(r) De Lassalle v. Guildford, 1901, 2 K. B. 215; above, pp. 540, 680, G86, 728, 732, 738, n. (u).

(s) See above, pp. 427, 428.

(t) Above, pp. 428, 429, 571, 572, and cases there cited.

(u) Clarice v. Ramuz, 1891, 2 Q. B. 456; above, pp. 446, 456, n. (o).

(x) Above, pp. 447, 454, 456, and n. (o).

(y) See cases cited in notes (q), (r), (u), above.

17(2)

Of course, completion of the purchase does not extinguish the contract of sale where it takes place, by the parties' arrangement, without payment of the whole or some part of the purchase money. In that case the amount unpaid remains owing to the vendor as a debt due upon the contract of sale (e); and the vendor has also an equitable lien on the land sold for the amount due, with interest thereon at the rate of 4l. per cent, per annum (f). This lien is no more than the continuance of that arising in equity on formation of the contract of sale (g); the lien being allowed to remain in equity until payment, notwithstanding that the vendor has parted with the legal estate by conveyance, and that in the deed of conveyance the whole consideration money is expressed to have been paid (h). The vendor may, however, waive or abandon his lien for the unpaid purchase money, and his intention to do so may be either expressed or implied from the circumstances of the case. An express waiver or release of the lien presents no difficulty: but it must be made either by deed or for valuable consideration; for a gratuitous promise or assurance of waiver or abandonment of the lien appears to be of no avail, if not given under seal (i). As the benefit of the lien appears to be assignable by parol only, and to pass by an assignment, valid in equity, of the unpaid purchase money (k), it seems that an agreement for waiver or abandonment of the lien need not be put into writing, if made for valuable consideration. Where such waiver or abandonment is sought to be implied, the onus lies on those who deny the existence of the lien, which arises by the rule of equity in the absence of stipulation to the contrary; the question is one of the parties' intention, to be determined by the documents they have executed and the circumstances of the case; and the test is, whether they have in effect agreed that the vendor shall have some other security or mode of payment in substitution for his lien (l). For example, the vendor's lien is not in general affected by the fact that he has accepted the purchaser's bill of exchange or promissory note, or taken his bond for payment of the amount due, even though such payment be thereby postponed to a future day, or some other party join in the security as a surety for the purchaser's payment; for these are only modes of payment and are not a substitute for the lien (m). But if the sale were made on the terms of the purchaser's giving a bond for a certain sum to be void on the performance of a particular condition, so that the giving of the bond and not the payment of the sum thereby secured was the consideration for the conveyance, the vendor would have no lien (n). And an intention to exclude the vendor's lien has been implied where he took a mortgage of the land sold to secure a part of the unpaid purchase money (o), where be took a mortgage on part of the land to secure the whole sum remaining unpaid (p), where payment of the purchase money was to be secured by a transfer of stock redeemable on payment (q), and where payment of the price was to be made partly in shares of a company and partly out of moneys to be received by the company from the sale of shares or from loans made to them (r). The vendor has a lien, in the absence of stipulation to the contrary, where the price is payable by instalments (s), or the sale is made in consideration of the payment of an annuity (t): but not if the parties' intention appear to be that there shall be no such lien (u).

Completion without payment of the price.

Vendor's lien.

(2) Above, pp. 571, 572, 589.

(a) Above, pp. 697 sq., 704, 720.

(b) Above, pp. 701 - 703, 71G, 717.

(c) See above, p. 912.

(d) Howell v. Satchell, 1903, 2 Ch. 212; and see above, p. 431.

(e) Consider Evans v. Tweedy, 1 Beav. 55.

Waiver or abandonment of lien.

Express;

(f) Chapman v. Tanner, 1 Vern. 267; Pollexfen v. Moore, 3 Atk. 272; Mackreth v. Symmons, 15 Ves. 329.

(g) Above, p. 440, and n. (m); Smith v. Hibbard, 2 Dick. 730; Topham v. Constantine, Taml. 135; Toft v. Stephenson, 7 Hare, 1, 1 De G. M. & G. 28, 5 De G. M. & G. 735. The first and last of these cases illustrate the enforcement of the vendor's lien, where the purchaser has been let into possession, but no conveyance has been executed.

(h) A receipt for the whole price in the body of the deed estopped the vendor from proving non-payment at common law; Baker v. Dewey, 1 B. & C. 704; Harding v. Ambler, 3 M. & W. 279; but not in equity; Coppin v. Coppin, 2 P. W. 291; Wilson v. Keating, 28 L. J. Ch. 895; and cases cited in last note but one. As all branches of the High Court now have equitable jurisdiction, such estoppel by deed at law has practically ceased to exist. An endorsed receipt (see above, p. 616 and nn. (p), (q) ) worked no estoppel either at law or in equity; at law it was only evidence for a jury, and might be rebutted; Lampon v. Corke, 5 B. & A. 606, 611, 612.

(i) Above, pp. 3, 909; Re Hancock, 57 L. J. Ch. 793; Edwards v. Walters, 1896, 2 Ch. 157, 168, 172; and see Wms. Pers. Prop. 224, n. (q), 15th ed.

(k) Dryden v. Frost, 3 My. & Cr. 670, 672 - 674. The assignee takes subject to the purchaser's right to have the estate conveyed to him free from incumbrances, or otherwise as specified in the contract, and to all prior incumbrances created by the vendor on the land sold; Lacey v. Ingle, 2 Ph. 413; above, p. 421, n. (z). or implied.

(l) Mackreth v. Symmons, 15 Ves. 329, 340 - 350; Winter v. Anson, 3 Russ. 488, 490 - 492; Parrott v. Sweetland, 3 My. & K. 655; Re Albert, etc. Co., L. R. 11 Eq. 161, 178, 179; Re Brentwood, etc. Co., 4 Ch. D. 562; 2 Dart, V. & P. 829.