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Colquitt vs. Thomas et al. and to purchasers having notice that the purchase money is unpaid. The equitable principle is made available, by an implied trust. This lien attaches upon the lands, for the whole, or a part only, of the purchase money. If the whole is due, it attaches for the whole-if a part only, then only for that part. It may be waived by an express agreement between the parties, or without an agreement; as, for example, when the vendor takes independent security for his purchase money, and relies upon that security, When, and under what circumstances, this lien has been waived or displaced, is always an embarrassing question, and not clearly settled by the authorities. So fruitful of litigation is this question, that Lord Eldon expressed, upon one occasion, a doubt whether it would not be better to have held, that the lien should exist in no case, or to have laid down the rule the other way, so distinctly, that a purchaser might be able to know, without the judgment of a Court, in what cases it would, and in what it would not, exist. Mackreth rs. Symmons, 15 Vesey, 340. These general principles being held in the mind, the solution of the question of practice we are to consider, will become the easier. Story's Eq. Jurisp. $$789, 1217, 1218. 4 Kent, 151, '2, '3, '4. 6 Johns. Ch. R. 403. i Ch. Cases, 39. 1 Atk. 572. 3 Ib. 273. 15 Vesey, 329. 2 1b. 622. 9 Ib. 209. 1 W. Bl. R. 150. 1 Johns. Ch. R. 308. 1 Sch. f. Lefr. 132. 7 Wheat. 46. 10 Peters, 625. Sugden on Vendors, ch. 18, 91.

To assert this lien, it is necessary, in England, to go into Chancery. So, also, it has been considered and held in this State. Can it be set up, in an issue founded on a claim? We consider that it cannot, without a departure from a practice long acquiesced in—without a violation of the necessary rules of pleading, and without an abandonment of principle. Our proceedings before a Court of Law, upon claims, are sui generis, and partake of an equitable character. So far, however, from deriving from that fact an argument in favor of this new practice, I derive therefrom, the reverse inference. If, in a special case, the Legis. lature has thought fit to clothe a Court of Law with equitable powers, the jurisdiction is a special grant, and is to be confined to the cases in which it is authorized. We have a Court of Chancery, distinct from a Court of Law, differing from it in the principles upon which its jurisdiction is founded in its mode of procedure-and in the relief which it affords. Until the Legisla


Colquitt vs. Thomas et al. ture shall blend them into one, and obliterate all these distinctions, for my own part, I shall hold the two Courts, with unswerving strictness, to their respective spheres. A grant of equitable powers, in a specific mode of procedure, so far from drawing with it other equitable powers, upon approved principles, excludes all others. Ex necessitate, the trial of a claim is, quasi, an equitable proceeding—not made so expressly, by the Legislature, but becoming so in the inherent necessity of the case. According to the usage of the Courts, and the full current of authority, equitable liens can be enforced only in Equity, by appropriate pleadings, by bringing all the parties interested before the Court, and by a decree which protects the interest of all parties : and in all this, the law is profoundly wise. In this case, what is the issue made upon the record ? The plaintiff having ordered a levy upon the land, the purchaser puts in his claim; the Sheriff returns the papers to the Superior Court, and there issue is joined. What is that issue? It is expressed on this record, in these words :

" And now, at this Term, comes the plaintiff in execution, and alleges that the property levied upon by his fi. fa. aforesaid, is subject thereto; and for this truth, he tenders this issue, and puts himself upon the country.

" W. T. COLQUITT, Plaintiff: “And the claimant denies that the property is subject, and doeth likewise.


Attorneys for claimant."

The record shows no more than this. Upon this dangerously brief

and pregnant issue, what is to be tried ? The law and the facts as to the liability of the property to the execution. The plaintiff asserts that the property is subject to his execution; by which he means to say, that it belongs to the defendant in execution, and, therefore, the lien of his judgment attaches upon it. The claimant denies this upon the record, and the war begins pell-mell. If it should appear in proof, that the plaintiff's judgment is older than the claimant's title from the defendant in exeColquitt os. Thomas et al. cution, the issue might, or might not, be a simple one. Prima facie, the property belongs to the defendant at the date of plaintiff's judgment, and the lien attaches, and the claimant is driven to shew whatever he can shew, to remove the presumption, and to displace the lien. But if the title to the claimant be older than the date of the judgment, (and that is the fact here,) then the plaintiff may proceed to shew, notwithstanding that fact, that the property is the property of the defendant in execution, and liable to his judgment. For example-he may shew that the conveyance of the property, by the defendant in execution, was with intent to delay, hinder and defeat him, as a creditor, and that the claimant had notice of such intention, and claim thereby the protection of the Stat. 13 Elizabeth. All these things, and more, may be gone into, apon the brief issue stated. Well might a stranger to our Courts demur to our claim laws, and suggest, that, by appropriate pleadings, these serious issues should appear upon the record. But I advert to them now, to show, that the question made is, whether the property levied on is the property of the defendant, and liable to the lien of the judgment. The plaintiff's burden is to establish that fact; he goes upon the assumption that it is true; and however the issues may multiply, and whatever may be the wanderings of the evidence, still that is the point of departure, and to that it is obliged to return. Now, if this is the issue between the parties, then I say neither by the pleadings, nor upon principle, is the vendor's lien involved. Pleadings, to set forth the vendor’s lien, there are none-in fact, no pleadings of any kind, except the informal issue which I before transcribed. Nothing is, in truth, put in issue by the record, in a claim case, but the liability of the property to the plaintiff's judgment. The title of the claimant is tried, but no issue is made on the record about that. It is a feigned issue feigned, albeit it involves title to lands. That the sole legal issue is the liability of the property to the judgment, is proven by the verdiet. The finding is single : “We, the Jury, find the property subject"--or, “We, the Jury, find the property not subject ;” and by the judgment rendered on it, usually, nothing more, when the finding is for the plaintiff, than a simple order that the execution proceed. Our Act of 1799 requires that the plaintiff's cause of action, and the defendant's answer thereto, shall be plainly, fully and distinctly set forth. Either, when the


Colquitt vs. Thomas et al.

vendor comes into Court to establish and enforce his lien, he ought to be required to set it forth fully, plainly and distinctly, or the Statute which requires this to be done is flagrantly disregarded. The same is true of the claimant's defence. The defendant in execution is entitled 10 be heard against the vendor's lien-he may have waived it-it may be, in part or in whole, satisfied-or he may have taken other security. In a bill, the plaintiff's cause of action would be set forth the defendant in execution, the claimant, and intermediate purchasers, if any, could be made parties. Their answers would meet the whole case made by the bill the equities between all the parties could be settled by a single decree, and the whole case would appear of record. According to the proposition of the plaintiff in error, all these matters of claim and defence are to be tried by engrafting upon the claim issue another, or other wholly independent issues. This is all to be done by parol, and the absurdity of the whole thing is conspicuous in this, that the record shows no trace of all this vitally serious litigation. The lien of the plaintiff's judgment is one thing—that of the vendor another and different thing. The judgment is founded on a contract, and its lien is. created by Statute. The plaintiff is a creditor, both before and after judgment. The vendor's lien is an equity, which springs out of the sale, but does not exist by contract. He is the cestui que trust of his purchaser. The plaintiff's lien is fixed by a judgment, before he moves against the claimant-the vendor's lien is to be ascertained by a judgment or decree, in the issue which he makes with the purchaser, else he can never sell the land. The judgment is conclusive-it cannot be inquired into. The vendor's lien is assailable, and may be resisted. The principles involyed are different. Under the Statute of Elizabeth, for example, notice to the claimant that the purchase money was unpaid, is only a badge of fraud. Such notice, when the vendor's lien is to be set up, is, per-se, conclusive against the claimant's title ; and this is the legal proposition which makes this new mode of asserting the vendor's lien, so important in this case. If it were allowed, it is clear, that the claim trial would become inextricably embarrassed'; the most important questions that are made before Courts of Justice, would be tried without pleadings and without a record, and the rights of parties would be greatly endangered. Much more might be said in relation to this matter.

Colquitt vs. Thomas et al.


We think, that neither the vendor's lien, nor any rules or principles of law in relation to it, have any application to this case.

[2.] In opening his charge to the Jury, the presiding Judge said, “that he wished counsel to take notice of his charge, for be supposed the case would be taken up, and if he erred, he could be corrected, and if the Jury found contrary to evidence, they could be correeted." The latter part of these remarks>those that relate to the Jury—is assigned for error. We do not think that the remark complained of is ground of error. In making such a remark, either directly to, or in the hearing of, the Jury, we canpot say that any rule of law is violated. But the propriety and expediency of such a remark is not at all questionable. The finding of the facts is, by law, the duty of the Jury; and it is also the privilege of the parties, that they shall find the facts. This obligation, and this privilége, ought not to be interfered with, either directly or indirectly, by the Court which tries the cause, or by this Court. Whilst it is true, that the Court is clothed with power to grant new trials, upon the ground of a finding contrary to evidence, yet this power does not rest upon any right in the Court to try the facts-it does not become thereby a trier of facts; but it is given to the Court, that any flagrant abuse of the trial of the facts, by the Jury, may be corrected. Such abuse is corrected, not by the Court taking upon itself the correction of the errors committed by the Jury, but by staying its judgment, and awarding another trial, before another Jury. The exercise of this power is confined to exceedingly narrow limits for the obvious reason, that whilst a power to reJieve, against a flagrant abuse of the exclusive, function of the Jury in the trial of facts, is necessary and proper, yet they are the sole legally authorized tribunal to pass upon the facts. Trial by Jury, by the Common Law and by the Constitution of this State, is, of all other rights of the citizen, the most intangibly sacred. To keep it so, is one of the highest obligations of all the officers of the Government, and more especially of judicial officers. I peed scărcely say, that we have no power whatever over the facts of the case. A writ of error does not lie to this Court, upon the verdict of a Jury. A writ of error will lie upon a rule for a new trial, upon the ground, that the Jury found contrary to the evidence; but in that case, it grows out of alleged error in law, in the Court below, in refusing or granting the rule. And one

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