In support of the statement last made, three cases in ejectment are cited. Undoubtedly, in an action of ejectment, plaintiff prevailing, all persons entering under the defendant, pendente lite, may be dispossessed under the judgment. Freem. Judgm. § 171. But we are cited to no authorities holding that this may be done under a decree like that in Powell v Powell, or that Mrs. Powell could have sustained ejectment against Campbell after obtaining her decree against Powell. Campbell had the legal title and possession. She had only an equitable right to both. The original equity doctrine was that a decree was not, of itself, a legal title, and did not transfer title. 3 Pom. Eq. Jur. § 1317. But in many of the states statutes have been passed providing that a decree shall operate as a conveyance. "When the object of a suit is to compel the conveyance of the legal title by the defendant, and the decree does not require a sale, the title will not pass until the deed is executed, unless it be provided, as has been done in some of the states, by statute, that the decree itself shall operate as a conveyance." Miller v. Sherry, 2 Wall. 248.

It is probable that plaintiff might have made Campbell a party to the divorce suit after the conveyance to him from Powell, if she was aware of the sale, a fact not disclosed by the record. Still, was she not entitled to maintain this action to recover a conveyance by defendant of a legal estate corresponding to her equitable title? 1 Pom. Eq. Jur. § 152. Such actions have been sustained by the most distinguished courts.

In Bishop of Winchester v. Paine, 11 Ves. 199, the court said: "This is not the case of the legal estate acquired during the pendency of the suit, in which instance it might be necessary, in order to avoid it, to have recourse to a new suit.” "Although the maxim is, pendente lite nil innovetur, that maxim is not to be understood as warranting the conclusion that the conveyance so made is absolutely null and void, at all times and for all purposes. The true interpretation of the maxim is that the conveyance does not vary the rights of the parties in that suit, and they are not bound to take notice of the title acquired under it, but, with regard to them, the title is to be taken as if it had never existed." "If, however, the purchaser pendente lite be a purchaser of the legal estate, and not of a mere equitable estate, it may, after the determination of the pending suit, be necessary, in order to compel a surrender of his title, or to declare it void, to institute a new suit against him.” 2 Story, Eq. Jur. § 908, and note 3.

Besides, it is admitted by counsel for appellant that Campbell could have been made a party defendant in the divorce suit, and, if the facts and law warranted it, he could have been made to pass the title to the property in question to plaintiff. The record does not show that plaintiff knew, or had reason to know, of the conveyance from Powell to Campbell, before the trial, or until after it was completed. It is shown by the court's findings that the divorce suit was commenced March, 1886; that during its pendency, March 25, 1886, Powell conveyed to Campbell. But it nowhere appears that plaintiff had any knowledge of the conveyance, or of any facts making it incumbent upon her to make inquiries concerning it, until after trial. The judgment and order appealed from are affirmed.

BATES et al. v. CHILDERS et al.

Supreme Court of New Mexico. January, 1889.)

1. CONTRACT-CONSTRUCTION-CERTAINTY.

In a contract for the sale of an undivided interest in a mine, it was stipulated that a balance remaining due on the consideration should be paid, when the mine was sold, out of the proceeds of the sale; the vendee to repay himself out of the first money realized from the sale money “necessarily laid out for assessment pur

poses," and all the balance of the money received to go to the vendor, until he should receive the amount due him. Held, that the sum promised to be paid was certain.

2. EQUITY-JURISDICTION-REMEDY AT LAW-ENFORCEMENT OF LIEN.

Where a vendor's lien on certain mining interests is sought to be enforced in a court of equity, against an assignee of the property purchasing with knowledge of the lien, it cannot be objected that the plaintiff has an adequate remedy at law on the contract with the original vendee, where the latter is insolvent.

3. VENDOR AND VENDEE-VENDOR'S LIEN-EXPRESS RESERVATION.

An express reservation is not needed to create a vendor's lien.

4. SAME-ENFORCEMENT OF LIEN-PURCHASER WITH NOTICE.

In New Mexico, the lien of a vendor for purchase money can be enforced by his assignee for value, either as against the original vendee, or as against one who purchases from the latter with notice that the purchase money has not been paid. 5. SAME

DECREE.

In an action to enforce a vendor's lien against an assignee for value of the original vendee, personal judgment should not be rendered against the assignee.

Error to district court, Socorro county; W. H. BRINKER, Judge.

Warren & Ferguson, for plaintiffs in error. C. L. Jackson, for defendants

in error.

LONG, C. J. This cause is here on writ of error sued out by Henry D. Bates and George W. Cooke, who are plaintiffs in error. The action was commenced in the court below by William B. Childers and Thomas F. Conway as complainants, making the plaintiffs in error in this court defendants to the bill of complaint in the court below. The bill of complaint is as follows: "TERRITORY OF NEW MEXICO, SECOND JUDICIAL DISTRICT. COUNTY OF SOCORRO-SS.

"In the District Court of Socorro County, New Mexico, in the Second Judicial District.

"To the Honorable WILLIAM H. BRINKER, Associate Justice of the Supreme Court of New Mexico, and Judge of the Second Judicial District of said Territory of New Mexico: William B. Childers, of Bernalillo county, and Thomas F. Conway, of Grant county, in the territory of New Mexico, bring this bill against Henry D. Bates and George W. Cooke, both of Socorro county, New Mexico, and thereupon humbly complaining. Your orators, William B. Childers, of Bernalillo county, and Thomas F. Conway, of Grant county, territory of New Mexico, respectfully represent unto your honor that on or about the 20th day of April, 1883, one John D. Smyth was the owner and possessed a certain mine known as the Imperial mine located and situated in the Magdalena mountains in Socorro county, New Mexico; that afterwards, on the day of, 1883, said John D. Smyth sold and conveyed an undivided one-fourth interest in said Imperial mine to defendant George W. Cooke, of Socorro county, New Mexico; that by the term of said sale from said Smyth to said Cooke that said Cooke was to pay said Smyth the sum of five hundred dollars cash in hand, and the further sum of seven hundred and fifty dollars was to be paid said Smyth when the said Imperial mine should be sold out of the proceeds of such sale, provided that said Cooke was to be compensated for all money necessarily laid out by him for assessment purposes, and then all of the balance of the money received for the above-mentioned one-fourth interest to go to said Smyth, until he should receive the said sum of seven hundred and fifty dollars; that said Smyth was entitled to and at said time of said sale reserved a vendor's lien upon said mine to secure the payment of said sum of seven hundred and fifty dollars unpaid purchase money; that a memorandum of said contract of sale was reduced to writing, and signed by said Cooke, and by him delivered to said Smyth, and the same was duly filed for record in the office of the probate clerk and ex-officio recorder in and for said Socorro county, New Mexico, on the 2d day of May, 1883, and was duly recorded in Book 8, page 218, in the records of said office, and the original of

which said memorandum is herewith filed, and made a part of this bill and marked 'Exhibit ;' that the said John D. Smyth, being at that time and afterwards indebted to complainants, in payment of said indebtedness, on the 25th day of March, 1884, in writing on the back of said memorandum, assigned to complainants the right, title, and interest of him, the said Smyth, in and to said contract, and also assigned the complainants the balance of the purchase money due on account of said fourth interest in said Imperial mine, and the said vendor's lien upon said mine, and authorized the payment of said balance to said complainants; and that on said 25th day of March, 1884, said memorandum of said contract of said sale, with the said indorsement on the back thereof, was again filed for record in the office of the probate clerk and ex-officio recorder in and for said Socorro county, and was duly recorded in Book 10, page 623, of the records of said office, all of which will appear from said Exhibit A;' that one John M. Shaw, now deceased, at one time was possessed of and the owner of the other undivided three-fourths interest in said Imperial mine, but before his decease sold and conveyed the said undivided three-fourths interest in said Imperial mine to defendant Henry D. Bates.

"The defendant Cook on the day of August, 1886, sold and conveyed the above-mentioned undivided one-fourth interest in said Imperial mine, which he had bought as aforesaid from said John D. Smyth, to defendant Henry D. Bates for a large sum of money, more than sufficient to compensate defendant Cooke for all money necessarily laid out by him for assessment purposes, and to satisfy the aforesaid claim of seven hundred and fifty dollars unpaid purchase money, now due complainants, and interest thereon; that said defendant Henry D. Bates is now the legal owner and in possession of said Imperial mine; that prior to the said purchase of said Imperial mine by said defendant Henry D. Bates from defendant George W. Cooke and from said John M. Shaw, deceased, and prior to said defendant Henry D. Bates acquiring any right or title in said Imperial mine, said defendant Henry D. Bates had full knowledge of the fact of the above-mentioned seven hundred and fifty dollars being unpaid purchase money on said Imperial mine, and that it was to be paid to complainants; that since said conveyance of said one-fourth interest in said Imperial mine from defendant Cooke to defendant Bates, both said defendants Cooke and Bates have promised to carry out said contract of sale as witnessed by the said Exhibit A, and have agreed that said defendant Bates should pay to complainants the said sum of seven hundred and fifty dollars unpaid purchase money, as aforesaid, and satisfy complainants' just demand and lien therefor, but said defendant Bates has failed, and still fails, to pay the same, though it has long since been due and payable; that defendant Henry D. Bates has paid part of the money he agreed to pay for said one-fourth interest in said Imperial mine to defendant George W. Cooke, instead of paying the same to your complainants, after recompensing said defendant Cooke for the money said Cooke necessarily laid out for assessment purposes; that the amount of the money so paid to said defendant Cooke by said defendant Bates was more than enough to recompense said defendant Cooke for money necessarily laid out by him for assessment purposes, and to satisfy the said claim for unpaid purchase money now due complainants, and that there is still due from said Bates on account of the aforesaid purchase of said one-fourth undivided interest in said mine from said Cooke by said Bates a sum of money more than sufficient to pay and satisfy said sum of seven hundred and fifty dollars and interest thereon, being unpaid purchase money on said one-fourth interest in said mine as aforesaid; and that said defendant Cooke is insolvent. "For as much, therefore, as your complainants are without remedy in the premises, except in a court of equity, and to the end that the said Henry D. Bates and George W. Cooke, who are made parties defendants to this bill, be required to make full and direct answer to the same, but not under oath,

the answer under oath being hereby waived, and more specially they may answer and set forth-First, the consideration for the said sale of the aforesaid one-fourth interest in said Imperial mine from defendant Cooke to defendant Bates; second, the amount of money necessarily laid out by defendant Cooke for assessment purposes on the aforesaid one-fourth interest in said Imperial mine; third, the amount of money paid by said defendant Bates to or on account of said defendant Cooke, as a part of the consideration from defendant Bates to defendant Cooke, for said one-fourth interest in said Imperial mine; fourth, the amount of money now due from said Bates on account of the purchase by him as aforesaid from said Cooke of the undivided one-fourth interest in said mine. And to the further end that an account may be taken in this behalf under the directions of the court, that your complainants may be decreed to be entitled to a lien upon the said premises for the amount due your complainants as unpaid purchase money as aforesaid, and interest thereon; and that the said defendant Henry D. Bates may be decreed to pay your complainants the amount so found to be due, by a short day to be fixed by the court, and that in default of such payment the said premises may be sold as the court shall direct to satisfy said amount and costs; and that your complainants may have such other and further relief in the premises as equity may require and to your honor shall seem meet.

"May it please your honor to grant the writ of subpoena in chancery directed to the sheriff of said county Socorro, commanding him that he summon the defendants Henry D. Bates and George W. Cooke to appear before the said court on the first day of the next November term thereof, to be held at the court-house in Socorro, in the county of Socorro aforesaid, and then and there to answer this bill.

“C. L. JACKSON, Solicitor for Complainants.”

The defendant Henry D. Bates was duly served with process, but, failing to file answer, the bill was taken as against him as confessed for want of such answer. George W. Cooke, however, appearing in said court, filed a demurrer to the bill of complaint. The court overruled the demurrer, and that action is assigned for error here.

It is contended by plaintiff in error in argument that there is no equity in the bill, because the plaintiffs have a clear and adequate remedy at law on the contract executed by Cooke to Smyth at the time of the purchase of the mine, and because complainants are assignees of the contract, and not the vendors of the mine, and for the further reason that no vendor's lien was reserved by the seller at the time he sold the mine. It is averred in the bill that Cooke is insolvent, so as a personal judgment against him would be fruitless, and equity would not remit a complainant to a fruitless suit at law to procure a judgment where it is admitted that such a proceeding would be barren of results. It is only when the party has an equally efficient remedy at law that equity will require him to go there for his relief in the first instance. It cannot be said that a judgment which cannot be collected would be equally as efficient a remedy as a decree establishing a lien upon a piece of property amply sufficient to make the amount of the judgment.

The contention, that no “vendor's lien was reserved by Smyth upon the mine at the time of the sale," raises the question whether any such a reservation is necessary. If so, then the vendor's lien is not one which arises out of the transaction, but only becomes such when the lien is expressly reserved. 2 Story Eq. Jur. § 1218, defines the true character of the vendor's lien: "This lien of the vendor of real estate for the purchase money is wholly independent of any possession on his part; and it attaches to the estate as a trust, equally whether it be actually conveyed or only be contracted to be conveyed. It has often been objected that the creation of such a trust by courts of eq‐ uity is in contravention of the policy of the statute of frauds, but, whatever

*

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may be the original force of such an objection, the doctrine is now too firmly established to be shaken by any mere theoretical doubts. Courts of equity have proceeded upon the ground that the trust being raised by implication is not within the purview of that statute; but is excepted from it. The principal upon which courts of equity have proceeded in establishing this lien in the nature of a trust is that a person who has gotten the estate of another ought not in conscience, as between them, to be allowed to keep it, and not to pay the full consideration money." 2 Jones, Liens, § 1064, states the rule thus: "The lien is presumed to exist in all cases unless an intention be clearly manifest that it shall not exist. * * * Being an incident of the transaction, it is excluded only by facts which show an intention to exclude Want of knowledge on the part of the vendor that the law gives a lien, or a mere secret intention on his part not to claim it, does not affect the right." The true character of this lien is thus shown by authority not to be one created by express contract, requiring for its creation words of reservation, but one raised up as a matter of conscience, as an implication out of the transaction. The lien grows out of the sale, and the duty of the buyer to pay the purchase money. "Where a vendor delivers possession of an estate to a purchaser without receiving the purchase money, equity, whether the estate be or be not conveyed, and although there was not any special agreement for that purpose, * * * gives the vendor a lien on the land for the money. 2 Sugd. Vend. 375. These authorities make it clear there was no need of reservation by the seller to create the vendor's lien.

it.

Plaintiffs in error urge the further objection: "The balance due was not a sum certain, but such amount as might remain of the proceeds of a future sale by Cooke after deducting Cooke's expenses for assessment work, not exceeding seven hundred and fifty dollars." This contention is not well sustained when the terms of the written promise to pay are considered. The instrument of sale contained the promise to pay as follows: "This is to certify that whereas John D. Smyth, of Socorro county, New Mexico, has this day sold and conveyed to me one-fourth interest in the Imperial mine, located in the Magdalena mountains, in the county of Socorro, for the sum and price of twelve hundred and fifty dollars, five hundred dollars of which I have paid cash in hand, the remaining seven hundred and fifty dollars to be paid when the mine is sold out of the proceeds of the sale; that is to say, I am to do the necessary work on said one-fourth interest to keep up the assessment until patent is obtained, or the mine sold, and out of the first money realized from sale I am to repay myself the money necessarily laid out for assessment purposes, and then all the balance of the money received for this one-fourth interest to go to said John D. Smyth until he shall receive the seven hundred and fifty dollars then due him. GEORGE W. COOKE." In this contract $1,250 is the price named for which the one-fourth interest was sold. That represents the purchase money, and is a sum certain. Of that amount $500 was paid in cash, leaving a balance of $750 yet to be paid, which sum, it is cited in the closing part of the contract, is to be paid to Smyth. The sum to be paid is certain, but the time of payment may be indefinite. The sum to be paid is $750, the unpaid balance of the $1,250 purchase price; the time of payment is after a sale of the mine, and a reimbursement to Cooke of his expenditures for assessments.

The remaining question is whether the written promise to pay is assignable, so as to vest in the assignee the right to sue in a court of equity to enforce the vendor's lien existing originally in favor of the seller. A reference to the bill shows that the complainants therein averred that in payment of an indebtedness due from Smyth to Childers and Conway, Smyth, by writing indorsed on the back of the contract, assigned to them, not only all his right, title, and interest in the contract, or promise to pay, but also the vendor's lien the mine, and authorized Cooke to pay the assignees the amount due to