Opinion by
The witness upon whom appellee relies to show notice to the appellant of his equitable right to a part of the proceeds of the note in controversy, must have left the chancellor in doubt as to his right to enforce a lien by reason of a contract that the ap-pellee himself seems never to have complied with, and upon the performance of which his right to this equity depends. Although the notes taken by Collins upon a settlement of the claims against his father, refer to the judgment or action upon which the settlement was based (this proceeding showing the assignment to the appellee), still the execution of these notes by the heirs of Collins, directly to James Collins, and his holding them for nearly one year, connected with the effort on the part of the appellee to purchase them, would at least, so far as third persons are concerned, indicate a consent on the part of the appellee to the action of appellant in the premises. As between 'Collins and the appellee, we are disposed, however, to adjudge that the latter’s equity still exists, as there is no proof whatever showing that t'he appellee has been repaid, by any of the parties, the money advanced or paid by him to Miller as the surety of Gulp & Collins. It is alleged in the petition that the proceeds of these very notes were invested in the house and lot conveyed to the wife of Collins, and if so, even if there had been no evidence