In Chapman v. Tanner, (1 Vern. 267.,) the lien of the vendor was maintained against the assignees of a bankrupt. But in Fawell v. Heelis, (Ambl. 724.) the Lord Chancellor, speaking of that case, says, "It appears by the Register's book, that the seller was to keep the title papers till he was paid. The Court said, that a natural equity arose from his having the deeds in his custody." This explanation of the case of Chapman v. Tanner lessens the weight of that case in support of the lien, not only as against the assignees of a bankrupt, but as against the vendor himself, since the retaining of the title deeds by the vendor is considered as equivalent to an agreement for the preservation of the lien. Fawell v. Heelis and others, reported in Ambler, was a suit to establish the lien of the vendor against the trustees of an insolvent debtor. The Chancellor determined against the lien, because a receipt for the purchase money was endorsed on the deed, and a bond taken for it from the vendee. "If" said the Court, "the vendor parts with the estate, and takes a security for the consideration money, there is no reason for a Court of equity to assist him against the creditors of the purchaser." A doctrine ascribed to Lord APSLEY, that "creditors claiming under such a deed (a deed of an insolvent debtor to trustees for his creditors,) stand in the same situation as creditors under a commission," has been supposed to apply to the case now before the Court, and is cited by Mr. Sugden to support his general proposition, that "creditors claiming under 1822. Bayley V. Greenleaf. 1822. Bayley V. Greenleaf. a conveyance from the purchaser are bound in like manner as assignees, because they stand in the same situation as creditors under a commission." It is uncertain whether this was said by the Chancellor, as from himself, or with reference to the arguments of counsel; but if it be his dictum, it will not, we think, aid the plaintiffs in the cause under consideration; nor does it justify the broad and general terms used by Sugden; terms which have been probably understood in a more extensive sense than he intended. A declaration that creditors under a conveyance, and under a commission, are in the same situation as regards the lien of the vendor, made in a case in which the decree was against that lien, is not entitled to the respect which the same declaration would claim had the decree been made in favour of the lien. The Chancellor was against the lien, whether set up against assignees or trustees, and might not therefore examine very accurately the sameness or the discrepancy of the principles on which the two cases stood. Had he considered Chapman v. Tanner, as decided on the general principle, and not on its particular circumstances, it would have been necessary to inquire whether the same principle applied to the case of Fawell v. Heelis and others; but not being of that opinion, and being opposed to the lien, the inquiry became less necessary. Another consideration, entitled to great attention, is, that this dictum of the Chancellor, if it be one, is confined in terms to "such a deed" as was then under his consideration. That was a deed made by an insolvent, after his insolvency, to trustees for his cre ditors. This was, we suppose, a deed made in pursuance of the statute; and between a deed assigning the estate of an insolvent under the insolvent law, and a deed assigning the estate of a bankrupt under the bankrupt law, there is not perhaps much differBut it does not follow that the same rule would be applied to a conveyance made by the mere act of the party, for the security of one or more creditors, or of creditors generally. ence. The case of Blackburn v. Gregson, (1 Bro. Ch. Rep. 420.) was also an attempt to set up the lien of the vendor against the assignees of a bankrupt. In that case, the general question of the existence. of such a lien was argued at bar as one not yet finally settled; and, although the inclination of the Chancellor's mind seemed in favour of the lien, he made no decision on that point. An issue was directed to try whether the conveyance was made to defeat creditors under the 13th of Eliz. ch. 5., and the jury having found that it was so made, the conveyance was set aside. The question of lien appears to have remained still open; and in the case of Nairn v. Prowse, (6 Ves.jur. 752.) it was still doubted whether a vendor who had taken the bond or note of the vendee for the purchase money, retained his lien on the land. That case was between a creditor who claimed under an equitable mortgage created by the deposit of a deed, and the vendor who had taken a deposit of stock to secure the payment of the purchase money. The Court determined, that by taking the deposit of stock he had 1822. Bayley Greenleaf. 1822. Bayley V. Greenleaf. waived his lien; and, consequently, the question between the creditor and vendor was not decided. It does not appear ever to have been decided. We find no case in which the naked question has been determined against the creditor. Could the case of Chapman v. Tanner even be stripped of the circumstance that the vendor retained the title papers in his hands, still the assignees of a bankrupt are not understood, in England, to stand in the same situation with a creditor who is secured by a mortgage. In the case of Mitford v. Mitford, (9 Ves. jur.) the Master of the Rolls says, "between a particular assignment for valuable consideration, and an assignment by operation of law, such a distinction has always been made, that the effect of the one is not necessarily to be inferred from that produced by the other." In the same case he says, "I have always understood the assignment from the commissioners, like any other assignment by operation of law, passed his rights precisely in the same plight and condition as he possessed them. Even where a complete legal title vests in them, and there is no notice of any equity affecting it, they take subject to whatever equity the bankrupt was liable to. This shows they are not considered purchasers for a valuable consideration, in the proper sense of the words. Indeed, a distinction has been constantly taken between them and a particular assignee, for a specific consideration; and the former are placed in the same class as voluntary assignees and personal representatives." Were it then completely settled that the vendor retains his lien against the assignees of a bankrupt, it would not follow that he would retain it against cre- The weight of authority is, we think, the other way. The lien of the vendor, if in the nature of a trust, is a secret trust; and, although to be preferred to any other subsequent equal equity, unconnected with a legal advantage, or equitable advantage which gives a superior claim to the legal estate, will be postponed to a subsequent equal equity connected with such advantage. This principle is laid down in Hargrave and Butler's notes to Co. Lytt. 290. b.; and the case of Stanhope v. Earl Verney, decided in Chancery in 1761, is quoted in support of it. That was the case of an equitable mortgage, founded on the deposit of a deed for a term of years to attend the inheritance, with a declaration of the trust. This is a much stronger case. It is an actual conveyance of the legal estate. In the United States the claims of creditors stand on high ground. There is not perhaps a State in the Union, the laws of which do not make all conveyances not recorded, and all secret trusts, void as to creditors as well as subsequent purchasers without notice. To support the secret lien of the vendor 1822. Bayley V. Greenleaf. |