delivered the opinion of the court.
The result of all the decided cases, and of all the elementary disquisitions, which the counsel of the complainant has, with much labor and learning, laid before us, is,so far as they have any bearing upon the question raised by the demurrer, that in the first place a vendor is presumed to intend to retain his lien upon the conveyed premises for the payment of the purchase-money, and the circumstances to manifest the non-existence of such intention, must be shown by the vendee; and, truly, that a note given for the purchase-money, with the endorsement of a third person, is evidence that the lien of the vendor is waived and abandoned.
But we regard it as evidence only, which may be repelled on the part of the vendor.} We do not think, however, that the recital in the deed, to which the draughtsman of the bill seems to have attached'so much importance, will have that effect; for if it proclaims to all who may read the deed, that the consideration-money has not been paid, it informs them, also, that a security has been taken therefor. But as the plaintiff in, his bill avers, that, notwithstanding such security, it was his purpose and intention to retain his lien, (which purpose and intention, if he have competent proof thereof, we think he may show upon the trial,) we are of opinion that the defendants should answer. We regret to be constrained so to rule in the case, because we think it very probable, and almost certain, that the chancellor, upon the trial of the cause, will arrive at the same result to which he came on the argument of the demurrer.