase money cannot be defeated by showing that the description of land contained in the plaintiff's deed of conveyance was insufficient where he tenders a deed containing a sufficient description. Sanders v. Guille,

Tenn. (37 S. W. Rep. 999). Where a deed of conveyance for real estate is accepted by the grantee, and he takes possession under it, he cannot defeat a payment of the purchase money without showing an eviction, the surrender of possession to the owner of a paramount title, or some inconvenience or expense incurred on account of the defect in the title. Johnson v. Bedwell, 15 Ind. App. 236 (43 N. E. Rep. 246). Covenants of general warranty or for quiet enjoyment are essential and conclusively prospective. Therefore, in the absence of fraud or anything to overcome the presumption that the vendor of real property is able to respond in damages, a purchaser in possession under a deed with covenants of general warranty, who has neither been evicted nor disturbed in his possession or quiet enjoyment, cannot, by showing a mere defect in the title, defeat an action to recover a balance due on the purchase price. Price v. Hubbard, 8 S. Dak. 92 (65 N. W. Rep. 436). Partial failure of title is held not to be a defense to a suit upon notes given for the purchase of land, but it is different where the failure of title is complete. Bean v. Harrington, 88 Me. 460 (34 Atl. Rep. 268). The rights and liabilities of parties to a parol agreement for the conveyance of real property are not necessarily reciprocal. One who enters into possession of land under a parol promise by the owner to convey, the latter subsequently fully performing by the tender of a good and sufficient deed, may be liable in an action for the purchase price, although such possession

be not of itself such part performance as would entitle him to an action for specific performance of the contract. Stevens v. Harding, 48 Neb. 659 (67 N. W. Rep. 746).

Sec. 963. Vendor's lien-Creation and extent-Who may enforce. The rule which prevails in Alabama is that in the sale of land, where the purchase money or any part remains unpaid, the law presumes the existence of a vendor's lien unless the terms of the contract or the attending circumstances furnish satisfactory evidence that the parties did not intend to reserve the lien, and the burden is on him who asserts the waiver or nonexistence of the lien. McLean v. Smith, 108 Ala. 533 (18 So. Rep. 662). Although a vendee purchases under separate contracts two tracts of land from two people if they unite in one conveyance and warranty of both tracts to such vendee which specifies that four bonds have been given by the grantee to them for the unpaid money, two to each of them, and recites that the vendor's lien is hereby expressly retained upon the land conveyed, to secure the four bonds * * * given for deferred payments of purchase price," it is held that the lien of each vendor embraces all the lands conveyed, and not merely his interest therein. Patterson v. Grottoes Co., 93 Va. 578 (25 S. E. Rep. 602). A vendor's lien may be enforced by one who is not a grantor when good conscience demands a lien for the purchase money. Smith v. Mills, 145 Ind. 334 (44 N. E. Rep. 362). Unless reserved by a contract a vendor's lien cannot be enforced where land and other property are sold for a sum in gross. Griffin v. Byrd, 74 Miss. 32 (19 So. Rep. 717).

A

Sec. 964. Vendor's lien against married women. vendor's lien may be enforced against a married woman by the assignee of her note given for the purchase money, although such note be void so far as giving the right to a personal judgment against her. McClure v. Bigstaff, Ky.

(37 S. W. Rep. 294): The court say: "After a married woman has received a deed for land it may be subjected to the payment of the unpaid purchase money, for the reason that, as the contract has been executed whereby she has received the vendor's title to the land, she is estopped to deny

his right to subject the same to the payment of the purchase money."

Sec. 965. Vendor's lien-Rights of subsequent purchaser. The vendor's equitable lien for the purchase money of land having been abolished, the vendee of land to whom the same was absolutely conveyed by the vendor, the latter taking no mortgage or other security upon the land conveyed, could, before paying the purchase money, lawfully convey the land to another at any time before the purchase money debt had been reduced to judgment, or an attachment for the same had been actually levied upon the land; and this is true, although the effect of such conveyance might be to defeat the collection of the purchase money. Riggs v. Jones, 97 Ga. 420 (24 S. E. Rep. 165). Where one in possession of land makes an absolute conveyance of it, the presumption is that he did so on an adequate consideration, and unless there is some circumstance which indicates the contrary, persons may deal with the grantee on that supposition, and are not under obligations to inquire, and guard against a vendor's lien. Austen v. Pulschen, et al, 112 Cal. 528 (44 Pac. Rep. 788).

Sec. 966. satisfaction.

Vendor's lien-Loss, release, waiver and Where a vendee tenders to his vendor the full balance of the purchase money and demands his deed according to the contract, which tender and demand is refused, such vendee is not released from his obligation to pay the money but the land is thereby released from any further claim by the vendor and he is confined to his personal claim for the money, nor are his rights changed by the subsequent tender of the deed by him to the vendee with a demand for the purchase money which was refused. Haile v. Smith, 113 Cal. 656 (45 Pac. Rep. 872). A vendor's lien is waived by taking a mort. gage to secure unpaid purchase money. Palmer v. Deslaurics, 19 R. I. 505 (34 Atl. Rep. 1108). It is waived by the acceptance of notes secured by a lien upon other lands. Bright v. Murray, Tenn. (35 S. W. Rep. 1088). It is waived by prosecuting a suit to judgment for part of the purchase money and a sale of the land upon execution issued thereon. Dickason v. Fisher, 137 Mo. 842 (37 S. W. Rep.