Hall’s ex’rs v. Click, et al. 5 Ala. Rep. 363, is unlike the present. In that case, the plaintiff’s testator had received the note of a third person, in part payment of property, without indorsement, and with the understanding that the party transferring it should not be liable for its payment. The consideration of the note was laud, which the party transferring it had sold to the maker. It was held, that a bill to enforce the equitable lien could not be maintained by the plaintiff. We there place our decision upon the ground that the contract under which the testator became the proprietor of the note, was not such as to transfer the lien, and as the payee had stipulated that he should not be chargeable with the maker’s default, it could not be enforced by his transferee.
In Roper v. McCook, and another, 7 Ala. Rep. 318, it was explicitly decided, as the leading question in the cause, that the equitable lien of the vendor of land will pass to his as-signee of a note taken from the vendee, in part payment of *345the purchase money, and will not be lost, though the assignee neglect to sue the maker for so long a time as to discharge the assignor from liability upon his indorsement. So, it has been held, that the lien of the vendor for the purchase money, may be enforced, not 'only against the vendee, but his as-signee, with notice, and this although the vendor may have conveyed the title in due form. To authorize the assertion of the lien in equity against a derivative purchaser, it is not necessary that the vendor should have employed a legal remedy without success. [5 Porter’s Rep. 452; 3 Ala. R. 302 ]
The evidence very satisfactorily establishes the sale of the land by Richards to P. duattlebum, and the making and delivery of notes, such as those the complainant put in suit,‘ and the fact that they were in his possession, and judgments have been rendered in the name of Richards for his use, in the absence of opposing proof, show, prima facie, that he was their rightful proprietor. Assuming that the land in question was the property of Richards, and was sold upon his own account, and still, we think, the complainant is entitled to the relief he seeks. In this view, it must be presumed that the complainant received the notes from their payee, either in payment of a pre-existing debt, or a debt simultaneously created ; and upon either hypothesis, Richards would be liable for the original debt, when the term of credit stipulated by the notes, expired. [Chitty on Bills, 9, Am. ed. 195, etpost.] As to Richards then, the lien was not lost, and we think silently as an incident to the notes, it passed to the complainant.
We have thrown out of view every thing that is alledged in the bill, going to show a resulting trust as a gainst Richards ; because no relief is prayed upon the case in that point of view.
Our conclusion is, that the decree must be affirmed.