Vendor executing conveyance without payment has no common law lien on the title deeds.

(i) Sice v. Rice, 2 Drew. 73, 85; Simmer v. Webster, 1902, 2 Ch. 163, 173, 174; above, pp. 616, n. (q), 655, 847.

(k) Cood v. Pollard, 9 Price, 514, 10 Price, 109.

(l) Smith v. Evans, 28 Beav. 59.

(m) Above, pp. 362, n. (r), 927.

(n) Kettlewell v. Watson, 26 Ch. D. 501.

The vendor's lien for unpaid purchase money, after execution of a conveyance to the purchaser, does not entitle him to resume possession of the land sold (t), nor does it authorise him to sell the land so charged (u). His only remedy to enforce the lien appears to he to apply to the Court, under its equitable jurisdiction, for a declaration of charge and an order for sale to raise the amount due (x). If, however, the order for sale prove ineffectual, the property being unsaleable at any adequate price, the Court may then make an order directing the vendor to be again let into possession thereof (y).

How the lien is enforceable.

(o) Goode v. Burton, 1 Ex. 189; see above, p. 602.

(p) Dryden v. Frost, 3 My. & Cr. 670, 672, 673. This authority seems to have escaped the notice of the editors of Dart, V. & P. 6th ed. (see p. 826), or they would hardly have altered the statement in 2 Dart, V. & P. 731, 5th ed. It appears, indeed, to have been overlooked by Dart himself, and Sugden too; see Sug. V. & P. 434, 565.

(q) Above, pp. 509, 510.

(r) Above, p. 929.

(s) Worthington v. Morgan, 16 Sim. 547; Oliver v. Hinton, 1899, 2 Ch. 264. But if he make inquiry for the deeds and receive a reasonable excuse for their non-production, he will not be affected with notice of the lien; Hewitt v. Loosemore, 9 Hare, 449; and see Hunt v. Elmes, 2 De G-. F. & J. 578; Ratcliffe v. Barnard, L. R. 6 Ch. 652; Manners v. Mew, 29 Ch. D. 725, 733.

If one advance money in payment for land, which another is under contract to buy, he is entitled by subrogation to the same lien which the vendor would have had if the price had remained unpaid (z). Thus, where an undischarged bankrupt bought land, and his solicitor paid part of the purchase money for him, it was held that the solicitor should have a lien for the amount so paid, in priority to the claims of the trustee and creditors in the bankruptcy (a).

Subrogation to vendor's lien of person advancing the purchase money.

Where a conveyance has been executed without payment of the whole price, the purchaser is entitled in equity to set off against the unpaid purchase money any sums of money expended by him in the discharge of incumbrances subsequently discovered, which were created by the vendor himself or comprehended in the vendor's covenants for title (b). And the purchaser is of course entitled to assert the same right as against any assignee of the unpaid purchase money (c), unless, in view of the assignment of the debt, the assignee had made inquiry of him as to the state of account between him and the vendor, and had received in answer an admission that the whole amount was owing (d). But if any incumbrance discovered subsequently to the conveyance were created under title paramount to the vendor's, and were not within the guarantee provided by his covenants for title (e), it appears that the purchaser has no right to withhold payment of any part of the purchase money on that account (f), unless the sale were induced by the vendor's fraudulent misrepresentation as to his title or otherwise (g).

Where the discharge of incumbrances discovered after conveyance may be set off against unpaid purchase money.

(t) Munns v. Isle of Wight Ry. Co., L. R. 5 Ch. 414, 416, 419; Williams v. Aylesbury, etc. Ry. Co., 28 L. T. N. S. 547, 21 W. R. 819; Allgood v. Merry bent, etc. Ry. Co., 33 Ch. D. 571, 574. As in the case of a sale of goods, the vendor, after conveyance of the property, is not entitled to rescind the contract for the purchaser's failure to pay the price; Benjamin on Sale, 622, 2nd ed.

(u) Above, p. 44; and see A.-G. v. Sittingbourne, etc. Ry. Co., L. R. 1 Eq. 636.

(x) Above, pp. 44, and n. (b), 414, n. (p); Mackreth v. Symmons, 15 Ves. 329; Ecclesiastical Commrs. v. Finney, 1899, 2 Ch. 729, 1900, 2 Ch. 736, Seton on Judgments, 2290, 2291, 6th ed.

(y) Allgood v. Merrybent, &e. Ry. Co., 33 Ch. D. 571.

(z) Meux v. Smith, 11 Sim. 410, 427; Brocklesby v. Temperance, etc. Socy., 1895, A. C. 173, 182, 185; Thurstan v. Nottingham, etc. Bdq. Socy., 1902, 1 Ch. 1, 1903, A. C. 6; above, p. 800.

(a) Bird v. Philpott, 1900, 1 Ch. 822.

Here it may be convenient to state shortly what remedies remain open to the parties to a sale of land after completion of the contract by conveyance. These are (1) an action to enforce any obligation which arises out of or is collateral to the contract and is not extinguished by the conveyance of the land (h), as to recover any unpaid purchase money or to enforce the vendor's lien in respect thereof (i), for breach of a collateral stipulation contained in the contract (k), or for breach of a collateral warranty (l); (2) an action to rescind the contract for fraudulent misrepresentation (m), duress or undue influence (n), or on the ground of relative equitable disability (o): but not for innocent misrepresentation (p); (3) an action of deceit for fraudulent misrepresentation (q), or an action to recover damages for duress amounting to a tort (r);

Remedies remaining open after conveyance.

(b) Maynard's case, 2 Freem. 1; Tourville v. Naish, 3 P. W. 306; Sug. V. & P. 552; 2 Dart, V. & P. 905, 906.

(c) Above, p. 675.

(d) Above, p. 437; 2 Dart, V.&P. 906.

(e) Above, p. 571.

(f) Consider Maynard's case, 2 Freem. 1; Anon., ib. 106; Thomas v. Powell, 2 Cox, 394;

Wakeman v. Rutland, 3 Ves. 233, 235; contra, Anon., 2 Ch. Ca. 19; but this is not law; Sug. V. & P. 551, 552.

(g) Above, pp. 577, 578, 723, 723.

(h) Above, pp. 922 - 924.

(i) Above, pp. 924, 930.

(k) Above, pp. 55, 540, 922.

(/) Above, pp. 540, 728, 732, 738, n. (n), 922, 923.

(m) Above, pp. 723, 728, 752.

(4) an action for rectification of the conveyance (s);

(5) an action to enforce any covenant contained in the deed of conveyance, as upon covenants for title (t) or to enforce restrictive covenants (u), or a covenant to build, repair, or the like (x); (6) an action to enforce any covenant or agreement running with the land sold at law or in equity, as covenants for title entered into by the vendor's predecessor in estate (y), or restrictive covenants made with the vendor or any of his predecessors in title (z); (7) an action founded on the legal incapacity of a party to the sale, as by an infant vendor (a) or a corporation disabled from selling its land (b), to recover the land sold; and (8) an action to rescind the contract, if made under a common mistake of fact (bb).