I. The parol contract for the exchange of farms being accompanied by the delivery of actual possession of the lands exchanged, in accordance with the contract, became valid and binding. Rev. of 1860, §§ 4007, 4008. The subsequent disagreement in relation to the payment or manner of securing the balance due on the Cavanagh mortgage, could not, at the election of a third party, defeat or rescind the contract. The plaintiff having taken full and actual possession of the lands acquired from Lucas by the exchange, before the defendant Thompson recovered his judgment against Lucas, such possession was notice to Thompson of plaintiff’s title, and of the facts connected therewith.
II. Under our statute a judgment is a lien upon all interests of the judgment debtor in real estate, legal and equitable. Rev. of 1860, §§ 4105, 29. Y7hat is an interest *508in real estate, and how a lien upon such interest may be enforced, are questions which are not settled by statutory enactment. We must look, therefore, to legal principles for their solution. By the terms of the contract of exchange, there was to be paid by the plaintiff, the sum of nine hundred and fifty dollars boot-money, one hundred dollars only of which was paid at the time of the trade; for the balance due, the judgment debtor, Lucas, had a vendor’s lien upon the real estate given by him in exchange. In one sense it is true that Lucas had thereby an equitable interest in that real estate; yet it is not true that he had such an interest as could be levied upon and sold under execution without other proceedings. A judgment creditor, in such case, is in no better situation than his judgment-debtor, and can have no greater rights. The judgment debtor had no interest in that real estate, except the right to subject it, under his vendor’s lien, to the payment of the unpaid purchase (or boot) money; and that vendor’s lien could exist only in favor of the person holding the claim or debt for the purchase-money, for the payment of which the lien attached. It would seem to follow, therefore, as a legal sequence, that the judgment creditor must first become entitled to demand and receive the purchase-money, before his right to enforce the lien for its payment can arise; this can only be done by process of garnishment or equitable proceedings. The interest of the judgment debtor in the real estate in this case was not real estate, it was personal estate; and in case of his death, it would have descended to his administrator, and not to his heirs. While it is true that under our statute a judgment is a lien upon that interest, yet such judgment is not of itself any notice to the person owing the debt to the judgment debtor, and if such person actually pays the debt without other notice of the lien, such payment will extinguish the interest, as well as the lien attaching to it. Smith v. Gage, *50938 Barb. Sup. Ct. Rep., ; Buchan v. Sumner, 2 Barb. Ch., 165; Winns v. Morse et al., 15 Ohio, 568; Courtney v. Carr, 6 Iowa, 238 ; Cook & Sargent v. Dillon et al., 9 Id., 407.
Tbe evidence in this case shows that by the terms of the contract for exchange of farms, the boot-money was to be applied, towards the extinguishment of a mortgage held by Cavan agh upon the Lucas farm, which was traded to plaintiff; and that it was so applied. . The plaintiff, by the contract, acquired the right to have the boot-money thus appropriated, and the judgment lien must be held subject to the equitable rights of the party in the actual occupancy of the land under a contract of purchase from the legal owner when the judgment was rendered.
III. The recital in the mortgage executed by Lucas to the plaintiff, to wit: “on certain lands this day sold and conveyed by said Lucas and wife to said Baldwin,” &c., cannot operate as an estoppel. The mortgage was not executed upon the lands in controversy in this suit, and does not form any part of the plaintiff’s chain of title; and a recital in a conveyance under which a party claims title cannot operate by way of estoppel, so as to prevent the party from claiming under an older conveyance, or paramount title. Carver v. Jackson, 4 Pet., 83; Crane v. Lessees of Morris, &c., 6 Id., 611.
IY. It was not necessary that Lucas should be made a party defendant in this cause, in order to a complete determination of the rights of the plaintiff; and the rights of the defendant, Thompson, to the land in controversy in this suit, can be fully and completely determined without making Lucas a party. The rights of the defendant, Thompson, which may accrue to him by reason of the determination of this cause, can be as well and as safely adjudicated upon motion, or suit in equity between him and Lucas, as in this case. Under the provisions of section 2765 of the *510Revision of 1860, it was also competent to hear and determine the cause without requiring Lucas to be made a party.
Y. After giving to the testimony offered tó be shown by the witness, Mr. Ransom (but which was rejected), its full weight and consideration, we are unable to see wherein it could affect the final determination of the case, and without deciding as to the correctness of the ruling of the Court, in excluding his testimony, the judgment of the District Court is
Affirmed.