344; Walker vs. Priswick, 2 Ver., 622. And it seems that such a lien, upon goods, is a personal right which cannot be transterred to another. Danbegny vs. Du Val, 5, 7 R., 606.

It is indispensably necessary to the existence of such a lien, that the parties should stand in the relation towards each other of vendor and vendee of real estate, the purchase money of which has not been paid. The pure relationship of debtor and creditor, or of borrower and lender, is incompatible with the existence of this species of liens.

In the case of the purchase of real estate, this lien arises as an incident thereto, and can only exist together with it. In the case of a loan, the debt is the principal, and the bond, note or mortgage are only the accidents to it. A purchase may be made or a debt may exist without an equitable lien or a bond, note or mortgage as its incidents. A bond, note or mortgage may, however, be executed, as being, in itself, the creator, evidence and incident of a debt; but a vendor's lien cannot be thus made and executed apart from, and independently of a contract of purchase. It is an incumbrance on land which can only be held by a vendor or his legal representative; and though assets may be marshalled, so as to put a vendor altogether upon his equitable lien, for the benefit of other creditors, yet, no third person can, as assignee of the vendor, derive any benefit from such lien, nor can it, like a bond or mortgage, be assigned, because it is not expressed in writing, or in any separate contract, but exists only as an inseparable equitable incident of the contract of purchase; and, as is seen from the above quotation from Judge Story, is only to be raised by construction of equity, in favor of the vendor only. "This lien would, no doubt, pass, on the death of the vendor, to his representatives, but it is not the subject matter of sale and transfer by contract. Keith vs. Horner, 32 Ill., 526. "Such a lien is not assignable, even by express language." Richard vs. Seammy, 27 Ill., 431; Keith et al vs. Horner, 32 Ill., 526.

A vendor's lien being founded upon an implied trust,

between the vendor and purchaser, we are satisfied that the law does not authorize the vendor to transfer this lien with the note taken for the purchase money, even though he expressly professes to do so, and we are not inclined to make a law to enable him to so do. The decree must be affirmed.

MILLER V. NEIMAN AND WIFE.

CLOUD UPON TITLE-To remove, what bill must allege.-A party, when asking for equitable relief in removing clouds from his title, must be in actual possession of the lands, or they must be unoccupied or not in the actual possession of another; otherwise his remedy is complete at law.

APPEAL FROM DREW CIRCUIT COURT.

HON. HENRY B. MORSE, Circuit Judge.

Garland & Nash, for Appellant.

English & English, for Appellee.

BENNETT, J.-This was a bill, in chancery, brought by Miller against Neiman and wife, in the Drew Circuit Court, to quiet title to lands. The cause was heard on the bill, answer and agreed statement of facts; the bill was dismissed for the want of equity, and Miller appealed to this court.

Miller was a non-resident and never in actual possession of the lands. They were sold by the collector of Drew county, on the 31st of May, 1867, for taxes of 1866, and purchased by German C. Berry.

The only evidence adduced on the hearing, as appears by the transcript, was an agreed statement of facts, which statement affords no proof whatever as to which party was in

actual possession of the land at the time of bringing the bill. If it is clearly shown that the defendant was in actual possession of the land, the plaintiff has an adequate and complete remedy at law. The bill does not allege that fact, but on the contrary does say, "that said lands are wild and unimproved and have never been held in actual possession by. * * * * any one but that he had constructive possession of the same."

The answer of the defendant states that, after the sale and purchase of the lands, as mentioned in the bill," the said German C. Berry took possession of them and exercised ownership over them and paid taxes on the same up to the time of his death, and that the said Stephen Berry, after the death of the said German C. Berry, took possession of said lands and held them up to the time of his death, after which defendants have held and possessed said lands, and still hold and possess them," in actual possession, and positively denies that the plaintiff has any right, claim, title, or possession in or to said lands.

A party, when asking for equitable relief in removing clouds from his title, must be in actual possession of the lands, or they must be unoccupied, or not in the actual possession of others; otherwise his remedy is complete at law.

In the case before us, the complainant alleges these lands are "wild and unoccupied," but the defendant positively denies that fact and puts the "onus probandi, upon the complainant to prove this allegation, which has not been done. Consequently the court below did not err in dismissing the bill.

KIERNAN v. BLACKWELL, Adm'r., et al.

EQUITY PRACTICE-When demurrer considered waived.-Where a cause has
proceeded to final adjudication, without judgment of the court upon demur-
rer filed in same, the demurrer will be considered to have been waived.
EXECUTORS What interest in intestates' lands.-The executor has no interest
in the lands of an intestate or control over them, save as it may be necessary
to subject them to the payment of general creditors.
PURCHASERS-When not relieved in equity.-When the purchase money or

notes, given for the purchase of land, have not been fully paid off, the purchaser can have no relief, in a court of equity, in seeking a decree for title. FORECLOSURE—Who necessary parties. It is error to render a decree for the

sale of lands, or foreclosure for the purchase money, without making the heirs at law of the deceased vendee, parties defendant.

CHANCERY-Should notice defect in parties.—Where the heirs at law of a deceased vendee are not made parties defendants to a bill seeking a sale of land or foreclosure for purchase money, the court below, on its own motion, should notice this defect of parties; and this court, in chancery, will protect the estate and heirs at law, who are not made parties, whether the objection is or is not made.

APPEAL FROM JEFFERSON CIRCUIT COURT.

HON. WILLIAM M. HARRISON, Circuit Judge.

Watkins & Rose, for Appellant.

Bell & Carlton and Garland & Nash, for Appellees.

WARWICK, Spec. Sup. Judge.-At the spring term 1867, of the Jefferson Circuit Court, Milley E. Blackwell, administratrix of the estate of James J. Blackwell, deceased, filed her bill of complaint, in chancery, against Bedelia F. Kiernan, Peter A. Finnerty and Anthony A. C. Rogers, complaining and representing that, on the 23d of December, 1859, her intestate purchased of said Bedelia F. Kiernan, certain lands, lying in the county of Jefferson, for which, by written contract, he was to pay her 113,000 pounds of cotton; that he executed to said Bedelia F. his four several bonds, in which he bound himself to deliver to her, or her agent, in the town of Pine Bluff, on the first day of January, 1861-2-3 and 4,

Kiernan v. Blackwell, Adm'r, et al.

[DECEMBER sixty-three averaged sized bales of cotton, of the aggregate weight of 28,350 pounds. That by written contract, under seal, between said intestate and said Bedelia F., a lien was retained on the lands for the purchase money, "as will more fully appear by reference to a certified copy of the deed, signed by Bedelia F., and the said James J. Blackwell, herewith filed and marked Exhibit "A," which exhibit is not in the record. The bill further avers that the first three writings obligatory were fully paid off and discharged by her intestate, and herself as the administratrix; that the fourth is in the hands of A. A. C. Rogers.

The bill then charges that the land did not belong, in point of fact, to Mrs. Kiernan, but to Peter Finnerty and were held by her to defraud the creditors of said Finnerty, and that said Finnerty pretended to, and did act, and was the agent of Mrs. Kiernan, and had power of attorney to receive the said cotton for her.

We do not conceive said Finnerty as having any interest in this suit, or a necessary party, and is not to be considered, except as the record shows him to have been the agent of Mrs. Kiernan.

The bill avers that the said Peter A. was the person from whom, on final payment, a deed should have been received, but does not aver any legal title in him to convey. The complainant avers payment of the last or fourth bond to Finnerty, as agent of Mrs. Kiernan, by receipt of cotton, at the gin house of complainant. The prayer of the bill is, that the bond in the hands of Rogers be cancelled, and that the said Kiernan, Finnerty and Rogers be divested of all title and interest in said lands, and the same be vested in the heirs of said Blackwell deceased, and other proper relief. At the fall term Messrs. Bell & Carlton, attorneys, entered the appearance of all of said defendants, (Kiernan, Finnerty and Rogers,) and filed a demurrer to the bill. This cause having proceeded to a final adjudication, without judgment of the court on demurrer, it must be considered to have been waived and cannot now be considered by this court.