dissenting.
Before tbe rendition of tbe j udgment, in this case, Baker, the defendant in tbe judgment, had sold the land, given his bond to make title on payment of the purchase money, delivered up possession of the land and received the greater part of the purchase money. The contract of sale had not been ■at all rescinded, nor did there exist any reason to authorize either party to,ask for a rescisión. A part of the purchase money, it is true, remained unpaid; but it does not appear, even that that part had then fallen due.
Was this land subject to the judgment against Baker? That is the question. .
What interest did Baker retain in the land ? The legal «title to it. Why ? To serve as security for the payment of the purchase money, and for no other purpose. He retained no right to sell the land to another person; no right to recover possession of it himself; no right to encumber it in -any way.
True, that if, although he retained no right to sell it, he had, without right, sold'it; and sold it to a person not having notice of the previous sale, that person would have got a good title. But this would have been so, by virtue of certain principles/of equity.
This, then, is the quantity of interest which Baker retained in the land — the legal title as a security for the purchase money.
And this is the interest which a trustee has in the trust property. Baker, the vendor, became, for the vendee, a -a trustee of the land.
“ One of the first principles of equity is, that it looks upon things agreed to be done, as actually performed ; and acting on this principle, when the contract is made, it considers the vendor as a trustee for the purchaser of the estate sold, and the purchaser, as a trustee of the purchase money for the vendee.”
*460“ This equity attaches immediately on the making of the contract; and will not, therefore, be affected by the subsequent death, or bankruptcy, or any other act of either of the parties, before the contract is carried into execution.” (Hill on Trustees, 171; See 1 Sug. Ven. & Pur. 273; 2 Star. Eq. §§789, 790.)
“ The legal inheritance vested in trustees, is not, in Equity, subject to the dower or free bench of their widows, or to the estate by courtesy of their husbands, although those rights will attach on the trustees’ estate at Law. Nor will that or any other interest, held only in trust, be affected, in Equity, by the judgment or other debts or engagements, or by the bankruptcy or insolvency of the trustee.” (Hill on Trusteesy 269.)
Assets in the hands of an executor or administrator, are-not, even at Law, subject to a judgment which is against him individually; yet, he individually has the legal title to them. -(I Wms. on Ex’rs, 402.)
So mortgaged property, before a foreclosure of the mortgage, is not subject to a judgment against the mortgagee. Excellent reasons are assigned for this in Jackson vs. Willard, (4 Johns. R. 41.)
And all those reasons exist in a case like the present; a •case which, indeed, differs from that of a sale with a mortgage back of the property sold to secure the price, only in form. (Cobb’s Dig. 517, 518, 519.)
In each of the two cases, the seller holds the legal title, and holds it for the same purpose — to secure the payment of the purchase money. In each, he may subject the property to the payment of a judgment for his debt, to the exclusion > of all other judgments.
The Act of the Legislature declares, that “When any judgment has been or shall be rendered in any of the Courts of this State, upon any note or other evidence of debt, given for the purchase of land, where titles have not been made, but bond for titles given, it shall and may be lawful for the obli.gor in said bond, to make and file, and have recorded in the *461•Clerk’s office of the Superior Court of the county, a good and sufficient deed of conveyance to the defendant,- for said land; ■and thereupon, the same may be levied on and sold under-•said judgment, as in other cases: Provided, that the said judgment shall take lien upon the land prior to any other-judgment or incumbrance against the defendant.” (Cobb’s Dig. 517, 518.) .
This object might, no doubt, have been accomplished in Equity, before the passage of this Act.
A judgment of foreclosure of a mortgage, has a like effect in respect to the property mortgaged.
If, then, the title which a mortgagee has, is not subject to -■a judgment against him, neither can the title which a vendor retains as a security for the purchase money, be subject to a judgment against him.
And why should not this be so ? The legal title, as a security for the debt, is but an incident of which the debt is the principal; and it is a maxim, that aeeessorium non ducit, sed sequitur principóle. The security — the land — therefore, cannot be separated from the debt. And if sold, it would be ■separated from the debt. It could not carry the debt with .it, not only because, of the maxim aforesaid, but for another ¡reason. To let it carry the debt with it, would be the same-as subjecting the debt, itself, to levy and sale; and a debt is •not the subject of levy and sale. McGhee vs. Cherry, (6 Ga. 550.) Indeed, the debt may have been negotiated.
Now when the debt has been negotiated by the vendor, all •admit, I believe, that the .legal-title is not subject to a judgment afterwards obtained against him; but, in principle, what difference can it make whether the debt has been negotiated or not, if it be true that the judgment has no lien on the debt; for if it has none, then the vendor must have the right to negotiate it. If the judgment has no lien on the debt, it has nothing whatever on it or in it; and if this be so, the judgment cannot be the instrument of transferring the debt from one man’s hands to another’s.
The result of all that has been said is, I think, the conclu*462sion, that the interest which Baker, the vendor, retained in this land, was not, at least in Equity, subject to this judgment.
But if the claimant might accomplish the object of his claim by a bill in Equity, I do not see why he may not do the same thing by his claim at Law. The Act of 1820 declares, that “ Whenever a plaintiff or complainant shall conceive that he, she or they can establish his, her or their claim, without resorting to the conscience of the defendant, it shall and may be lawful for every such plaintiff or complainant to institute his, her or their action, upon the Common Law side of the Court; and shall not be held to proceed with the forms of equity.” (Pr. Dig. 447.)
I am not sure that I understand on what ground the judgment of the majority of the Court is put. I am not certain as to the quantity of interest in this land which they think subject to the judgment.
I suppose, however, that as to this, I may assume that one of two things is true—
1. Either that they deem the whole interest in the land ■subject;
2. Or, that they deem that only such a part of the interest as shall be equal, in value, to the amount of the unpaid part ■of the purchase money is subject.
New if what I have already said is true, neither of these propositions can be true.
There is, however, another reason why I think they are not true — a reason founded on the rights of the vendee, in •cases of this sort.
At the time when the contract of sale is made, in eases like the present, the contract is a good contract, and instantly •confers rights on the parties to it: on the vendor a right to Lave the purchase money the moment it falls due; and if it is not then paid, a right to take steps to subject'the land to its payment; on the vendee, a right to have a title made to him the moment he pays the purchase. Yes, it is the right •of the vendee derived from the contract, that he shall have a *463itle to the land, conveying to him the whole interest in the land, on his payment of the purchase money.
But if we let the whole interest in the land be sold to satisfy a debt against the vendor, we defeat all the right which the vendee derived from his contract. We put it out of the power of the vendor ever to make him a title to any interest in the land.
If we let a part of the interest in the land be sold — an interest, say equivalent in value to the unpaid part of the purchase money, we do the same thing only in a less degree.
It is therefore impossible, it seems to me, to let any quantity of interest in the land be sold to satisfy a debt of the vendor’s, without violating the lawfully acquired rights of an. innocent person, the vendee.
It will not do to say that what is allowed to be sold, is not an interest in the land, but a mere right to have payment of the purchase money. A debt is not subject to be sold under fi. fa. I have, however, already discussed this point.
In conclusion, I will simply say that I see nothing hard to. creditors, in the result to which I have come. They may, by a garnishment, get their hold on the debt for the purchase, money, and by an injunction,, secure that hold; and with this they should be content; for the right to the purchase money is all that the vendor, their debtor, is in justice and equity entitled to; and they cannot be entitled to more than he is. And the best way by which they can get at this, I think, is the direct way — the way of garnishment.
Eor these reasons, I dissent from the judgment of the Court.