dissenting.
This was a demurrer to a bill in Chancery. The bill alleges that on the 29th day of December, 1853, Merrick Barnes sold and conveyed to James W. Wade ten acres of land, a part of lot No. 328, in the first district of Dougherty county, and at the same time took a mortgage from Wade to secure the purchase money. Wade entered into possession and occupied the land for eighteen months. He then left the county and sent word to Barnes, he not having paid him for the land, to do the best he could with it. He sold the land on the 12th day of August, 1854, to the defendants in error, and transferred to them the mortgage taken from Wade. The plaintiffs in error obtained a jugment against Wade in Baker Superior Court in 1852, on which an execution was issued and levied on the land as Wade’s property. The bill prayed that-the sale under the levy might be enjoined, and that the lien of the vendor might be enforced against the judgment creditors of Wade, and that a mistake in the drawing of the original notes and mortgage might be corrected.
The grounds of demurrer are :
1st. Want of equity in complainants bill.
2d. That the bill is multifarious. And,
3d. For insufficiency in form, and want of proper parties.
The Court below overruled the demurrer, and held that the vendor’s lien existed and should be enforced against the judgment creditors of Wade.
This Court affirms that judgment. I cannot agree with the majority of the Court in this judgment, and now proceed to state my reasons for dissenting therefrom. The judgment of Scott, Carhart & Co., bound the land the moment it was conveyed by Barnes to Wade. That conveyance vested the legal title in Wade to all intents and purposes. He could have maintained ejectment for its recovery against Barnes and every one else. Barnes could not have entered upon *416him. He could not have evicted him by any legal proceeding whatever. The property was his, and he had the deed, which was the just cause of possessing that which was his. But it is said that Barnes was the vendor of the land to Wade, and had, what is technically called, the vendor’s lien thereon for the payment of the purchase money, and that he was entitled to enforce it in a Court of Equity. Now, I understand the vendor’s lien to be a natural equity, that land sold shall stand charged for the payment of the purchase money, without any special agreement for that purpose, and that the vendee stands seized in trust, a secret invisible trust, evidenced by no writing, for the vendor for the purchase money, and that this trust can be known to the vendor and vendee only and to those to whom it may be communicated in facts. 7 Wheaton’s Rep. 50-51. Where a mortgage is given, the vendor’s lien, which is known only in equity, can no longer exist, and the vendor having elected to take a mortgage is confined to his legal lien on the mortgage. “ Expression facit cessare taciturn.”
By the execution of the deed to Wade, the legal title passed to him, and the property of course; and by the statute, all the property of a party against whom a verdict shall be rendered, shall be bound from the date of the first judgment. Cobb’s Dig. 494. The legal lien of the judgment attached upon the land the moment the deed was executed to Wade, and before the mortgage could possible have been executed. The same act did not vest the title in Wade and pass it out of him as a conduit, as in the case of a fine. The act of conveying the land and vesting the property in Wade, was the act of Barnes. The act of reconveying it and giving a mortgage on the land was the act of Wade, and could have had no effect, if the property had not been in him at the time. But a mortgage is not the absolute conveyance of the estate,but, as in this case, it is a conveyance on condition, that if the mortgagor does not pay the money at the the time stipulated, the estate shall then become ? bsolute in the mortgagee.
*417At the time of the execution of the mortgage, then, the estate did not pass absolutely out of the mortgagor, and of course did not vest absolutely in the mortgagee. In England and in some of the States of the Union, when - the condition is broken, the estate is so absolutely vested in the mortgagee that he may maintain ejectment and recover the premises. That is not the case here. In this State, a mortgage in its inception is nothing more than a security for the payment of money, and it so continues to be, and nothing more, after the breach of the condition.
The mortgage, therefore, creates a lien only, and not an estate, and the mortgagee, in relation to the mortgaged property, stands on the same footing of any other creditor. He is entitled to be paid according to the date of his lien. His lien takes effect from the date of his mortgage ; that of the judgment creditor from the date of his judgment.
But it is said that it would be inequitable and unjust, against the principles of “natural equity,” to allow the creditors of Wade to seize and sell lands purchased by him, and for which he has never paid, to the exclusion of the vendor. This is an argument to be addressed to the Legislature and not to the Courts. But the incaution of the vendor has brought him into the difficulty. It is not the fault of the law. He made the land the property of Wade by conveying the title to him. He need not to have done it. He might have retained the title and the property until the payment of the purchase money. He might have given a bond to make the title on the payment of the purchase money. Wade, then, would not have had the property in the land. He would not have had an equity against Barnes to have demanded a title, until every dollar of the purchase money was paid; nor would a trust have been raised by implication, before the payment of the money, in Barnes for Wade’s benefit, which would have authorized the creditors of the latter to have levied on and sold it. These arguments, founded - in the equity of a case, cannot prevail over the law. There can*418not be a stronger equity than that which exists in favor of a bona fide purchaser of property from a debtor against whom a judgment exists, for which he pays full value, without actual notice of the judgment; and yet no Court of Chancery, on the ground of such equity solely, will interpose to enjoin the judgment creditor from proceeding against that property.
But it is said that the title did not remain in Wade a moment, but passed immediately out of him back to the vendor. The groundlessness of this position is shown by the complainants’ bill, for if the title and property are still in Barnes, whence the necessity of these proceedings ? The complainants’ suit has no foundation if the property be not in Wade. If it is not Wade’s property, the plaintiffs in error could not succeed at law. But it is because they must succeed at law, that the bill is filed to enforce,a lien upon Wade’s property which, it is insisted, is entitled to the protection of a Court of Chancery against the creditor’s judgment. The principle contended for in this case has been acted on and recognized in some of the States of the Union ; so far as it has been acted on, I think it has its foundation in the case of Amcotts against Catherich, Cro. Jac. 615, and a case cited in argument by counsel in that case. In that case the husband and wife were tenants in special tail. They had issue and the wife died. Mathew Amcotts, the husband, made a deed of feoffment to the use of himself for life, and after, for the use of Alexander, his son in tail, and a letter of attorney to make livery ; before livery, he married again, and after livery was made to the above uses, he died. The tenants endowed the wife, who took defendant to husband. Alexander, the son, entered and brought trespass.
The question was upon the wife’s right to dower. It was held that she was not dowable, because the livery did not gain the husband any new estate; that, before the feoffment, he was not seized of such an estate of inheritance as the issue of the second wife could inherit; and the feoffment was to himself for life, and after to the use of his son Alexander in *419tail, which passed the estate, eo instanti, out him, so that he had no seizin of which the wife was dowable.
That case does not sustain the principle. The husband had no estate of inheritance descendible to the issue of the second marriage.
In New York, the opinion of the Bench was by no means settled in support of the principle contended for in this case, and the Legislature passed an act to give the preference to mortgages, given to secure the purchase money of an estate, over .judgments. I think it requires Legislation here to do it.
Wade purchased the land and received a conveyance for it This passed the title to him. He entered into possession of the land and occupied it for eighteen months. He gave to his vendor a mortgage, at the time he received the conveyance, on the same premises, to secure the payment of the purchase money. This did not revest the title in Barnes, but only gave him a security. This security was a lien on the land, not a title to the estate. Wade abandoned possession of the land after eighteen months possession of it, and sent word to Barnes to do the best he could with the lot. This message did not revest the title in Barnes. Barnes sold the land to the complainant and made no conveyance. He simply transferred to them the mortgage taken from Wade. All the rights they acquired by the purchase and transfer of the mortgage, was the right to foreclose the mortgage; and the foreclosure would not vest in them the title. The land must be sold, and the proceeds of the sale would be the property of Wade, subject to the mortgagee’s or his assignee’s right to be paid the amount of the mortgage debt. The balance would be Wade’s absolutely. The report of the Sheriff to the Court would be that he had so much money in his hands, raised on the sale of the defendant’s property. The rights of contesting creditors to the fund in Court, would, under our Statute, depend on the dates of their respective liens. Against this statute, I do not think a Court of Equity can relieve.
But if this was a case of a vendor’s lien, and our Statute *420interposed no impediment, the case in Wheaton, already referred to, settles, that such a lien cannot be enforced against creditors.
I think, therefore, that the judgement of the Court below ought to be reversed.