Simrall, J.:
Samuel 0. Dodge exhibited his bill in chancery against Evans and Adams, asserting a lien on land, against Adams, as the sub-vendee of Evans. The defendants demurred, which was sustained, and the bill was dismissed; and this is assigned for error. The important question raised in the record is, whether under the allegations of the bill the complainant is entitled to any relief.
In framing the bill, the pleader most probably supposed that because the promissory notes for the several installments of the purchase money, referred to the land and. the deed, that thereby was raised or created an equitable mortgage or [577]*577express lien. The averments of the bill are made on this theory of the complainant’s case, rather than on the idea of a vendor’s lien. In addition to the specific relief, the bill closes with the general prayer in these terms: “And for all such other and further relief, as, to your honor may appear proper and equitable under this bill.”
In Grimes v. French, 2 Atk., 141, though a general relief be prayed in the bill, “ at the bar you may pray a particular relief that is agreeable to the case made by the bill. ” As where the bill is brought for an annuity charged on land, it is not permissible to drop the demand for the annuity and insist on the land out of which the annuity issues, for that is another and different case.
In Wilkin v. Wilkin, 1 Johns. Ch. Rep., 116, the bill was brought not for partition strictly, but to carry into effect a partition formerly made between the parties. There was a failure of proof on the point of partition with partie ■. It was then claimed for the complainant that the court should go on and make partition. The general rule was stated by the chancellor to be, “ that other specific relief may be afforded, provided it be consistent with the case made by the bill.” In this instance there is no objection to the application of the rule on the ground of surprise or prejudice. Although relief was refused on other grounds (the denial of complainant’s title to the land), it was conceded that it was in the scope of the bill to decree a partition by the court.
Justice Story, in Eq. Plea., § 40, says: “If the plaintiff should mistake the relief to which he is entitled in his special prayer, the court may yet afford him the relief to which he has a right under the general prayer for relief, provided it is such relief as is agreeable to the case made by the bill.” It is said also, that the general prayer will be sufficient, without indicating special relief, and that on the hearing at the bar, the relief warranted by the case stated will be awarded. Story Eq. Plea., § 41. To this, however, there are many exceptions, such as for “ injunction, ne exeat,” etc.
The demurrer to the bill, it is urged, ought to have been [578]*578sustained, because from all that is averred non oonstat, but that security was taken for the money, upon which the creditor relied, and which would amount to a waiver of the lien. By the fact of the sale of real estate, whether the title be made or retained, there results a lien on the land for the amount of the purchase money, not only against the vendee and his heirs and privies, but against subsequent purchasers also, who have notice that the purchase money is unpaid. 2 Story Eq. Jurisprudence, § 1217; Chapman v. Brown, 6 Johns., 402. The vendee, and those claiming under him, become trustees for the vendor, if the sub-purchaser had notice. The rule was derived from the Roman law, which fastened a “ privilege ” in favor of the vendor upon the sale of a thing, whether moveable or immoveable, until the price was paid,- which followed it into whosesoever hands it might go, burdened with this right to subject it to sale for its original price, whether the transferee' had notice or not. This lien reserved by the civil law, ceased when the price was actually-paid, or where anything was taken in satisfaction of the price, although payment had not actually been made. The giving of a pledge or security was deemed equivalent to payment. 2 Story Eq., § 1226. We have the same principle in our jurisprudence applied to real estate, but much modified. The lien results from the sale of land by implication of law. There need not be an agreement or oonventio mentium on the point. It would follow, then, that if the vendee, or those deriving title from him, claim exemption from the lien, it devolves on them to show that it never existed or that it has been extinguished.
The statement of the bill is that Samuel C. Dodge sold and conveyed to Wesley G. Evans the land in dispute, and that Evans executed and delivered his three several promissory notes, payable respectively at one, two and three years to Dodge — that two of the notes are unpaid. The deed and notes are exhibited with the bill. From this transaction, the lien was implied, and Evans held as trustee for the benefit of Dodge’s equity. There is also the allegation of [579]*579an agreement that the land and the improvements thereon should stand subject to, and remain a lien and mortgage for the purchase money, as will appear by reference to the exhibits, the deed and notes. The deed contains a description of the notes, as representing the price to be paid for the land. The notes identify themselves with the deed and the land. And it is true as a proposition of law, that both parties did agree that a lien existed, or was deduced from these papers, whether there was such express agreement or not. For it does not appear from them that the vendor waived, abandoned, or in any wise extinguished it.-
We do not agree with the counsel for the demurrant that it was necessary to have stated in the bill that the vendor, Do lge, did not take security for his debt. It is always good pleading to make a prima, facie case. Matters of avoidance, or satisfaction of the plaintiffs right, come more properly from the other side. Judge Story says the burden of proof is on the vendee to show that the lien has been displaced or waived by consent of parties. 2 Story Eq. Juris., § 1224. In Garson v. Green, 1 Johns. Ch. Rep., 309, Chancellor Kent held, “ that prima facie the lien exists on the land, and it lies on the purchaser to show that the vendor agreed to rest on other security.” If this be so, surely the complainant cannot be put to aver in his bill, a fact, the onus probandi of which is on the defendant.
In Stewart v. Ives, 1 S. & M., 197, it is said the lien continues so long as the land remains in the hands of the original purchaser, unless waived by some act of the party.
The rule is very axxcient, that if a party has earned out his own security, the law will not create axxother in aid. Bond v. Kent, 2 Verm. Rep., 281. Hence, has come the doctrine, that if the vendor takes collateral personal security, as a bond or note with a security or indorser, or a mortgage or pledge, etc., he has elected his security, and will be taken to waive that which the law would imply. Gilman v. Brown, 1 Mason Rep., 212; Clower v. Rawlings, 9 S. & M., 128.
There must be some affirmative act done by the vendor,, to [580]*580waive the lien. Ex-parte Gyde, 1 Glyn & Jamison, 325. Bond taken and receipt given for the purchase money, will not discharge the lien, if the money is notpaid. Saunders v. Lisley, 2 Ball & Bea. 514. Nor will the fact that that vendor has taken bills for the amount of the purchase money. Bills of exchange are not, in such cases, prima facie,
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Simrall, J.:
Samuel 0. Dodge exhibited his bill in chancery against Evans and Adams, asserting a lien on land, against Adams, as the sub-vendee of Evans. The defendants demurred, which was sustained, and the bill was dismissed; and this is assigned for error. The important question raised in the record is, whether under the allegations of the bill the complainant is entitled to any relief.
In framing the bill, the pleader most probably supposed that because the promissory notes for the several installments of the purchase money, referred to the land and. the deed, that thereby was raised or created an equitable mortgage or [577]*577express lien. The averments of the bill are made on this theory of the complainant’s case, rather than on the idea of a vendor’s lien. In addition to the specific relief, the bill closes with the general prayer in these terms: “And for all such other and further relief, as, to your honor may appear proper and equitable under this bill.”
In Grimes v. French, 2 Atk., 141, though a general relief be prayed in the bill, “ at the bar you may pray a particular relief that is agreeable to the case made by the bill. ” As where the bill is brought for an annuity charged on land, it is not permissible to drop the demand for the annuity and insist on the land out of which the annuity issues, for that is another and different case.
In Wilkin v. Wilkin, 1 Johns. Ch. Rep., 116, the bill was brought not for partition strictly, but to carry into effect a partition formerly made between the parties. There was a failure of proof on the point of partition with partie ■. It was then claimed for the complainant that the court should go on and make partition. The general rule was stated by the chancellor to be, “ that other specific relief may be afforded, provided it be consistent with the case made by the bill.” In this instance there is no objection to the application of the rule on the ground of surprise or prejudice. Although relief was refused on other grounds (the denial of complainant’s title to the land), it was conceded that it was in the scope of the bill to decree a partition by the court.
Justice Story, in Eq. Plea., § 40, says: “If the plaintiff should mistake the relief to which he is entitled in his special prayer, the court may yet afford him the relief to which he has a right under the general prayer for relief, provided it is such relief as is agreeable to the case made by the bill.” It is said also, that the general prayer will be sufficient, without indicating special relief, and that on the hearing at the bar, the relief warranted by the case stated will be awarded. Story Eq. Plea., § 41. To this, however, there are many exceptions, such as for “ injunction, ne exeat,” etc.
The demurrer to the bill, it is urged, ought to have been [578]*578sustained, because from all that is averred non oonstat, but that security was taken for the money, upon which the creditor relied, and which would amount to a waiver of the lien. By the fact of the sale of real estate, whether the title be made or retained, there results a lien on the land for the amount of the purchase money, not only against the vendee and his heirs and privies, but against subsequent purchasers also, who have notice that the purchase money is unpaid. 2 Story Eq. Jurisprudence, § 1217; Chapman v. Brown, 6 Johns., 402. The vendee, and those claiming under him, become trustees for the vendor, if the sub-purchaser had notice. The rule was derived from the Roman law, which fastened a “ privilege ” in favor of the vendor upon the sale of a thing, whether moveable or immoveable, until the price was paid,- which followed it into whosesoever hands it might go, burdened with this right to subject it to sale for its original price, whether the transferee' had notice or not. This lien reserved by the civil law, ceased when the price was actually-paid, or where anything was taken in satisfaction of the price, although payment had not actually been made. The giving of a pledge or security was deemed equivalent to payment. 2 Story Eq., § 1226. We have the same principle in our jurisprudence applied to real estate, but much modified. The lien results from the sale of land by implication of law. There need not be an agreement or oonventio mentium on the point. It would follow, then, that if the vendee, or those deriving title from him, claim exemption from the lien, it devolves on them to show that it never existed or that it has been extinguished.
The statement of the bill is that Samuel C. Dodge sold and conveyed to Wesley G. Evans the land in dispute, and that Evans executed and delivered his three several promissory notes, payable respectively at one, two and three years to Dodge — that two of the notes are unpaid. The deed and notes are exhibited with the bill. From this transaction, the lien was implied, and Evans held as trustee for the benefit of Dodge’s equity. There is also the allegation of [579]*579an agreement that the land and the improvements thereon should stand subject to, and remain a lien and mortgage for the purchase money, as will appear by reference to the exhibits, the deed and notes. The deed contains a description of the notes, as representing the price to be paid for the land. The notes identify themselves with the deed and the land. And it is true as a proposition of law, that both parties did agree that a lien existed, or was deduced from these papers, whether there was such express agreement or not. For it does not appear from them that the vendor waived, abandoned, or in any wise extinguished it.-
We do not agree with the counsel for the demurrant that it was necessary to have stated in the bill that the vendor, Do lge, did not take security for his debt. It is always good pleading to make a prima, facie case. Matters of avoidance, or satisfaction of the plaintiffs right, come more properly from the other side. Judge Story says the burden of proof is on the vendee to show that the lien has been displaced or waived by consent of parties. 2 Story Eq. Juris., § 1224. In Garson v. Green, 1 Johns. Ch. Rep., 309, Chancellor Kent held, “ that prima facie the lien exists on the land, and it lies on the purchaser to show that the vendor agreed to rest on other security.” If this be so, surely the complainant cannot be put to aver in his bill, a fact, the onus probandi of which is on the defendant.
In Stewart v. Ives, 1 S. & M., 197, it is said the lien continues so long as the land remains in the hands of the original purchaser, unless waived by some act of the party.
The rule is very axxcient, that if a party has earned out his own security, the law will not create axxother in aid. Bond v. Kent, 2 Verm. Rep., 281. Hence, has come the doctrine, that if the vendor takes collateral personal security, as a bond or note with a security or indorser, or a mortgage or pledge, etc., he has elected his security, and will be taken to waive that which the law would imply. Gilman v. Brown, 1 Mason Rep., 212; Clower v. Rawlings, 9 S. & M., 128.
There must be some affirmative act done by the vendor,, to [580]*580waive the lien. Ex-parte Gyde, 1 Glyn & Jamison, 325. Bond taken and receipt given for the purchase money, will not discharge the lien, if the money is notpaid. Saunders v. Lisley, 2 Ball & Bea. 514. Nor will the fact that that vendor has taken bills for the amount of the purchase money. Bills of exchange are not, in such cases, prima facie, tobe considered as a substitute for the lien, but merely as a mode of payment. And it will rest on the purchaser to show that the vendor consented to rest on the collateral security alone. Grant v. Mills, 2 V. & B., 309.
The case stated in the bill is, that the land was sold and conveyed on a credit, and the notes of the vendee taken. The transaction is set out by averment, and the papers exhibited ; the whole of it purports to be disclosed, and on its face negatives the idea that any part of it is omitted. Adams purchased the land from Evans, and took a deed; the allegation is, that he had special notice of the existence of said “mortgage lien.” It is an erroneous deduction of law, in the pleader to denominate the “ equity ” of complainant “ a mortgage lien.” We take the statement to mean that Adams had notice that two instalments of the purchase money from Evans were unpaid. The deed to his vendor recited, that the sale was on credit, and that Evans had made promissory notes therefor. If he had “ special ” notice of the “ lien ” in favor of Dodge, he necessarily must have had knowledge that all of the purchase money had not been paid.
The primary object of the bill in the case cited from 1 Johns. Oh. Rep., was to procure the specific execution of a partition of land made in pais, if, under such a bill, failing to establish the conventional partition, the court could go on, and divide the land. In this case where the object of the bill is to enforce a lien on the land for the purchase, money, it is indulging in no larger latitude to hold, that where it appears from all the statements of the bill, that the equity is the vendor’s lien, and not an express or mortgage lien, under the prayer for general relief the court should extend to the complainant such redress as is agreeable to the case made by [581]*581the bill. Nor thereby would the defendants be surprised or prejudiced. By answer they can make full defense, that the lien has been waived by taking and resting upon other security, or otherwise. Wherefore we reverse the decree of the chancellor, render judgment here overruling the demurrer, and remand the cause for further proceedings, allowing the defendants sixty days from this date to plead or answer.