The opinion of the court was delivered,
by Lowrie, C. J.C. L. Ward intended that his deed to Graham & McBirney should be or become a complete conveyance of the land, and of course he intended the consequence that his own liens upon any part of the title should be thereby discharged. It was not the intention, but the fact of complete conveyance that was to have that effect. The fact failed, and therefore the effect does not arise. The conveyance did not pass the whole title, because of the outstanding equitable title of F. A. Ward, which had become subject to liens, the first of which was in favour of C. L. Ward. This interest continued, and of course the liens on it continued; and instead of it, Graham & McBirney held C. L. Ward’s covenant of warranty. It was not title, but covenant for title, which they had actually got, and the continuance of C. L. Ward’s lien was not inconsistent with that, but might be in aid of it. His lien was not upon the legal title which he had held, and had conveyed to Graham & McBirney, but on the equitable title, which he was bound to remove. The enforcement of his lien against this can have no effect upon the title of Graham & McBirney, and they cannot be parties to the proceeding; for it is only against the equitable title, which, so far as lien-creditors are concerned, belongs to F. A. Ward, and not to them.
Then, has 0. L. Ward been actually paid his lien? We think *336not; and in saying so, we adopt the auditor’s report of the facts? but not his view of their legal effect. C. L. Ward was to have, and had a lien on the goods purchased, in order to obtain payment out of them, but he did not obtain it. He had means designed to secure payment, but never payment itself. The goods were not his; no part of them had been sold to him in discharge of his claim; but he had a lien on them all to secure it. But they did not secure it.
The sale of the land was not C. L. Ward’s sale, but E. A. Ward’s, though effectuated by means of a conveyance of C. L. Ward, because he held the legal title. The goods obtained by that sale were not C. L. Ward’s goods, but E. A. Ward’s, to be sold at his profit or loss, and the proceeds to be his ; though, by virtue of a lien in favour of C. L. Ward, through the possession of a third person, those proceeds were to be applied first to certain debts of E. A. Ward, including those owed to C. L. Ward. No one says that C. L. Ward took the goods as payment, or that he got his pay out of them, or that he agreed to discharge his liens, and we do not regard either of these as the necessary legal effect of his acts.
The subsequent lien-creditors have no equity against C. L. Ward, arising out of his acts. No act of his affected their liens. He was striving to get all the liens paid, but did nothing to weaken those that are here complaining. He could not do it. He failed in his efforts, without either injuring or benefiting them, and they have no equity to put him in a worse position for his own claims, because of his want of success. And as the goods were delivered in consideration of an engagement for a full title, discharged of liens, they can have no claim that the transaction shall be regarded as an equitable or constructive discharge of C. L. Ward’s lien, while they continue to insist on their own. They must show that the lien was in fact and in law discharged. They have not done this.
Decree affirmed at the costs of the appellants.