Under the facts stated the law of this case is with the plaintiff. In his purchase from Brown the plaintiff acquired both the equitable title and the possession of the property in question, and this was a higher and a better right than the defendant obtained under his levy and purchase at sheriff’s sale, for both levy and purchase were subsequent in point of time to the plaintiff’s purchase.
Again, whilst it is true that the defendant, in obtaining the ownership by assignment of one or more of the notes which Brown had given in the purchase of the saw-mill premises, acquired with them, as an equitable incident, the vendor’s lien which Hamilton & McLaughlin had, still such lien availed him nothing in strengthening his title to the *152property in eontroyersy, for the reason that he had not* resorted to the proper proceedings to enforce and have the same established. And we may add, moreover, that even if he had adopted some equitable proceeding for this purpose and procured the lien to be recognized, it could only have been declared operative upon and established'against the realty. It will be observed that according to the agreed statement'of facts both parties considered and treated the property in question as personal property. If then the defendant’s inoperative or unestablished lien did not have the effect to carry his title back to the date of Brown’s purchase or behind the plaintiff’s purchase of Brown, what did he get by his levy and sale of .the property under execution ? Simply nothing; for Brown had before such levy parted with whatever interest he had in the property to the plaintiff and that, too, to satisfy a claim which by the terms of the original agreement was to be a lien upon the property. Not only so, but by making such levy and taking the property out of the possession of the plaintiff he became a trespasser and is amenable to plaintiff for the value thereof. It was stipulated that if the title should be found in the plaintiff he should have judgment for $850 and cost. Such a judgment will now be rendered in this court and the one below
Reversed.