The entire argument of counsel for appellant, and the only ground upon which we are asked to reverse the judgment in this case, rests upon an erroneous supposition, that the vendor’s lien which appellee seeks to enforce is an incident to the original sale of the land by Parris Smith, administrator of Charles A. Smith, deceased, to John D„ St. Clair. If, in fact, there ever existed any such lien as a security for the purchase-money agreed to be paid by St. Clair for the land, it could hardly be supposed to have survived the discharge and cancellation of the note for security, of which alone it had any vitality or existence. By the subsequent arrangement by and between appellee, Peter D. Smith, St. Clair, Erskine, and appellant Dibrell, the sale of the land to St. Clair was cancelled, and resale of it was made by appellee to Dibrell and Erskine, or, rather, as I am inclined to regard the transaction, St. Clair, with the consent of appellee, sold the land to Dibrell and Erskine, in consideration of their satisfying and discharging his note to Parris Smith. And in consummation of this arrangement, whether it should be regarded as a sale by appellee or St. Clair, Dibrell paid for the one-half of the land conveyed to him by St. Clair, and Erskine executed to appellee the note upon which this suit is brought for his half.
Unquestionably, if this note had been given by Erskine to St. Clair, from whom he got his deed, it not being otherwise secured, equity would have' implied a lien upon the land for which it was given as a security for its payment, whether the note from St. Clair to Parris Smith had been paid or not; and if it had been transferred by St. Clair to appellee in payment of his note, his right to the lien could not be denied. Certainly, the fact that, by previous agreement and understanding among all parties in any way interested in the mat*480ter, the note, instead of being given to St. Clair and transferred to appellee, was given directly to him, will not, as between the parties to the transaction and those cognizant of its nature and purpose, change its character, or operate as a waiver or disclaimer of the lien, which equity ordinarily infers in the absence of other security.
Dibrell, however, was in no way interested in Erskine’s half qf the land, or bound by the note given in payment for it; afid whether it was secured by a vendor’s, or any other character of lien, was a matter of no consequence to him when the transaction was consummated. Appellee’s failure, therefore, to prove that he admitted that the land would be bound for all the unpaid purchase-money, does not tend to show that the lien was waived. Erskine, whose interest in the land alone has been held subject to the lien, testified that, although nothing was said in reference to it at the time, he did not understand that the vendor’s lien was waived. And he also testified that Dibrell, when he subsequently purchased his (Erskine’s) interest in the land at sheriff’s sale for the inconsiderable sum of twenty-two dollars, knew that the purchase-money for which he (Erskine) had given his note to appellee was still unpaid. In view of these facts, it cannot, we think, be denied that appellee was entitled to a decree against appellant for the sale of the half interest in the land bought by Erskine, for the purchase-price of which the note sued upon was given.
But while we are of the opinion that appellee was entitled to a judgment for the sale of the land, we think it was error to direct its sale by Erskine’s administrator; and for this error, the judgment must be reversed and reformed, at the cost of appellee in this court.
Until the purchase-money was paid, Erskine’s interest in the land was in the nature of an equity of redemption. This interest, however, was subject to sale under an execution. All his title and interest in the land was consequently divested out of Mm by the sheriff's sale, and passed to and vested *481in Dibrell. Hence there was at the time of his (Ersldne’s) death no title or estate in the land remaining in him which could descend to his heirs, or vest in his estate for purposes of administration. The court, therefore, erred in ..decreeing a sale of the land for the satisfaction of the vendor’s lien by Ersldne’s administrator. The judgment should have ordered its sale by the sheriff of the county in which it is situated, (Paschal’s Dig., art. 1480,) with direction to apply the proceeds to the payment of the judgment, and if there should be an overplus to pay the same to appellant; but should the amount realized from the sale prove to be insufficient to discharge the judgment, then that the remainder should be certified to the County Court, to be paid by the estate of Ersldne in due course of administration.
For this error, the judgment is reversed and reformed as above indicated, at the cost in this court of appellee.
Eeversed and reformed.