| Md. | Jun 1, 1864
delivered the opinion of this Court:
On the first of January 1843, Joseph Isaac one of the defendants to the bill, filed in this case, sold to one Jacob T. Hall the land in controversy for seven hundred dollars. The land had descended in fee-simple to the children of Isaac, as the heirs at law of their mother; he being tenant by the curtesy. His children, with one exception, were minors at the time of the sale. When Hall purchased, he gave his note to Isaac for the $700, with Joseph J. Jones as surety. The purchase money was to be paid in
At the time of the purchase made by Jacob Hall, Isaac gave to him a receipt for the §100, the instrument containing this receipt, purporting also t© he a bond of conveyance though not under seal. By this paper writing, Isaac bound himself, bis heirs, &c., to convey or cause to be conveyed by himself and his children, all their right and title to the land above mentioned, under the penalty of one thousand dollars.
Subsequently to the purchase by Jones from the sheriff, he died without obtaining a legal title from Isaac. And this, bill was filed by the appellees, his heirs at law, to obtain this title. The children of Isaac having arrived at full age were made defendants, answered the bill, and expressed their willingness to convey the land as the Court might direct.
At the time when Isaac obtained his judgment against Jacob Hall and Joseph Jones in 1848, 'William H. Tuck, administrator of Sarah Slater, had an outstanding judgment rendered in 1846, against Jacob Plall; on this judgment execution was issued and levied on the equitable interest of Jacob Hall, and being offered for sale under Tuck’s execution, it was purchased by Richard D. Hall, the appellant, and he took possession of the land.
In addition to the prayer of the complainants for a legal title, they also pray that Richard D. Hall, who was made a defendánt, may he decreed to deliver to them the possession of the property. The Circuit Court passed a decree
The appellees claim the title to the property because their father having been the surety of Jacob Hall, and having become the purchaser of Hall’s equitable estate under the judgment and execution and sale of Hall’s interest, had paid to Isaac, the vendor, the balance of the purchase money. The appellant Richard D. Hall claims it because the purchaser, Jacob Hall, had paid one-third of the purchase money to Isaac, thereby creating, to that extent, such an equitable estate as would be liable to execution under the Act of 1810, ch. 160: and he, Richard, having purchased the same under a senior judgment then outstanding against Jacob Hall, Richard Hall alleges he is entitled to hold the land by virtue of lvis purchase.
At the time of filing the bill, the children of Joseph Isaac had arrived at full age, and being made defendants, answered the bill, and say: “they are now, and have ever-been ready and willing to execute a deed and convey the land to such person or parties as your honorable Court might direct, having determined to whom the title now resting in your respondents of right belongs.”
This confirmation of the sale made by Joseph Isaac, the father, must be held to relate back to the sale to Jacob Hall at the time he made the purchase, and in the disposition of this case, the ratification of the sale by the children has the same effect as if they had been of full age and were parties to the contract of sale made by their father, and will enure to the benefit of the party now entitled under the original vendee.
It is contended by the appellees that Isaac, the vendor, did not waive his lien for the pnpaid part of the purchase money, conceding this, it is proper to consider what that lien is. In the case of Smith vs. Gage, decided by the Supreme Court of New York, and cited in 2 Am. Law. Reg., (new series,) 438, itis said:' “From thetime of making a contractfor the sale of land, and until payment, the vendor has a mere
If Isaac thus had a lien on the land for the purchase money or for such part thereof an remained unpaid, and instead of pursuing his remedy in equity, prosecuted an action at law against Jacob Hall and Jones his surety, on the note given by them, obtained a judgment, levied an execution on Jacob Hall’s equitable estate, sold the same under the execution, and Jones became the purchaser under this judicial sale, the vendor’s lien was thereby extinguished, and Jones bought, like any other purchaser, upon the principle of caveat emptor, subject to any outstanding judgment or lien existing against Jacob Hall. This ex-tinguishment of the vendor’s lien, entirely excludes Jones’ right of subrogation, so earnestly pressed upon our consideration.
In the case of Richardson vs. Stillinger, 12 G. & J., 477, this Court said: “Such a seizure and sale could only transfer the interest of the vendee, at the date of the judgment, or of the issuing or levy of the attachment, and would be subject to all judgments, liens or outstanding equities, existing against the vendee anterior to that time.” The result therefore, is, that Jones or his heirs can claim only the legal title under a junior judgment and senior execution, while Richard D. Hall claims the same under a senior judgment though junior execution.
When therefore Jones suffered Isaac the vendor to enforce his judgment by execution and sale of Jacob Hall’s interest and became the purchaser, he stood in no better condition than any other purchaser who should purchase subject to any prior lien binding on the land, and would be affected by the rule recognized in the case of Miller vs. Allison & others, 8 G. & J., 35, where it is said: “Should a fieri facias on a junior judgment be levied on an equitable interest in the hands of the debtor, and subsequently a
That portion of the decree which directs Joseph Isaac, and the other parties named therein, to convey to the complainants the legal title to the property involved in this suit, must be reversed and the bill dismissed, and this Court will sign a decree to that effect; also direct in the decree-that the deed executed in conformity with the decree of the-Circuit Court, be rescinded, and that Joseph Isaac and his-children execute a deed conveying the legal title to said property to Richard D. Hall and his heirs.
The Circuit Court having decreed that the bill be dismissed as to Richard D. Hall, and the complainants having appealed from this portion of the decree, it follows from the reasons assigned by us in the case of Richard D. Hall & others, vs. Luther D. Jones & others, that this portion of the decree must be affirmed.
Recree reversed in part and affirmed in part, and bill dismissed.