Womble v. Battle, 38 N.C. 182, 3 Ired. Eq. 182 (1844)

June 1844 · Supreme Court of North Carolina
38 N.C. 182, 3 Ired. Eq. 182


A vendor of real estate, who has conveyed it by deed, has no lien upon the land for the purchase money.

The cases of Wynne v Alston, 1 Dev. Eq. 163, and Kelly v Perry, (not reported) and Johnson v Cawthorn, 1 Dev & Bat, Eq. 32, cited and commented on,

This cause being set down for hearing, was transmitted by consent from Wake Court of Equity, at Fall Term, 1843, to the Supreme Court.

The bill stated that the plaintiff had conveyed to the defendant Battle a certain lot of land, in the City of Kaleigh, for the price of $700, for which he had taken the note of the said Battle without any security — that Battle afterwards conveyed this land to the defendant Blake, as trustee, for the purpose of satisfying certain debts of the said Battle mentioned in the said conveyance — that the said Battle is now entirely insolvent, and has never paid his said bond nor any part of it. The bill states that these facts were well known to the defendant Blake, at the time he received the said conveyance in trust from the defendant Battle, claims that the plaintiff has a lien on the said land for the said purchase *183money, and prays that the said defendants may pay off and discharge the said purchase money, or that the land may be sold for the satisfaction thereof.

The defendants’ answer was filed — and the facts alleged in the plaintiff’s bill were substantially proved.

Wm. H. Haywood, Jr, for the plaintiff.

Badger Manly for the defendants.

Nash, J.

On the 5th of September, 1839, the plaintiff sold and conveyed to the defendant Battle the lot of ground mentioned in the bill, at the price of §700, payable on the 1st of January, 1840, for which Battle gave him his bond without any surety. Battle, by deed bearing date the 3d of August, 1S41, conveyed the same lot of ground to Bennet T. Blake, the other defendant, in trust to sell and pay off certain debts due and owing by the said Battle to the individuals mentioned in the conveyance. Both these deeds have been duly proved and registered. The bill is filed to compel the defendant Blake, to pay off and discharge the bond, given by Battle to the plaintiff for the land, upon the ground that the purchase money is unpaid,, and that in equity the plaintiff has a lien upon the land for the purchase money.

That this is the doctrine of the English Court of Chancery, there can be no doubt. It is established by many authorities and running through many years of the judicial history of that country. I do not deem it necessary to refer to these cases at this stage of this enquiry. I shall have occasion to notice them upon another part of the case. The enquiry presented to us is, whether it is the law of North Carolina — - has it ever been engrafted upon our system of jurisprudence % and, if it has not, is its adoption necessary 1 is it in harmony with that policy which the Legislature of our State has, by various enactments, pointed out ? The Legislature of North Carolina, as such, commenced in 1715 — or rather in that year the various statutes, which had been enacted by the *184colonial authorities, were revised and collected into one body, an<^ our history is coeval with it. During the long period of time, which has since transpired, we have no re-cor(j this principle of the English Chancery Law was ever noticed or recognized here — and not until the year 1828 was it brought under the action of our courts of justice. In that year, the case of Wynne and Alstoti was decided in this court, in which the existence of this lien in favor of the vendor of land, was apparently recognized as the law, 1st Dev. Eq. 163. This case, under all the circumstances attending it, and which have since come to light, we do not consider as establishing the doctrine. Judge Hall, it is true, delivered his opinion as that of the court, and so in truth it was, as Judge Henderson in the decree was in favor of the plaintiff. Chief Justice Taylor dissented, and gave an able opinion against the doctrine. It is to be remarked that Judge Hall states that he was not aware that the question had been stirred in our courts before that suit. Divided as the court were, the profession was nevertheless well warranted in considering it as establishing the doctrine; and, if it stood alone, and upon its own circumstances, as reported, we should so consider it, and, however much we might regret, would certainly consider ourselves bound by it. But we are not compelled to receive it at this time as authoritative on the subject. In the trial of the case of Kelly v Terry from Franklin, in which this lien was set up by the plaintiff, it was intimated by one of the counsel concerned in the casp, that it was supposed, the principle was definitely settled by the case of Wynne and Alston, when Judge Henderson observed that was not the case ; he concurred with Judge Hall that the plaintiff was entitled to a decree, but did not concur with him upon this point; his opinion rested upon other grounds. The bill in Kelly v Perry was dismissed, and Judge Hall, in delivering the opinion of the court, appears himself not to consider the doctrine as settled. That case was before the court in the year 1831, and was followed by that of Johnston v Cawthorn in 1834, 1 Dev. & Bat. 32. *185In that case the court distinctly lay it down that it is an unsettled question in our courts. The language of the court is “ the rules by which we are to be guarded are exceedingingly different (referring to the English Chancery rules,) according as the doctrine may or may not have been sanctioned by our predecessors. An adjudication by them is a precedent which we are bound to regard as evidence of the law, unless it can be shown conclusively to be erroneous.” “Where there is no such precedent we then ascertain the true rules by the deductions of reason from settled principles.” The court had before them the case of Wynne v Alston — and yet they say there was no such precedent as was to them evidence of what the law is on the subject. We think, then,, it may be safely assumed, that the vendor’s lien upon land sold for the purchase money has never been received as the law of this State; and the question is now an open one. Two of the Judges in the case of Wynne v Alston dissented, and in that of Johnston v Cawthorn, the distinguished Judge, who delivers the opinion of the court, says “ after several conferences we are unable to agree upon this general question, and, as a determination oí it is not necessary in the present case, we must leave it, reluctantly leave it, in the state in which we find it.” It is not difficult however to perceive the inclination of his mind,-and how he would have decided, if a decision had been demanded by the case. Let us then proceed to the nex-t enquiry.- Ought this principle to be engrafted upon our chancery system ? is its adoption necessary to the safety of vendors, and is it in harmony with the course of legislation pursued in this State? In our sister States different decisions have taken place. In New York the English doctrine is adopted, Garson & Green, 1 John. Ch. Rep. 108, as between the vendor and vendee, and where there is no contract express or implied,-that the parties did not intend a lien. In Massachusetts no such lien exists in any case. In coming to a decision whether we ought to sanction the adoption of the principle here, let us examine its workings in England, and what is the present stale of *186the question there? It is very certain, that every rule adopt-by courts, whereby the titles to real property shall be affected, should be plain and perspicuous, so that the citizen may jmow for himself what the law is — at least, this is the theory of the law. A system, then, complex in its nature, and leading to uncertainty and confusion, ought not to be' adopted, unless imperiously demanded, either by natural justice or necessity. In Mackreth v Symmons, 15 Ves. 344, Lord Eldon reviews the whole of the English cases on this subject — he collects them and points out their disagreement with each other. Some of the authorities consider it as the result- of a natural equity, that a man shall not be deprived of bis'property by a sale without receiving the price agreed on — and others referring it to the contract or understanding of the parties, that the lien should not exist. In Chapman v Tanner, 1st Ver. 267, the earliest case on the subject, and decided in 1688, the bill is dismissed, because it was agreed between the parties that the vendor should retain the title deeds — and it further appeared that he had taken no security. In Bond v Kent, 2d Ver. 281, the vendor had taken a mortgage for part of the money and the parties’ note for the balance. Lord Eldon admits, that, though the argument had considerable weight, it was not conclusive against the vendor’s lien for the residue not secured by the mortgage — and this opinion of his lordship is expressed in 1818. In Pollexen and Moore, 3d Atkins, Lord Hardwick decided, that the vendor had a lien upon the land sold for the purchase money ; but that it was an equity confined to the parties themselves, and not to be extended to third persons. This decision was made by one of the ablest chancellors, that country, so fruitful in able lawyers in every branch of jurisprudence, has ever produced. This opinion of the chancellor is controverted by Lord Eldon, and denied to be correct, and is indeed overruled by many subsequent decisions, Elliott v Edwards, 3 Bos. & Pul. 181. So the case of Fowell v Hulis, Ambler 724, decided, that if the vendor parts with the estate, and “ takes a security for the purchase money, *187there is no reason for a Court of Equity to assist him against the creditors of the vendee.” That case was similar to the present. It was a suit to establish a lien in favor of the vendor against the trustees of an insolvent debtor. It was detided against the lien, because a receipt was endorsed on the deed for the purchase money, and the vendor had taken the bond of the vendee for it. The former fact of the endorsement of the receipt was not relied on, and the opinion of the chancellor is explained as resting on the taking of the bond, as furnishing evidence that the vendor did not intend to rely upon his lien, Naim and Prowse, 6 Ves. 752. In this latter case, Fowellv Hulls, is shaken, if not denied. The master of the rolls decided that there may be a waiver of the lien by taking a security, but it must be one “ totally distinct and independent,” meaning, that not the taking of the security is evidence of the waiver, but the nature of the security. He then, to illustrate bis idea, puts the case “ of the mortgage of another estate, or any other pledge,” as evidence of the waiver. To this, however, Lord Eldon, in Mackreth v Symmons, says, “ It must not, however, be understood that a mortgage taken is to be considered as a. conclusive ground for the inference, that a lien was not intended.” A conclusion, he thinks, not dependent upon taking a mortgage or a pledge, but must be the result of the circumstances of each case as it may arise. The conclusion to which his Honor comes,- is the expression of a strong regret, as to the condition of the question at that time in the English courts. His language is, The more modern authorities upon this subject have brought it to this inconvenient state — that the question is not a dry question upon the fact, whether a security was taken, but it depends upon the circumstances of each case, whether the court is to infer whether the lien was intended to be reserved, or that credit was given, and exclusively given, to the person from whom the other security was taken.” So that it appears from this opinion of his Lordship, that the chancellor must be satisfied that when the bond of a third person is taken, the vendor must have given *188his credit exclusively to him, before he can decide that the ^en was waived by vendor. In the commencement of the opinion the chancellor states, that the question is one of very great importance, and regrets that, as to the waiver of the lien, (‘ he can find no rule laid down in distinct and inflexible terms” — that if the question is made to depend, as it appears is now the settled doctrine of English chancery, though he still doubts, not on the taking of security by the vendor, but on the nature of the security taken, •“ it is obvious that a vendor taking a security cannot know the situation in which he stands without the judgment of a court — that the observation is justified by a review of the cases, from which it is clear, different Judges would have determined the same case differently, and if some of them had come before him, he could not have assented to them.” This declaration is made ;by an English Chancellor, and one of the most distinguished among them, so late as the year 1808, nearly two hundred 'years after the occurrence of the first case, as reported in ■Vernon. It sanctions fully the decision made in the case of Gilmore and Brown, 1st Mason 191; where it is declared •that the lien of a vendor for the unpaid purchase money is a right which has no existence until it is established by the decree of a court in the particular case. Justice Story, in the -1st vol. of his commentary on Equity Jurisprudence, page 461, sec. 1216, says <c a lien is not, strictly speaking, either jus in re or a jus cid rein. It more property constitutes a charge upon the thing.” In commenting upon equitable 'liens, he admits that the doctrine of the vendor’s lien upon the land sold does exist, and at page 416, sec. 1218, he observes, “ It has often been objected, that the creation of such a trust by a Court of Equity is in contravention of the poliicy of the statute of frauds. But whatever may be the original force of such an objection, the doctrine is now too firm-established to be shaken by theoretical doubts.” This undoubtedly is true, so far as the Court of Chancery in England is concerned. There ifhas been established by repeated decisions of their ablest chapccllors and highest tribunals. *189Here we are fettered by no such current of authorities, and are at liberty to be governed in our decision, in the language of Judge Gaston, in the case of Johnston v Cawthorn, “ by the deductions of reason from settled principles.” In discussing the question as to the evidence of the lien, Judge Story says the difficulty lies in determining what circumstances are to be deemed sufficient to repel or displace the lien or amount to a waiver of it. Upon the authorities, this is left in such a state of embarrassment, that it would have been better to have held at once that the lien should exist in no case, and that the vendor should suffer the consequences of want of caution, or to have laid down the rule so plain the other way, as not to require the aid of a court to tell the vendor and others how he stood, p. 470, s. 1224. Chief Justice Marshall, in the case of Bailey v Greenleaf, 5th vol. Peters’ Con. Rep. 231, yields that the doctrine in the English Courts of Chancery is well established, but it is evidently one which did not meet his entire approbation. At page 232 he remarks, however the equity may arise, still it is a secret invisible trust, known only to the vendor and vendee, and to those to whom it may be communicated in fact. To the world the vendee appears to hold the estate divested of any trust whatever. A credit is given to him in the confidence that the property is his own in equity, as well as law. A vendor relying upon this lien ought to reduce it to amortgage, so as to give notice of it to the world. If he does not, he is in some degree accessory to the fraud, practised on the public by an act which exhibits the vendee as the complete owner of an estate, on which he claims a secret lien. It would seem inconsistent with the principles of equity, and with the general spirit of our laws, that such a lien should be set up in a Court of Chancery to the exclusion of Iona fide creditors.” And he- refers with approbation to the case from Ambler of Fowell v Hulis. He concludes by observing that in the United States the claims of creditors stand on high ground — and to support the secret lien of a vendor against a creditor, who is a mortgagee, would be to counter*190act the spirit of the laws made for the protection of creditors aSainst secret trusts. To no state in the Union are the con-eluding remarks of the venerable Judge more applicable than tQ tjj|g — no where does the creditor stand upon higher ground — no where is his interest more sedulously guarded and particularly against secret trusts. All that the debtor has is subject to his claim. The fi.fa. reaches all his tangible property, and binds it from the test of the writ — all—all that he has shall he give to redeem his body — except the few articles secured by the insolvent law. By the 23d sec. of the 37th ch. of the Rev. Stat. it is enacted by the Legislature, “That no mortgage, nor deed, nor conveyance in trust for any estate, real or personal, shall be good or available at law against creditors or purchasers for a valuable consideration, unless the same shall have been proved and recorded within six months after its execution ; and, if not so proved and recorded, shall be absolutely null and void against such creditor” — and by the 24h sec. it is provided, “ that no deed of trust or mortgage of real or personal estate shall be valid at law to pass any property, as against creditors, or purchasers for a valuable consideration, but from the registration of such deed of trust or mortgage in the county where the land lieth — or, in case of chattels, where the donor, bargainor or mortgagor resides — or if he does not reside in the State, then in the county where the chattels or some of them are.” There can be no doubt as to the policy of the Legislature in the enactment of this statute. It was to put an end to the many frauds, which might be practised upon creditors and purchasers by secret deeds of trust and mortgages, by furnishing a convenient and sure mode, in which might be discovered all incumbrances under which an individual held his property. It is not sufficient for a man to take a deed of trust or mortgage to secure his claim upon the property — he must, to render it available against creditors or purchasers, have it recorded — and the deed so recorded has no relation back, as other deeds have, to their delivery, but take effect only from the registration. And we have held that no*191tice of an unregistered deed of trust will not affect a credit- or. Fleming v Burgin, 2d Ired. Eq. 584. It may, therefore, be true, that it is a natural equity, that when a vendor sells his land, that he should have a lien upon it for the security of his purchase money. We think he ought; and the law tenders it to him in the shape of a mortgage or deed of trust properly registered. If he do not choose to avail himself of it, it is his own fault, and, if any one is to suffer from his negligence, the loss ought, in equity to fall on him. By refusing him the existence of this private Equity, known alone to him and his vendee, or to those to whom they may choose to communicate it, which is so dangerous in its consequences to creditors and purchasers, we do not deny him the most ample security — one which, while it secures his interest, protects the community from fraud. Where, I would ask, is the value of this statute so far as sales are concerned, if the vendor can defeat their positive enactment by his original equity as it is termed ? The law says he must take his security in writing, and have it registered. He does take it in writing, but does not have it registered. A question arises between him and a creditor of his vendee. The latter produces the act of Assembly; that fails to protect the ven dor — . all he has to do then is to throw himself upon his reserved right, and the court is to enforce it. This, we think, would be a great absurdity. Shall we then introduce into onr law a principle, which, in its operation, is so inconvenient and uncertain, and has produced such a state of things in England, as to induce one of its ablest chancellors to say, that no man there can tell how he stands, until he has the opinion of a court — a principle so evidently fraudulent in its effects— so contrary to the plain policy of our legislative acts; or shall we cut up the mischief by the roots, by refusing to recognize this secret trust? We are satisfied as to the course our duty points out. We do not believe this secret trust ought to, or does, exist in this State. It is no part of the common law, and is borrowed by the’ English Chancellor from the civil law, and we believe that it would be in defi*192anee of legislative action, if we were so to decide. The bill must be dismissed without costs.

Daniel, J.

The principle; upon which the Courts of hiqUjty ¡laye proceeded, in establishing the lien of the vendor on the land, in the nature of a trust for the purchase money, is, that a person having got the estate of another ought not in natural justice and conscience, as between them, to be allowed to keep it and not pay the consideration money. A third person, upon like principles, having full knowledge how the estate has been obtained, ought not to be permitted to keep it, without making such payment, for it attaches equally to him as a matter of conscience and duty. It would otherwise happen, that the vendee might put another person into a predicament better than his own, with full knowledge of the facts, 2 Story on Equity 465; Cross on Lien 89. This equitable mortgage will bind the vendee and his heirs and volunteers, and all other purchasers from the vendee with notice of the existence of the vendor’s equity. 4 Kent’s Com. 152 (3d ed.) Lord Eldon says, that the doctrine was borrowed from the Roman or civil law, McKreth v Symmons, 15 ves. 329. Tthas been adopted, I expect, by all the States in this Union, which has a separate Court of Chancery. Virginia, New York, Indiana, Ohio, Tennessee and South Carolina, we llnow, have adopted the rule. We see the authorities all collected at the foot of the page, 4 Kent’s Com. 152. There is no decision or printed dictum in this State against the doctrine; but the case of Wynne v Alston, (1 Dev. Eq. 416,) has, ever since its determination, been considered by the profession as establishing in this State this rule, which all admit is founded upon natural equity. C. J. Ruffin admits that the rule of equity of the English Courts would come within our Act of Assembly, adoptingso much of the laws of England &c. and that we would be bound to obey it, if it was not virtually repealed by our legislation in favor of creditors, and particular^ by our registry laws. Our registry acts make void unregistered morgages and deeds in trust,only against bonaf.de cred*193itors and bona fide purchasers for a valuable consideration. As against all the rest of the world the mortgage or trust good without registration, at common law or in equity. Now it is admitted that the defendant Blake is but a volunteer, and it must follow, I think, that he is not such a purchaser as the Legislature intended to protect by the registry acts; and it is equally true that the creditors of Battle, who are here represented by Blake, as their trustee, are not those bona fide creditors, which the Legislature meant (from motives of rigid policy and against the rule of natural justice,) should be satisfied their debts out of the plaintiff’s landed estate, because the plaintiff’s lien or equitable mortgage was not registered. The decision will destroy the right which legatees bad of marshalling the assets against the heirs Requiring the estate by descent, and to stand in the place of the vendor of the land, and set up his lien, so far as to have them satisfied out of the personal effects of the vendor. Sproull v Prior, 8 Sim. Rep. 189. It does seem to me that the plaintiff is entitled to a decree in his favor.

Ruffin, C. J.

As the Court has been heretofore divided on the question that arises in this case, and the present Judges are not unanimous, it seems incumbent on me to state explicitly my concurrence in the opinion, that the bill should be dismissed, and t:o assign the reasons for that opinion.

I do not propose going through- the English cases; which-my brother Na-sh has fully stated, and doubtless, with accuracy. It is sufficient to admit, that they establish the principle, on which the bill is founded. It is worthy of note,, however, that hardly any two succeeding Judges have agreed-in the application of the principle, or,-rather, in what should repel its application. So numerous and complicated have been the modifications of the rule, that one of the most eminent of those Judges has acknowledged, that the law had been brought to the inconvenient state, that no one could tell what his rights were, until the Court had made a decree-in his case, and, perhaps, it would have been better that the doctrine had never been admitted. Í cannot say, that *194would be sufficient to authorise the Courts of this State to' reject this, more than other parts of the common law and equity, brought with them by our forefathers; and I suppose withoQt other legislative alterations of the laws, rendering this needless or inconsistent with them, we should have been bound to receive it and deal with it, as well as we could, in its application to the contracts of our people. But certainly the opinions, thus expressed by those best acquainted with its origin and operation, are well calculated to prevent it from being a favourite with us, and to lead us without reluctance to give it up, if its necessity is dispensed with by new laws enacted by the Legislature, or if such laws be incompatible with it.

That the reasons for it in England do not now exist here, would seem to be apparent to one who adverts to the different states of the law in the two countries in respect to the legal remedies of vendors against the land for the purchase money. Upon a judgment for it in England against the vendee, only half the land could be taken by elegitfrom him or his voluntary or fraudulent alienee. If a security for the purchase money was not taken, expressly binding the heir, or if the vendee devised the land, the heir, and at common law, the devisee, held exempt from recourse by the vendor on any part of the land. That those persons should hold, some one half of the land and others the whole, without paying the purchase money, was so palpably unjust as to make a strong appeal to the chancellor for redress. It is plain, that the application to the Court of Equity would only be made, when the vendee was insolvent, or when payment could not be enforced by an action at law, as against the heir on a simple contract security or a devisee. In such cases, doubtless, the rule had its beginning; and in such cases the vendor unquestionably had conscience on his side. But one would think nothing was hazarded in saying, that the Court of Equity in England, under her peculiar judicial organization and system of jurisprudence, would never have borrowed from any law, nor of itself set up this lien, as a creature of that Court, if at law the vendor had a direct *195recourse to the land in all cases. Why should equity have interfered in that state of the law? It would be a complete answer to the vendor’s bill, that the law had done all for him, which equity could, and as his demand was for a sum of money, claimed as a debt, it was merely legal, and he should go to law for it.

Such is precisely the state of our law, as to the remedies for the purchase money and all debts against the real estate of the debtor in his own hands and those who succeed to him. Upon a judgment against the vendee, the land is taken from him or his fraudulent alienee, and sold out by fieri facias. In like manner it is, by several statutes, rendered liable at law in the hands of the heir or devisee for every debt of the ancestor or testator. Wherefore, then, should the vendor come into equity? This consideration presses strongly on me; and seems not to have been allowed its due importance by those, who advocate this doctrine. Its fair weight may be estimated from the fact, that there never has been an application to the Court in this State against the vendee or his voluntary or fraudulent alienee, or his heir or devisee, upon the ground, that, as against them, the vendor had not an effectual remedy, at law, against the land: For the legal liabitity of the land for the debt is a cheaper and better security than a lien in equity. It is true, that other creditors may sell the land for their debts, and in that way the vendor may lose his purchase money, for the want of a specific security on the land. But that brings up other considerations which will be noticed hereafter. We are now considering the question between the vendor and volunteers: and between them there is, plainly, no occasion for this implied equity. It is said, that it is against natural justice, that a man should lose his estate without being paid for it. So it is, and if he did not of his own accord convey it, equity would never take it from him until he was paid for it. But when he actually conveys the estate, the question is then, whether the parties meant or justice requires, there should be a specific lien, in equity, for the purchase money. It may be so in England, where the purchaser may by law *196hold the land from all his creditors, including vendor. But, if it be the object of a Court to compel persons to fulfil their contracts, according to their actual intentions at the time of making them, it cannot be so here. They know that by our law the vendor may sell the land by legal process for his debt, and they never contemplate this constructive equitable lien as a natural right of the one against the others, or as necessary or useful. It cannot be ?o at all in this State, except when advantage is taken of it against creditors of the vendee or purchasers from him. But if the lien does not exist between the original parties, it cannot against purchasers or creditors, who are entitled to all the rights of their vendor or debtor, besides some which he has not. But so far from the argument in favour of the lien receiving strength fponp the necessity for it to protect the vendor from purchasers op creditors of the vendee, it is refuted by that very circumstance. A secret and uncertain equity, like this, is entirely inconsistent with the numerous enactments requiring early publicity to be given to all incumbrances. There has been an anxious solicitudein theLegisIaalure to prevent false credit and imposition on purchasers,-arising from the corjcealmentof nportgagesand otherincumbrances. This has been evinced from the year 1715, down to this time; and, at every interposition, the provisions on the subject were made more rigid. In 1820 it was enacted, that every mortgage or deed of trust, not registered within six months, should be void as against purchasers and creditors. That not answering all the purposes desired by the Legislature, in 1823 all the evils were cut up by the roots by an act, that no such deed shall be valid as against creditors and purchasers but from its registration. Now, what |is the necessary construction of such acts? It must be, that, as the object is to suppress fraud by compelling persons to register incumbrances, every incumbrance, not in writing, and so not capable of registration, is within the mischief of the and made void by it. An act upon a kindred subject long received that construction. The act of 1784 recited that many persons had been injured by secret deeds of gift, then enacted that all deeds of gift should within nine *197months be proved and recorded or should be void. Notwithstanding a constant succession of acts, giving further time to register deeds ofgift, it was held in Sherman v Russell, 2 L. Repos. 447, and McCree v Houston, 3 Murph 429, that a parol gift of a slave, accompanied by possession, was void, although the act did not in words make it void, but only written ones, not registered. The reason was, that, if it were not so held, the statute would be always evaded, to the detriment of creditors and purchasers, by making secret oral gifts, instead of written ones, which required registration. It follows conclusively, as it seems to me, that no parol agreement for a lien between the vendor and vendee would be admissible against the acts of 1820 and 1829; and, for the like reason, that no resuiting or constructive lien should be raised by the Court of Equity. Indeed the cases upon the act of 1784 were not necessary to the argument, except as illustrations merely ; for there have been several cases upon those very acts for the registry of incumbrances, which follow out the principle. In Gregory v Perkins 4 Dev. 50, and in Halcombe v Ray, 1 Ired 340, the Court decided that a deed, absolute in its terms and registered, but in fact intended as a security merely, was void, under the acts of 1820 and 1829. In [the latter case there was no actual intent to deceive, and the sum, intended to be secured, was really due. But the Court could not [sustain the deed, because the Legislature intended, that every security should speak the truth, so that, when registered, its extent could be known ; and therefore, although those parties were innocent, yet, if the deed was held good, other persons with bad intentions might effectually evade the act and conceal their incumbrances. So, in Fleming v Burgin, 2 Ired. Eq. 584, it was held, that under the act of 1829 the deed does not become complete until registration, and, therefore, that notice of it does not affect a subsequent mortgagee, taking a security for a prior debt. Indeed, in no respect has the Legislature of this State so changed out law, as to make the contrast between it and the law of England greater, than upon this point. In England, if a fine or recovery was not *198indispensable, the conveyance by lease and release became almost universal, for the very reason that it enabled persons to shut out the view of the public from the title; and mortgages were nearly all created by that species of conveyance and for terms for years. Persons are there allowed purposely to keep their incumbrances under cover. Whereas, here, every conveyance requires registration ; and those given as securities are not effectual to any purpose as against creditors and purchasers, until they are registered, and then but from the time of the registration ; and such as were so intended, but do not appear so to be on their face, are absolutely void, though registered.

It is thus seen that the Legislature has spoken in as strong terms as possible against latent liens, and secret and indefinite incumbrances ; and that the Court has endeavored to follow the legislative will and policy in administering those acts. If there be any such incumbrances still subsisting here, it must be only this lien for the vendor. All others are abolished here, though they may yet be upheld in England. There, for example, an equitable mortgage by a deposite of the title deeds is well known. But I presume no one, in the face of our acts of Assembly, would hold, that it can be so here. Those acts require a registration, and, by consequence, a written mortgage, and if we once depart from the rule, there will be nothing to guide the Court or to prevent persons acting as if no such statutes existed. The supposed lien in question must give way to the principle, on which the legislative policy and enactments rest, like all other incumbrances the parties may attempt to create, without putting them into the form required by the statute. If the vendor intends that the estate shall be a security for the price, he has nothing to do but to retain the title, or, if he conveys, to take a mortgage or deed of trust. If he should take a mortgage and not register it, the law makes it void. In such a case I think it impossible to contend, that he could still insist on an equitable lien as a security. The law and equity would both avoid the security created by the express contract of the parties, on the ground, that it had been kept se*199cret, or rather, had not been published in the manner scribed. Then, certainly, another incumbrance ougt not to be raised by mere construction of equity, which cannot be registered, and especially for the sole purpose of setting it up against cieditors and purchasers, who are the very persons, for whose safeguard the writing and registration of incumbrances are required.

I conclude thattheye is no ground in this State for implying such a lien against the vendee or volunteers under him; and that such an implication against creditors or purchasers is opposed by the plain import of the statutes that have been mentioned and the policy which dictated them.

Upon these grounds I was prepared to decide the general question in Johnson v Cawthorn. 1 Dev. Eq. 163. It is true that Wynne v Alston, 1 Dev. Eq. 163, was understood by me, then on the circuit bench, to have decided in favor of the lien ; and I should have held accordingly, had a case come before me. And so I should have done up to the time, at which Kelly v Perry came before the Court, which I think was in 1831. Then the occurrences happened, which were mentioned, on his memory and my own, by Judge Gaston in Johnson v Cawthorn. From that time to this it has been considered an open question; and has been so mentioned in some cases. Crawley v Timberlake, 1 Ired. Eq. 346. How the question might have been decided, had it been necessary in Kelly v Perry, I cannot say, as I had then no very distinct impression on it, having received Wynne v Alston in its obvious import. But I know, that Judge Heneerson disowned the doctrine on that occasion; and that, after consideration and consultation, Judge Gaston and myself would have given judgment against the lien, altogether, in Johnson v Cawthorn, had not my Brother Daniel’s opinion to the contrary induced us to retain the question under consideration, until it should, as now it has, become absolutely necessary to dispose of it.

It is to be noted however, that of the Judges, who have set in this Court, seven have been called on for their opinion *2000n this question, and that only two have been for entertaining this alleged equity, while the other five have held the contrary.

Wherefore I concur with my Brother Nash that the bill must be dismissed.

Per Curiam, Bill dismissed, without c osts.