An agreement that the vendor shall retain the title deeds does not raise a presumption that it is intended to exclude the lien (d).

Presumable intention either way may be rebutted.

(t) Parrott v. Sweetland, (1834) 3 M. & K. 600; Re Albert Ass. Co., (1870) 11 Eq. 164 ; 40 L. J. Ch. 166 ; Re Brentwood Brick Co., (1876) 4 Ch. D. 662 ; 46 L. J. Ch. 554.

(u) Parrott v. Sweetland, sup. at p. 664.

(x) Austen v. Ealscy, (1801) 6 Ves. 475, 483.

(y) Elliot v. Edwards, (1802) 3 B.

&P. 181.

(2) Frail v. Ellis, (1852) 16 Beav. 350; 22 L.J. Ch. 467.

(a) Winter v. Lord Anson, (1823) 1 S. & S. at p. 445 ; 6 L. J. Ch. 7.

(b) Exp. Farkes, (1822) 1 Gl. & J. 228.

(c) Machrth v. Symmons, (1808) 15 Ves. 351.

The lien is not lost by an unauthorized or improper payment to the vendor's agent (e).

Not lost by-unauthorized payment to agent.

Where a vendor joins in a deed by which the purchaser mortgages the estate to a third party, who advances part of the purchase-money, he has, as against such mortgagee, no lien for the unpaid balance (f) : so, where a vendor, without receiving the purchase-money, signs the conveyance for the purpose of enabling the purchaser to execute a mortgage, he has no lien as against the mortgagee (g) : so, where, upon a purchase by trustees, the vendor, knowing the money to be trust money, signed the usual indorsed receipt, but allowed part of it to remain in the hands of one of the trustees without the knowledge of his co-trustees, or cestuis que trust, he was held to have no lien (h). So, where a trustee purchased on behalf of his cestui que trust, and the recitals of the conveyance disclosed the trust, and contained a statement that a sufficient portion of the trust funds had been called in to provide the purchase-money, for the whole of which there was an indorsed receipt, the real fact being that part of the price was contributed by the trustee personally, and was secured by his bond and a deposit of the title deeds with the vendor, it was held that the latter had no lien on the deeds for the balance due to him (i). So, where trustees sold land intended for building purposes, and signed a receipt indorsed on the conveyance for the whole of the purchase-money, though only a part of it was in fact paid, and then at the purchaser's request registered a memorandum of the conveyance in the "West Riding registry, in order that a good title might be made to the property, but retained the conveyance ; it was held that the vendors had by their conduct lost their lien as against sub-purchasers of parts of the property from the original purchasers (k).

Lien, how lost as against third parties.

(d) Wreforde v. Lethera, (1824) 2 L. J. (0. S.) Ch. 173.

(e) Wrout v. Dawes, (1858) 25 Beav. 369 ; Wilson v. Keating, (1859) 5 Jur. N. S. 815.

(/) Cood v. Pollard, (1821) 9 Pr. 544.

(g) Smith v. Evans, (1860) 28 Beav. 59 ; Rice v. P., (1853) 2 Dr. 73 ; 23 L. J. Ch. 289.

(h) White v. Wakefield, (1835) 7 Si. 401 ; Price v. Blakemore, (1843) 6 Beav. 507.

(i) Muir v. Jolly, (1858) 26 Beav. 143.

And no lien will be assumed in favour of parties who are, by law, disqualified from holding such an interest in real estate (/).

None implied in favour of disqualified parties.

Where a purchaser paid part of his purchase-money, and was let into possession, but took no conveyance, and the vendor obtained a decree for sale, it was held, that a purchaser under the decree was not compellable to complete without the concurrence of the registered judgment creditors of the original purchaser, who were not parties to the suit, and whose judgments were prior to the decree (m).

Concurrence of judgment creditors of original purchaser on sale under decree.

Where the original contract is tainted with illegality, this is a defence to an action by the vendor upon any security which may have been given for the balance of the purchase-money (n).

Illegal contract.

A vendor's lien is not affected by an order under s. 116 of the Lunacy Act, 1890, whereby a person is appointed to receive and give a discharge for all sums due to the lunatic (o).

Vendor's lien not affected by appointment of receiver in lunacy.

The vendor to a railway company has no lien for his unpaid purchase-money upon the moneys deposited in Court under the L. C. C. Act, 1845 (p) : he has, however, the ordinary vendor's lien upon the land taken, in respect not only of unpaid purchase-money, hut also of compensation for consequential damage (q); unless such compensation is the subject of a separate agreement between him and the company (r) ; and the fact of a deposit and bond having been made under s. 85, does not prejudice his lien for the excess of the purchase and compensation moneys .over the sum deposited (s). The lien does not extend to the costs of the arbitration under which the price has been ascertained (t) ; and it has been held that on a sale to a public company in consideration of a yearly rent-charge, the vendor has no lien (u).

Vendor's lien for unpaid purchase-money on sale to a railway company.

(k) Kettlewett v. Watson, (1884) 26 Ch. D. 501; 53 L. J. Ch. 717. The circumstances of this case were very special, and some of the purchasers had omitted to take reasonable pre-cautions.

(l) Sup. p. 518 ; Harrison v. South' cote, (1715) 2 Ves. sen. 389, 393.

(m) Re Grey-coat Hosp.,(1857) 1 D. & J. 531 : 27 L. J. Ch. 62 : Knight v. Pocock,(1857) 24 Beav. 436; 27

L. J. Ch. 297; and see Ridout v. Fowler, 1904, 2 Ch. 93 ; 73 L. J. Ch. 579.

(w) Fisher v. Bridges, (1854) 3 E. & B. 642 ; 23 L. J. Q. B. 276. As to illegal agreements, see sup. p. 264 et seq.

(o) Davies v. Thomas, 1900, 2 Ch. 462; 69 L. J. Ch. 613.

(p) See sup. p. 719.

A vendor's lien, when established by a judicial decree (x), may be enforced by sale (y). Where purchase-money is to be paid by instalments, some of which are in arrear, and some of which are not yet due, the vendor, on bringing an action for specific performance, may obtain a declaration of lien for both the arrears and future instalments (z). A vendor's lien is recognized and can be enforced only in Equity. In one case (a) it was held that a vendor could not at the same time sue in Equity to enforce his lien, and also bring an action at Law upon a bond or any other security which he might have taken for payment of the money, though if he failed in one remedy, he might resort to the other. This decision seems, however, to be open to question, on the ground that there is no distinction in principle between a vendor seeking to enforce his lien, and a mortgagee who may pursue both his remedies concurrently (b).

Vendor's lieu, how enforced.

Where purchase-money payable by instalments.

(q) Walker v. Ware E. Co., (1865) 1 Eq. 195 ; 35 L. J. Ch. 94.

(r) lb.

(s) Ib.

(t) Earl Ferrers v. Stafford R. Co., (1872) 13 Eq. 524; 41 L. J. Ch. 362.

(u) Earl of Jersey v. Briton Ferry Co., (1869) 7 Eq. 409, 413.

(x) A.-G. v. Sittingbourne R. Co., (1866) 1 Eq. 636 ; 35 L. J. Ch. 318.

(y) Hope v. Booth, (1830) 1 B. & Ad. 498 ; 9 L. J. (O. S.) K. B. 21.

(z) Nives v. N., (1880) 15 Ch. D.

649; 49 L. J. Ch. 674; and see Cornwall v. Henson, 1899, 2 Ch. 710 ; 1900, 2 Ch. 298 ; 68 L. J. Ch. 749 ; 69 ib. 581, where a purchaser who had agreed to pay by instalments, after payment of all but one, having abandoned by conduct the contract, was, on a subsequent claim, refused either specific performance, damages, return of instalments or a lien on the land for the instalments paid.

(«) Barker v. Smark, (1840) 3 Bear. 64.

The lien may in the same way be enforced against lands taken by a railway company, though the line is open for traffic (c). But the Court will not upon an interlocutory application restrain the company from using the lands bought by them for the purposes of their undertaking until payment of the purchase-money (d). Where, however, a decree was made against the company for specific performance of the contract, and for payment of the purchase-money within a limited period, leave was granted to the plaintiff to apply for an injunction in default of payment (e) : and it seems clear that in such a case on decree (f), but not upon an interlocutory application (g), the landowner is entitled to have a receiver appointed. Under the Railway Companies Act, 1867, s. 4, the rolling stock and plant of a railway company cannot be taken in execution; but a receiver and, if necessary, a manager may be appointed, on the petition of the judgment creditor; and the money received will be distributed under the direction of the Court (gg).

Lien, how enforced against a railway company.