Upon the making of a contract, capable of specific enforcement, for the sale of land, the purchaser is ordinarily regarded as acquiring an interest or estate of an equitable character, which is however subject to the right of the vendor to payment of the purchase price in accordance with the terms of the contract.27 This right to payment the vendor may, if necessary, enforce by a proceeding in equity analagous to the foreclosure of a mortgage, with the result that the purchaser loses his contract rights in the land;28 and the courts, in referring to this right of the vendor to enforce his claim for the purchase price, frequently assimilate the relation of the parties to that of mortgagor and mortgagee, they standing to some extent in the same position as if the vendor had made a conveyance to the purchaser and the latter had executed a mortgage back to the vendor.29 In recognizing the right of the vendor to assert his claim to payment as against the purchaser's equitable interest, the courts not infrequently refer to it as a vendor's lien, a use of the latter term which is to be carefully distinguished from its use to describe what we have above discussed under the name of "the implied lien of the grantor." It differs from the latter, as it does from all other cases of equitable liens, which we have here considered, in that the person having the lien has also the legal title.30

24. Dingley v. Bank of Ventura, 57 Cal. 467; Sidwell v. Wheaton, 114 I11. 267, 2 N. E. 183; Talbot v. Roe, 171 Mo. 421, 71 S. W. 682; Roosevelt v. Davis, 49 Tex. 463.

25. Wiseman v. Hutchinson, 20 Ind. 40; Burrus v. Roiuhac, 2 Bush. (Ky.) 39; Deason v. Taylor, 53 Miss. 697; Gilbough v. Runge, 99 Tex. 539, 122 Am. St. Rep. 659, 91 S. W. 566.

26. Ober v. Gallagher, 93 U. S. 199, 23 L. Ed. 829; Dowdy v. Blake, 50 Ark. 205, 7 Am. St. Rep. 88, 6 S. W. 897; Dingley v. Bank of Ventura, 57 Cal. 467; Markoe v. Andras, 67 I11. 34; Duncan v. Louisville, 13 Bush (Ky.) 378; Moore v. Lackey, 53 Miss. 85; Powell v. Powell, 217 Mo. 571, 117 S. W. 1113; Nashville Trust Co. v. Smythe, 94 Tenn. 513, 27 L. R. A. 663, 45 Am. St. Rep. 748, 29 S. W. 903; McCamly v. Waterhouse. 80 Tex. 340, 16 S. W. 19, Briggs v. Enslow, 44 W. Va. 499, 29 S. E. 1008.

27. Ante Sec. 125.

28. Micou v. Ashurst, 55 Ala. 607; Sparks v. Hess, 15 Cal. 86, 194; Moore v. Anders, 14 Ark. 628,

60 Am. Dec. 551; Edmons v. Gracy,

61 Fla. 593, 54 So. 899; Gaston v.

Since the retention of the legal title shows a clear intention to rely on such title as security for payment of the price, a waiver of this right of the vendor will not be implied from the taking of other security for the price.31

White, 46 Mo. 486; Taylor v. Cape-hart, 128 N. C. 292, 38 S. E. 890. 29. Hardin v. Boyd, 113 U. S. 756, 28 L. Ed. 1141; Moses v. Johnson, 88 Ala. 517, 16 Am. St. Rep. 58, 7 So. 146; Higgs v. Smith, 100 Ark. 543, 140 S. W. 990; Merritt v. Judd, 14 Cal. 59; Hutchinson v. Crane, 100 I11. 269; Amory v. Reidly, 9 Ind. 490; Strickland v. Kirk, 51 Miss. 795; First Nat. Bank of Falls City v. Edgar, 65 Neb. 340, 91 N. W. 404; Graham v. McCampbell, Meigs, (Tenn.) 56, 33 Am. Dec. 126; Taylor v. Interstate Investment Co., 75 Wash. 490, 135 Pac. 240; Church v. Smith, 39 Wis. 492.

30. The confusion arising from these different uses of the term "vendor's lien," and the essential distinctions between these various equitable rights, are admirably discussed in 3 Pomeroy, Eq. Jur. Sec.Sec. 1260, 1261.

31. Boeman v. Ivey, 49 Ala. 75; Kent v. Williams, 114 Cal. 537, 46 Pac. 462; Robinson v. Appleton, 124 I11. 276, 15 N. E. 761; Henley v. Stemmons, 4 B. Mon. (Ky.) 131; McCaslin v. State, 44 Ind. 151; Hurley v. Hollyday, 35 Md. 469; Clower v. Rawlings, 9 Sm. & M. (Miss.) 122, 47 Am. Dec. 108; Strickland v. Summerville, 55 Mo. 164.

The benefit of this lien, so called, in favor of the vendor, passes to one to whom he transfers the right of action for the purchase money, as by an assignment of a note given therefor,32 just as the benefit of a mortgage transferring the legal title passes to one to whom the debt secured thereby, or a part thereof, is assigned.