ner, both derived from the same person who had held that the husband may claim as tenant by the courtesy, without entry, wild lands of which his wife was seized, and which were not held adversely. But the general rule of law is, Upshaw subsequently agreed to ratify the sale 55*] that *there must be an entry during coving an assignment of Buckner's bond for the purfrom the original holder to Buckner, upon receiverture, to enable the husband to claim by the chase money, not yet due, and other securities. courtesy. At no time during the life of Mrs. Swann, does it appear that there was an entry upon the premises in controversy by herself or her husband. On the contrary, it appears the defendant and his ancestor held the land adversely. It is clear, therefore, that Swann could not claim as tenant by the courtesy, and consequently no such right could interpose to prevent the entry of the heirs of his wife. They were bound, without regard to their infancy or other disabilities, to bring their action in ten years from the decease of their ancestor. This results from the fact that the right of action accrued in the lifetime of their ancestor, and the rule of law, which does not admit of cumulative disabilities. By the same principles, the devisees of John Page, who died in 1800, are also barred. The statute also bars the right of entry in William Byrd Page. From this view of the case, it can scarcely be necessary to notice the bill of exceptions taken on the trial by the plaintiff. So far as evidence was offered to disprove the considera tion. The bond not being paid, Upshaw brought an ejectment and obtained a judgment. Buckner's assignees filed a bill to obtain a perpetual injunc There is a privity of contract between them and Upshaw, and a perpetual injunction will be granted their assignor; it was not their duty, under the cirupon their fulfilling the obligations of Buckner, cumstances, to have tendered the money to Up shaw. under that power, prior to Upshaw's giving his asA power in Buckner to resell, and a sale made sent to the sale from the original holder to Buckner himself, did not extinguish the equitable right proceed against the land. of Upshaw to receive the purchase money, or to Upshaw's right not destroyed by lapse of time, because he had brought suit on Buckner's bond and the other securities, and was not in a condition for a long time to make a valid title. Upshaw, being held bound by his assent to the sale to Buckner, is entitled to the advantage which that paper gave him as to the application of part of the purchase money to one purchase in preference to another. Interest must begin to run from the time when Upshaw asserted his claim to the land, and what is holders of the land, each one contributing in produe to Upshaw must be made up by the present portion to the price which he paid to Buckner." tion named in the deed to Mackay, with the THIS THIS was an appeal from the Circuit Court of the United States for the District of Ohio, sitting as a court of chancery. The case was this: view of rendering it invalid, the evidence was properly rejected. And so far as regards the circumstances which the plaintiff offered to John Buchannon and others filed a bill in prove, they could have no other, if any effect, the Circuit Court of Ohio against Upshaw, than to create a suspicion of unfairness or fraud stating that Upshaw had obtained a judgment in the execution of the deed. All matters of in an action of ejectment against them, and fraud and trust arising out of this transaction praying for two things: 1. That he, Upshaw. were considered and decided in the case in might be perpetually enjoined from proceeding equity lately brought before the Court of Ap-in execution upon said judgment; and, 2. That peals of Virginia, by the parties to the present suit. If that jurisdiction were rightfully exercised, it concludes all questions of fraud in this case. Upon the whole, we affirm the judgment of the Circuit Court. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Virginia, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed with costs. Cited-7 How., 717; 4 Otto, 779; 12 Otto, 310; 2 Curt., 208, 210; 2 Sawy., 518. he might be compelled to convey by deed_in fee-simple, the land *which had been the [*57 subject of the suit in ejectment. The Circuit Court, after various proceedings, decreed that the injunction which had been temporarily granted, restraining Upshaw from suing out executions upon his judgment in ejectment, should be dissolved; that the bill should be dismissed, and that Buchannon and others should pay to Upshaw a certain sum of money for the rents and profits, after deducting the value of the improvements made upon the land. From this decree an appeal was taken to this court. On the 11th of December, 1789, Beverly Roy obtained from the Commonwealth of Virginia a patent for one thousand acres of land in the Virginia military district of Ohio, and within Clermont County. He sold three hundred acres of this tract to one Buchannon, and contracted to convey the remaining seven hundred (the land in controversy in the present suit) to Lyne Shackleford. On the 10th April, 1797, Shackleford sold this tract of seven hundred acres to Upshaw, the defendant in the present appeal; but not having the legal title in himself at that time, he procured it to be made directly from Roy sale of lands, see note to Hopkins v. Lee, 6 Wheat.. NOTE. As to damages for breach of contract of 109. to Upshaw, without passing through himself. On the 20th of July, 1797, Roy accordingly executed a conveyance to Upshaw for these seven hundred acres, and also a bond for further assurance. On the 16th November, 1797, Shackleford, being thus destitute of the legal title, neverthe less sold to Philip Buckner the same tract of seven hundred acres which he had previously sold to Upshaw. It was alleged in the bill that this sale was made with Upshaw's consent, but no evidence of it was furnished, except that in the contract of 1801 his consent is stated to be given at sometime prior to 1801. At the same time, Shackleford sold also to Buckner another tract of one thousand acres. The price for both tracts was £1,020, without saying what was the sum for each tract. No part of it was to be paid in cash. A bond of Anderson for £600 held by Buckner was assigned to Shackleford; a claim against Coats for £250 was also assigned over; and for the balance Shackleford agreed to wait until Buckner sold the one thousand seven hundred acres, provided he sold it prior to January, 1799; if not, payment to be then made, or sooner if Buckner should sell. In 1798 and 1799, Buckner sold to the com58*] plainants, or to those under whom they claim, in several parcels, the whole of the seven hundred acres in question, who paid him in full therefor, received conveyances, and entered into possession. On the 18th of April, 1801, Upshaw, having made some payments to Shackleford, entered into a new contract with him, which was indorsed on the original one, stating "that since the date of the within, Shackleford had, with the consent of Upshaw, sold the seven hundred acres of land to Buckner for £420, which sum is still due;” and it was agreed that Shackleford should assign Buckner's contract to Upshaw, who was to make a deed as soon as the money should be paid. But if, upon application, Buckner did not pay the said sum of money and interest. Upshaw was immediately to take proper steps to have the land sold to raise the money and interest. On the 16th of May, 1803, Shackleford assigned to Upshaw the contract between Shackleford and Buckner, and authorized Upshaw to receive from Buckner the balance due on the same, amounting on that day to £530 9., having previously assigned the claim upon Coats's bond, and an order which Buckner had given upon one Copland, the attorney who was charged with its collection. The result of that claim may be stated in a few words. Suit was brought in the Circuit Court of the United States at Richmond, by John Marshall, in 1798, against Coats: there was a judgment, a ca. sa., another ca. sa.; and, finally, it got into chancery against Coats's widow and children. The plaintiff at last gave it up in 1820. Upshaw made more than one effort to obtain the money from Buckner, which was due under the contract assigned by Shackleford. In April, 1804, he empowered John H. Upshaw, who was going to Kentucky, to receive from Buckner the sum due on his contract; and, on the payment of the money, the agent was authorized to make a deed. The agent called on Buckner, who expressed much anxiety to comply with his contract, and induced the agent to remain some days, in the hope of raising the money. But he failed to pay any part of it. The agent, after authorizing John O'Bannon to receive the money from Buckner, and make him a deed, returned to Virginia. Upshaw drew an order on John O'Bannon in April, 1807, for the money, which [*59 was returned protested for non-acceptance. O'Bannon shortly after this died, and in the year 1813, or 1814, Upshaw obtained from his representatives the assigned contract of Buckner, which had been left with him, and on which was indorsed a credit for $100 on the 10th April, 1805, and another for the same amount, 18th April, 1806. On obtaining the contract, Upshaw caused an action to be brought on it against Buckner for the money. The suit being brought in the name of Upshaw, as asignee of Shackleford, there was a demurrer to the declaration; and at the May Term, 1815, the Circuit Court of the United States for Kentucky sustained the demurrer, and the action failed. Shortly after this, Upshaw commenced an action of ejectment, in the Circuit Court of the United States for the District of Ohio, against Buchannon and others, who occupied the land, to recover possession of it, which, at May Term, 1816, failed, on the ground that the patent emanated from the State of Virginia, subsequently to the deed of cession from Virginia to the United States; and of course Upshaw was only invested with the equitable title to the land. In August, 1817, Roy and wife executed another deed to Upshaw for the land, in compliance with the covenant for further assurance, which he had entered into in 1797. Some short time prior to December, 1820, Buckner died. His will, made in February, 1817, contains bequests of real estate and some small legacies of personalty. The executor filed two accounts, one in 1822, and the other in 1823, the latter showing a balance in the hands of the executor of $50.18. It does not appear that any of his real estate was required to be sold to pay debts. In 1826, Upshaw obtained from the United States a patent for the seven hundred acres. In 1829, he brought another ejectment, in the Circuit Court of the United States for the District of Ohio, against Buchannon and others, occupiers of the land, and having now a patent from the United States, succeeded in obtaining judgment; upon which, Buchannon and others filed a bill upon the equity side of the same court, and obtained an injunction to stay proceedings. This is the bill mentioned in the commencement of this narrative, *which, [*60 upon hearing, was dismissed by the Circuit Court, and the injunction dissolved; and the case now came up by an appeal from that decree. The proceedings in this case were diversified in its history, by two collateral chancery suits, one by John H. Upshaw against E. Upshaw, and another by E. Upshaw against Chamberlayne, the executor of Shackleford; but as the decision of this case does not rest upon any of the facts or principles disclosed in them, they are not further noticed. Mr. Stanberry and Mr. Leonard, for the appellants: I. Roy, the original owner of the equitable title to the seven hundred acres, sold the land to Shackleford. Shackleford, on the 10th April, 1797, sold the land to Upshaw by titlebond, covenanting to make a deed. Afterwards, on the 16th July, 1797, Shackleford again sold the land to Buckner, by title-bond, received a part of the purchase money, and agreed to wait for the residue until the money could be raised by a resale by Buckner. In this state of facts the equity to be then administered between the then parties was obvious. Upshaw, as the first purchaser of the equitable title, was to be preferred to Buckner, although he may have purchased from Shackle ford without notice. The rule prior in tempore, potior in jure, would then have applied, for there was no laches, acquiescence, or fraud chargeable to Upshaw. Next in order was the resale by Buckner to the complainants, the payment in full to Buckner, execution of deeds by Buckner to the purchasers, and the taking possession of the lands by the purchasers. Notwithstanding all this, at that point of time, so far as any fact is yet developed, Upshaw's equity was the best. He stood then upon his first purchase of this equity. The subsequent sale by Shackleford to Buckner was in fraud of his title, and he had given no authority for such subsequent sale, and stood wholly unaffected by it. But after all this, on the 18th April, 1801, Upshaw enters into communication with Shackleford, the fraudulent vendor, and they enter into an agreement under seal, in which 61*] it is recited, that the sale made by Shackleford to Buckner had been made with Upshaw's consent; they cancel the prior agreement which witnessed the first sale from Shackleford to Upshaw; and Shackleford agrees to assign to Upshaw the contract with Buckner, and to authorize him to receive the money due from Buckner; that is, the £420, with interest at 5 per cent. In conformity with this arrangement, on the 7th May, 1803, Shackleford delivered to Upshaw, Buckner's order on Copeland for the Coats money; and on the 16th of the same month assigns to Upshaw the contract with Buckner; and on the 17th of the same month, Upshaw releases Shackleford from the contract in which he had made the first sale to Upshaw. After all this, there remains no question between different equitics. The prior equitable title of Upshaw was extinguished. He could no longer assert his prior equitable title as superior to that of Buckner, but must stand in the shoes of Shackleford, and recognize the equity of Buckner. The bill alleges that Shackleford made the second sale to Buckner with Upshaw's consent. Upshaw denies any prior consent, but says he assented to it qualifiedly afterwards. I do not know that it makes much difference, as to the extinguishment of his prior equitable title, whether the assent was prior or subsequent to the second sale; but as the proof stands, the prior consent is established beyond all denial. He has acknowledged under his seal, that Shackleford had made the sale with his consent, and that stops him from saying the contrary. And again, if the consent to the second sale, whether prior or subsequent, did not extinguish Upshaw's prior equity, it is extinguished by express release in the agreement between himself and Shackleford of the 17th May, 1803. Upshaw, therefore, must stand upon the contract between Shackleford and Buckner. He must stand as the assignee of the vendor to Buckner. Let us now examine that contract, and ascertain what interest passed by it to Buckner, or upon a resale by him to these complainants, and what interest remained in the vendor. At the date of this contract, the legal title to this seven hundred acres was in the United States. A patent had been granted for it by the State of Virginia to Roy, the warrantee, but it was wholly inoperative, being [*62 made years after the deed of cession. The subject matter of sale was, therefore, an equitable interest in land. This interest passed effectually to Buckner by a written contract, sufficient to satisfy the statute of frauds; and this, notwithstanding the purchase money was not paid. (Hampson v. Edelen, 2 Harr. & Johns.. 64.) It passed in the same manner upon the sale by Buckner to the complainants. What remained in the vendor, Shackleford, or in Upshaw, his assignee? No title, no interest in the land. If anything remained, it was simply a lien for the unpaid purchase money, as against Buckner, while the land remained unsold by him. Twenty-nine years after this sale to Buckner, Upshaw, pretending to be the owner of this equitable title, obtained a patent from the United States. If he had, at the time he so procured the patent, no title to the land, and no lien upon it for the purchase money, the consequence is irresistible that he holds it as trustee for the real owner. I have shown he had no title to the land. Let us now inquire if he had a lien upon it. The lien of the vendor for his unpaid purchase money arises as well upon the sale of an equitable interest as upon a conveyance of the legal title. It is a creature of equity raised between the immediate parties to the contract. and sustained only against subsequent purchasers when affected with notice of it. There is no other lien or charge upon an estate so shadowy and so little obvious as this lien of the vendor. It is never to be found of record; it does not depend upon possession of the estate or the muniments of the title. It is not sustained by any matter of constructive notice, but only exists as to third persons fixed with actual notice. The essence of this lien is that the vendor looks to the land alone for the money, or the land and the purchaser. If he takes collateral security, such as the note of a third person, or if he takes simply a mortgage on the land for only a part of the purchase money, or if he does any other act manifestative of an intention to look primarily to any other fund than the land,*the lien [*63 never arises. Or when the lien has first attached, if he assigns the note of the vendee, or if he is guilty of laches, the lien is gone. We claim no lien ever existed upon this e land in favor of Shackleford, or Upshaw, his | others; they are to pay for the land to you, not assignee. 1. Because the contract of sale looks to a resale, and to the fund arising upon such resale, as the fund for payment, and does not look to the land. Shackleford agrees to wait for the unpaid purchase money until Buckner should sell the land. The moment the land is sold the purchase money becomes due; but, if it is not sold, the purchase money does not become payable until fourteen months after the date of the contract. Whenever the contract contains such consent to a resale, and looks to the fund to be produced on a re sale, there is no lien on the land. Sugl. Vend., 552; Er-parte Parker, Glyn & Jam.. 228: Coad v. Pollard, 9 Price, 544; 10 Price, 109.) 66 We do not pretend that Buckner was the agent of Shackleford in making the resale. and that, therefore, payment to him was payment to his principal. We do not put this as a case between principal and attorney. The simple question is, after such a contract, after such an agreement, after a sale to a third person, and payment in full by that third person, can the vendor say to the new purchaser, You have paid your immediate vendor just as I agreed you should, and I took his covenant. I relied • upon his faith to pay me the money; but he has not done so, and I now require that the loss shall fall upon you and not upon me, and that you shall now pay me again for the same land which I consented you should first pay for to another!" Now, putting the case in the strongest light for Upshaw, placing him in the situation of a vendor, not the mere assignee of the vendor, investing him with a legal title retained upon the sale to Buckner, yet, is it not clear that a court of equity would compel him at once to convey that legal title to the second vendee, who had fully paid his purchase money? Whenever the holder of a legal title encour ages a purchaser to deal with another for his estate, or invests another person with the means of imposing upon others as the true owner, or is silent when a purchaser is dealing with an64*] other for his estate, a court of equity will never allow him afterwards to assert that legal title against the purchaser. In a court of equity, when the conscience of the party is not affected, the holding of the legal te is everything. A satisfied mortgage, an outstanding term, a deed surreptitiously obtained, are equally available; but, where in reference to third persons the conduct of the holder of the legal title has been such as that it would he inequitable to assert it against the holder of the equitable title, then a legal title is no protection. (1 P. Williams, 393; 3 Russel, 1; Sugd. Vend, 728: Finch's Rep., 28.) It is said the complainants were bound to know what sort of title Buckner had, that they must be taken to know that he held only by contract and had not paid his vendor. Take it as granted, and suppose them to have had notice of the very article under which Buckner held, and what then? What is the language there held by Shackleford? "I conni that, in order to raise a fund to pay me what is yet due, you may sell this land to HOWARD 1. U. S., Book 11. to me, and you are to pay it to me. I look, not to the land, but to the fund which is to come in place of the land, and I trust you to receive and pay it over to me. I give you fourteen months to pay the money, if you do not sooner sell the land; but the moment you sell it, if it be to-morrow, you are to take the money you receive and out of it pay me my debt." We say, therefore, because of this clause of resale, there was no lien on the land. II. Lien lost by laches. But, if there was a lien for the purchase money after the sale to the complainants, we next claim that it was lost long ago by laches of Upshaw. We have shown that Upshaw stood, not as vendor, but simply as his assignee of the debt due for the purchase money. He was once connected with this land as a purchaser; but we have shown that he released the interest so acquired to Shackleford, and agreed to take a certain sum of money instead of the land. He had, therefore, in fact, on a money claim. The land was never his, nor intended to become his. We take it as granted, in this view of the case, that he might look to the land as security or means of payment, but he had *other [*65 security, the money due from Coats for a part, and the responsibility of Buckner for the whole. Time and laches would bar him of all these securities. The debt was the principal thing, the lien on the land the mere incident. Time would bar the debt. It would be most singular that after a lapse of thirty years we should find not only this debt yet valid, but the mere collateral lien which attended it also in full vigor. It would require sleepless vigilance to bring that about. Instead of this, there has been, so far at least as the lien is concerned, the most culpable negligence. The Coats bond covered only part of the debt, £250 out of £420; for the difference, £170, Upshaw could look only to Buckner or the land. Nothing appears to show that any step was taken by Upshaw on the Coats claim. A suit had been brought upon it in 1798, three years before he became the assignee of Shackleford. Judgment was rendered on it in 1800, and the writ of ca. sa, had been in that year returned, not found. The original suit had been commenced by capias, bail given, but no suit appears even to have been brought on the bailbond. An alias ca, sa, in 1801, never returned, is the last step taken upon the judgment. For the nine succeeding years no step is taken. On the 4th January, 1809, Buckner takes the matter in hand, and gives a power of attorney to Marshall to collect the money from Coats. In 1810, a bill is filed, in Buckner's name, against Coats's representatives, to set aside a fraudulent settlement, which is continued for ten years, and then dismissed upon the default of the plaintiff, December, 1820. There is no evidence of the slightest action of Upshaw in these proceedings, nor is any thing of the sort stated in the answer. The only statement in the answer is, that the suit against Coats "was diligently prosecuted." It is not said by whom. We have seen, however, how diligently. Then as to the claim on Buckner. The steps taken by Buckner are the following: In April, 1804 (three years after the assign- | and obtains a patent from the United States by ment from Shackleford), Upshaw sent by John means of his deed from Roy, the warrantee, H. Upshaw to demand the money. It was not which deed was obtained in confirmation of a paid, and the claim was put by John H. Upshaw contract which he had released and rescinded; in the hand of O'Bannon for collection, who and at last in 1829, after these complainants received $200 from Buckner, but did nothing had been in peaceable possession, to his knowledge, for thirty years, he brings his last ejectment, and seeks to turn them off the land. more. 66*] *In December, 1805, Upshaw assigned £500 of the Buckner debt to John H. Upshaw, and gave him an order on O'Bannon, April 1, 1807, to receive the money if collected. This order was protested for nonpayment. Nothing further is done for seven years; until February, 1814, when Upshaw commences a suit, in his own name, against Buckner, on the Shackleford contract. Buckner demurred to declaration, on the ground that the action should have been brought in Shackleford's name, and the demurrer was sustained, and judgment upon it against Upshaw at May Term, 1815. This was the end of all vigilance as to Buckner, who lived until 1820, and then died possessed of large real and personal estate. His estate has since been settled, nd it appears it was not necessary to sell his real estate to pay his debts. This is the sum total of vigilance as to Coats and Buckner, showing the most tardy proceedings, and those defeated by the gross ignorance of Upshaw's agents. Now, it would be strange if all this delay has not wholly defeated all prospect of a recovery, of either the Coats claim or the debt against Buckner. In all probability the Kentucky statute has long since barred an action in favor of Shackleford or Buckner; or, if there be no limitation in that State as to specialty debts, as we believe it is the case, the presumption of payment is conclusive. And the Virginia statute has barred the action against Coats's bail, or against the sheriff for failing to return the last ca. sa. Or, if there was no bar by limitation or presumption, the assets of Coats and Buckner are beyond the reach of their creditors. One has been dead nearly forty years, the other (Buckner) twenty-two years. With what conscience can Upshaw, after all this delay and loss, seek to make these purchasers from Buckner again pay for their lands? If he had come forward in good time, they undoubtedly might have re-imbursed themselves, by action against Buckner, either upon the covenants in his deed or (by subrogation) on the contract with Shackleford; but as it is, his negligence has put that beyond reasonable probability. But if Upshaw had been vigilant against Coats and Buckner, it is no excuse for his laches as against these complainants. He did know, as early as 1799, that these complainants were in possession of these lands, claiming and 67*] improving them as their own. *Now, in 1815 he was pursuing Buckner for the money; and up to 1820 the suit in chancery was going forward as to the Coats claim. He still considered the contract as open, and never makes any demand of these complainants. In 1818 he seeks to turn them out of posession by an action of ejectment. He does not ask them for the money. He does not exhibit his right to receive it; but demands their land, and when he comes to show his right to that, he exhibits nothing but a void patent. He then lies by for eight years, until 1826, Now, so far as his right to make these complainants pay him Buckner's debt is concerned, there has been no demand for thirty years, and in the mean time, in consequence of his laches, these complainants have lost all chance of indemnity from Buckner. Such laches will bar not only a mere equitable lien for purchase money, which is the most that Upshaw ever had, but in equity it would bar a legal title, especially one obtained from a mere trustee, under circumstances like the present. The rule prior in tempore does not apply where the holder of the first equity is guilty of laches. (Sug. Vend., 728, 729.) We claim, therefore, that Upshaw is not entitled to demand the Buckner debt from the complainants. If he is entitled to any relief against the complainants, it is only to that. But the decree of the Circuit Court goes quite beyond that, and gives him the land itself, and, in addition, a sum of money for rents and profits larger than the Buckner debt, principal and interest! This part of the decree proceeds upon the idea that he sold this land-that he stands as vendor-his purchase money unpaid-guilty of no laches; and that these complainants, as purchasers, have refused to pay him their purchase money, or have wrongfully delayed it so long, that he can rescind it, and take back his land. I have already shown the gross laches on his part, so gross, that if he was the immediate vendor of the complainants, *and [*68 they had agreed to pay him the purchase money, he could not recover it, but it would long ago have been barred, or presumed to be paid. But the complainants, what have they done to lose their land to Upshaw? He is not their vendor. He is (as has been shown) the mere assignee of a debt, never looking to this land but as a means of securing its payment. He has never demanded payment of them. With full knowledge, he allowed them to go on for thirty years, wasting the best of their lives in reclaiming this land from the wilderness. They have been guilty of no laches-of no bad faith. They say in their bill that they were in total ignorance of his claim, or of any defect in their title, until he recovered against them in the last ejectment; and all this Upshaw admits in his answer. They never refused to pay the Buckner debt, for it was never demanded of them. And if they had refused, that refusal would not have prejudiced them; but they still would have saved their land, by application to equity. That debt was not of their contracting. It was res inter alios. They had a right to have it fully sifted in this court. No one can doubt this. Again. If it were the case of vendor and vendee, before the vendor can count time and laches against the vendee, and go for a rescission, he must show himself ready and able to |