(p) Nash v. Worcester Imp. Coinmrs., (1855) 1 Jur. N. S. 973.

(q) See Eccl. Coinmrs. v. Finney, 1900, 2 Ch. 736; 69 L. J. Ch. 844.

(r) Goode v. Burton, (1847) 1 Ex. 189 ; 16 L. J. Ex. 309 ; in which see the remarks made by the Court upon Mr. Justice Holroyd's dictum in Esdaile v. Oxenham, (1824) 3 B. & C. at p. 229. The conveyance of the legal inheritance carries with it the right to the deeds; Austin v. Croome, (1842) Car. & M. 653 ; Harrington v. Price, (1832) 3 B. & Ad. 170; Wakefield v. Keivbon, (1844) 6 Q. B. 276 ; 13 L. J. Q. B. 258 ; unless other property held under the same title is retained by the party making the conveyance ; Yea v. Field, (1788) 2 T. R. 708; and see Davies v. Vernon, (1844) 6 Q. B. at p. 446 ; V. & P. Act, 1874, s. 2 ; and see sup. p. 693. See, as to a mortgagee, Davies v. Vernon, (1844) 6 Q. B. 443, 447, which qu.; Coote on Mortgages, 7th ed. 828, 829. As to whether the releasee to uses or the cestui que trust (when a different person) is entitled, see Rcece v. Trye, (1847) 1 De G. & S. 273.

(s) Bowker v. Burdekin, (1843) 11 M. & W. 128 ; 12 L. J. Ex. 329 ; Gudgen v. Besset, (1856) 3 Jur. N. S. 212 ; 26 L. J. Q. B. 36.

The lien is a charge, and not in the nature of an "express trust" within s. 25 of the Eeal Property Limitation Act, 1833, and is therefore barred by s. 8 of the Act of 1874 after twelve years from the day fixed for payment: there having been no interim payment nor written acknowledgment of title (t).

Is not in nature of an express trust;

A vendor's lien is, however, money charged on land " by way of mortgage " within the Eeal Estates Charges Acts, 1854 to 1877, so as to deprive the heir or devisee of a testator, or intestate, of a right to have the unpaid purchase-money of land purchased by the testator or intestate discharged out of the personal estate, unless in the case of a testator he should, within the meaning of the Acts, have signified a contrary intention, but such contrary intention is not to be deemed to be signified by a charge of, or direction for payment of, debts upon or out of residuary real and personal estate, or residuary real estate (w).

Is within Real Estates Charges Acts, 1854 to 1877 (Locke King's Acts).

As the Act of 1877 confines the expression of a contrary intention to the case of a testator, it seems that no such expression by deed or other document would have the effect of freeing the purchased estate from an existing vendor's lien in the hands of the heir; though in the case of a mortgagee such a contrary intention might be sufficiently expressed under the Act of 1854 by deed or other document, as well as by will (.r).

Remarks on the Act.

A vendor's lien is assignable or chargeable by parol (y);

Is assignable by parol.

(0 Toft v. Stephenson, (1854) 5 D. M. & G. 735, which see as to interest ; and see Re Drax, 1903, 1 Ch. 781 ; 72 L. J. Ch. 505.

(u) See sup. p. 306, and inf. p. 832 et seq., on the Ileal Estates Charges Acts generally. A bequest of "securities for money" includes the lien ; Callow v. C, (1889) 42 Ch. D. 551 ; 58 L. J. Ch. 698 ; but distinguish Goold v. Teague, there cited.

(x) Per Kay, J., in Be Cocheroft, (1883) 24 Ch. D. 94, 100 ; 52 L. J. Ch. 811.

(y) Dryden v. Frost, (1837) 3 M. & C. 670 ; 8 L. J. N. S. Ch. 235 ; Burn v. Carvalho, (1839) 4 M. & C. 690 ; 9 L. J. N. S. Ch. 65 ; Rodick v. Oandell, (1851) 1 D. M. & G. 763, and cases cited ; Bell v. L. & N. W. R. Co., (1852) 15 Beav. 548; Morrell v. Wootten, (1S52) 16 Beav. 197 ; Riccard v. Prichard, (1855) 1 K. & J. 277.

But the assignee or incumbrancer takes subject to any prior equitable incumbrances created by the vendor (z). Where a vendor, between whom and his purchaser there were unsettled accounts, was allowed to retain the title deeds, and deposited them by way of equitable mortgage without notice, and became bankrupt, the equitable mortgage was upheld, to the extent of the unpaid purchase-money, against the purchaser who had not appropriated, in satisfaction of it, a balance which was due to him from the vendor on the unsettled accounts (a), Whether the vendor has abandoned his lien is in all cases a question of intention and construction; the test being whether the vendor has taken some other security, in substitution for the ordinary lien ; and the burden rests on those who deny the existence of the lien to make out their case. The cases on the subject are very numerous (b), and are all consistent with the principle here laid down.

Waiver of lien: what amounts to,- as a rule, taking personal security does not,

Prima facie, the taking of a mere personal security for the purchase-money, e.g., a promissory note(c), or a bill of exchange (d), even though it is negotiated (e), or a bond (f), is not evidence of an intention to abandon the lien. Nor will the joining of a surety in a note or bill of exchange make any difference, since these are considered merely as modes of payment (g). But whether this would be so where a bond or covenant is taken from a third person has not been actually decided (h).

(z) Lacey v. Ingle, (1847) 2 Ph. 413 ; Mangles v. Dixon, (1852) 3 H. L. C. 702.

(a) Payne v. Baker, (1859) 1 Gif. 241; Peto v. Hammond, (1860) 29 Beav. 91.

(b) Mack reth v. Symmons, (1808) 2 Wh. & T. L. C. 7th ed. 926, and notes thereto.

(c) Gibbons v. Baddall, cited 2 Eq. Ca. Ab. 682, n. ; Hughes v. Kearney, (1803) 1 Sch. & L. 132 ; Exp. Peake, (1816) 1 Mad. 346.

{d) Tad v. Carruthers, (1842) 2 Y.

& C. C. C. 31; Grant v. MM*, (1813)

2 V. & B. 306.

(e) Ex p. Zoaring, (1814) 2 Rose, 79 ; and see as to goods, Gunu v. Bolckow, (1875) 10 Ch. 491 ; 44 L. J. Ch. 732, which seems to overrule Bunney v. Poyntz, (1833) 1 N. & M. 229 ; 2 L. J. N. S. K. B. 55.

(/) Winter v. Lord Anson, (1827)

3 Rus. 488 ; 6 L. J. Ch. 7 ; Collins v. C, (1862) 31 Beav. 346.

(g) Hughes v. Kearney, sup.; Grant v. Mills, sup. at p. 309.