Woods, J.
— The appellee, Cauble, made complaint against the appellants, Silas Martin and John and Mary A. Huffman, and against Joseph B. and William H. H. Phillips, to enforce a vendor’s lien. The defendants Phillips have refused to join in the appeal.
[69]*69The complaint was in two paragraphs, to each of which each of the appellants filed a separate demurrer, which demurrers the court overruled and the appellants excepted. The appellants each filed a separate answer in general denial, and one or more. special defences, to which the plaintiff filed a reply in general denial.
The cause was submitted to the court for trial, upon a request of the defendants that the court make “a special finding of fact and conclusions of law,” which was done. The appellants each severally excepted to each conclusion of law; and thereupon each moved for judgment in his or her favor upon the special finding, which motions the court overruled, and the appellants severally excepted; and then each moved for judgment in his or her favor upon the pleadings, which motions were overruled and the exceptions preserved. The appellants then each filed a separate motion for a new trial, which was overruled and the ruling excepted to ; and thereupon the court gave a decree and order for the sale of the property as prayed for, as against the appellants, but judgment was given in favor of the defendants Phillips.
The assignments of error are, in substance:
1. The court erred in overruling each demurrer of the .appellants, respectively, to each paragraph of the complaint;
2. The court erred in its conclusions of law;
3. The court erred in overruling the motion of each appellant for judgment in his or her favor upon the special finding;
4. The court erred in overruling the motion of each appellant for judgment in his or her favor on the pleadings ;
5. The court erred in overruling the motion of each appellant for a new trial.
While the appellants filed separate motions for a new trial, the causes alleged for another trial were the same in all the motions, and were:
[70]*701. That the special finding of facts is not sustained by sufficient evidence;
2. That the conclusions of law are wrong;
3. That the decision of the court is not sustained by, but is contrary to, the evidence and the law.
It is plainly no cause for a new trial, that the conclusions of law were wrong. These conclusions are stated after the trial, and, though erroneous, can aifoi’d no ground for another hearing as to the facts.
The only respect in which it is claimed that any part of the finding of facts is not supported by sufficient evidence is upon the finding of notice to the appellant Martin of plaintiff’s claim to have a lien on the land when Martin purchased. The finding in this respect is simply that Martin was informed that the plaintiff had a mortgage on the land. There was direct testimony in support of this finding, and this court will not disturb the finding of the lower court on a disputed question of fact, if there is evidence in the record on which the finding can stand. This proposition is toó familiar to need the support of citations.
The other errors assigned present questions which must be determined by a consideration of the second paragraph of the complaint, in connection with the finding of facts and the conclusions of law stated thereon. The facts found, with one exception, to be hereinafter noticed, correspond substantially with the averments of the second paragraph of the complaint, and so it becomes unnecessary to examine the first paragraph; for, as upon the finding of facts the action must prevail or fall with the second paragraph, the ruling of the court upon the demurrer to the first, whether right or wrong, is immaterial. Graham v. The State, ex rel., 66 Ind. 386.
The complaint and special finding are long, and it is not necessary to set them out in full. The following sum[71]*71mary will be sufficient to afford a proper understanding of the questions which must be decided :
John and Mary Huffman are, and during the time of the* transactions brought in question were, husband and wife.
On the 8th day of Februaiy, 1870, the appellee, Cauble,. who was the plaintiff below, was the owner in fee and in possession of the real estate described in the complaint, and on said day, by a deed of general warranty, conveyed the same to the appellant Mary E. Huffman and put her and her husband in full possession. The deed was recorded December 27th, 1872. In consideration of said conveyance, said Mary agreed to pay the appellee $5,500, in instalments, falling due-respectively on the first days of January, 1871-2-3-4-5, for which instalments notes were given to appellee, signed by said John and Mary Huffman, bearing eight per cent., interest and waiving valuation laws.
Said Mary agreed to execute a mortgage on the land purchased, and upon three hundred and forty acres of other land, owned by her, and did sign, acknowledge and deliver to the appellee what purported to be such mortgage, and the same was supposed by all the parties to be a good and valid mortgage on the real estate therein described, to secure the aforenamed notes. Said John did not sign, or in any manner join in the execution of, the so-called mortgage, but said Mary alone signed and acknowledged the same. . The* appellee caused said mortgage to be recorded in the proper office, on the 10th day of February, 1872. Payments were* made on said notes, leaving a balance due appellee, at the* date of the decree, of $2,634.14.
The negotiations which resulted in said sale and conveyance were conducted by said John, who transacted the ' business and made the contract with the appellee, and it was by said John’s direction that the appellee made the conveyance to said Mary.
After receiving said conveyance, it is averred and found [72]*72that said John and Mary Huffman, at different times, sold and conveyed, directly or by mesne conveyances, different parcels of said land to their co-defendants, Phillips and Martin, each of whom was, at the time of making his purchase and receiving his deed, affected with notice of appellee’s claim and right to hold a lien on said land.
The substance of the conclusions of law* is :
1. That appellee, as vendor, held a lien for the unpaid part of the price for which he sold the land ;
' 2, That the mortgage of said Mary was void for all purposes;
3. That the promissory notes signed by said Mary were void as to her;
4. That, by accepting the notes and mortgage, the appellee did not waive his lien;
5. That James Reynolds, at the time of taking a conveyance of a portion of said real estate, had notice that a part of the purchase-money remained unpaid, and had notice of plaintiff’s claim;
6. That Martin, at the time of his purchase from Huffman, had notice that a part of the purchase-money due' appellee from John Huffman and wife was unpaid;
7. That,' by reason of her coverture, the plaintiff can not have a personal judgment against said Mary Huffman.
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Woods, J.
— The appellee, Cauble, made complaint against the appellants, Silas Martin and John and Mary A. Huffman, and against Joseph B. and William H. H. Phillips, to enforce a vendor’s lien. The defendants Phillips have refused to join in the appeal.
[69]*69The complaint was in two paragraphs, to each of which each of the appellants filed a separate demurrer, which demurrers the court overruled and the appellants excepted. The appellants each filed a separate answer in general denial, and one or more. special defences, to which the plaintiff filed a reply in general denial.
The cause was submitted to the court for trial, upon a request of the defendants that the court make “a special finding of fact and conclusions of law,” which was done. The appellants each severally excepted to each conclusion of law; and thereupon each moved for judgment in his or her favor upon the special finding, which motions the court overruled, and the appellants severally excepted; and then each moved for judgment in his or her favor upon the pleadings, which motions were overruled and the exceptions preserved. The appellants then each filed a separate motion for a new trial, which was overruled and the ruling excepted to ; and thereupon the court gave a decree and order for the sale of the property as prayed for, as against the appellants, but judgment was given in favor of the defendants Phillips.
The assignments of error are, in substance:
1. The court erred in overruling each demurrer of the .appellants, respectively, to each paragraph of the complaint;
2. The court erred in its conclusions of law;
3. The court erred in overruling the motion of each appellant for judgment in his or her favor upon the special finding;
4. The court erred in overruling the motion of each appellant for judgment in his or her favor on the pleadings ;
5. The court erred in overruling the motion of each appellant for a new trial.
While the appellants filed separate motions for a new trial, the causes alleged for another trial were the same in all the motions, and were:
[70]*701. That the special finding of facts is not sustained by sufficient evidence;
2. That the conclusions of law are wrong;
3. That the decision of the court is not sustained by, but is contrary to, the evidence and the law.
It is plainly no cause for a new trial, that the conclusions of law were wrong. These conclusions are stated after the trial, and, though erroneous, can aifoi’d no ground for another hearing as to the facts.
The only respect in which it is claimed that any part of the finding of facts is not supported by sufficient evidence is upon the finding of notice to the appellant Martin of plaintiff’s claim to have a lien on the land when Martin purchased. The finding in this respect is simply that Martin was informed that the plaintiff had a mortgage on the land. There was direct testimony in support of this finding, and this court will not disturb the finding of the lower court on a disputed question of fact, if there is evidence in the record on which the finding can stand. This proposition is toó familiar to need the support of citations.
The other errors assigned present questions which must be determined by a consideration of the second paragraph of the complaint, in connection with the finding of facts and the conclusions of law stated thereon. The facts found, with one exception, to be hereinafter noticed, correspond substantially with the averments of the second paragraph of the complaint, and so it becomes unnecessary to examine the first paragraph; for, as upon the finding of facts the action must prevail or fall with the second paragraph, the ruling of the court upon the demurrer to the first, whether right or wrong, is immaterial. Graham v. The State, ex rel., 66 Ind. 386.
The complaint and special finding are long, and it is not necessary to set them out in full. The following sum[71]*71mary will be sufficient to afford a proper understanding of the questions which must be decided :
John and Mary Huffman are, and during the time of the* transactions brought in question were, husband and wife.
On the 8th day of Februaiy, 1870, the appellee, Cauble,. who was the plaintiff below, was the owner in fee and in possession of the real estate described in the complaint, and on said day, by a deed of general warranty, conveyed the same to the appellant Mary E. Huffman and put her and her husband in full possession. The deed was recorded December 27th, 1872. In consideration of said conveyance, said Mary agreed to pay the appellee $5,500, in instalments, falling due-respectively on the first days of January, 1871-2-3-4-5, for which instalments notes were given to appellee, signed by said John and Mary Huffman, bearing eight per cent., interest and waiving valuation laws.
Said Mary agreed to execute a mortgage on the land purchased, and upon three hundred and forty acres of other land, owned by her, and did sign, acknowledge and deliver to the appellee what purported to be such mortgage, and the same was supposed by all the parties to be a good and valid mortgage on the real estate therein described, to secure the aforenamed notes. Said John did not sign, or in any manner join in the execution of, the so-called mortgage, but said Mary alone signed and acknowledged the same. . The* appellee caused said mortgage to be recorded in the proper office, on the 10th day of February, 1872. Payments were* made on said notes, leaving a balance due appellee, at the* date of the decree, of $2,634.14.
The negotiations which resulted in said sale and conveyance were conducted by said John, who transacted the ' business and made the contract with the appellee, and it was by said John’s direction that the appellee made the conveyance to said Mary.
After receiving said conveyance, it is averred and found [72]*72that said John and Mary Huffman, at different times, sold and conveyed, directly or by mesne conveyances, different parcels of said land to their co-defendants, Phillips and Martin, each of whom was, at the time of making his purchase and receiving his deed, affected with notice of appellee’s claim and right to hold a lien on said land.
The substance of the conclusions of law* is :
1. That appellee, as vendor, held a lien for the unpaid part of the price for which he sold the land ;
' 2, That the mortgage of said Mary was void for all purposes;
3. That the promissory notes signed by said Mary were void as to her;
4. That, by accepting the notes and mortgage, the appellee did not waive his lien;
5. That James Reynolds, at the time of taking a conveyance of a portion of said real estate, had notice that a part of the purchase-money remained unpaid, and had notice of plaintiff’s claim;
6. That Martin, at the time of his purchase from Huffman, had notice that a part of the purchase-money due' appellee from John Huffman and wife was unpaid;
7. That,' by reason of her coverture, the plaintiff can not have a personal judgment against said Mary Huffman.
Immediately after the conclusions thus stated and numbered is the following, which ought, perhaps, to be regarded as a general conclusion of law based upon the preceding conclusions and finding of facts, viz.: The court therefore finds for the plaintiff as against John Huffman, Mary A. Huffman and Silas Martin, and that there remains unpaid, -of the purchase-money of the real' estate conveyed by the plaintiff to said Maiy, the sum $2,634.14, for the payment of which plaintiff’s vendor’s lien should be foreclosed ■and said lands sold as other lands arc sold on execution; that the portion of said land ,still owned by and in the pos[73]*73session of said Mary should be first sold, and if thereby not enough should be realized to satisfy this decree, interest and costs, then the portion of the land which had been conveyed to said Martin should be sold to pay the remainder..
The fifth conclusion, which is in reference to Reynolds, seems to be irrelevant, besides being a statement of fact rather than of legal conclusion. It is expressly found that • the deed made to said Reynolds was in fact a mortgage, and that, on payment of the sum due thereon, said Reynolds and ■wife reconveyed the land to Mrs. Huffman, and none of the appellants claim title through Reynolds.
As to the sixth conclusion of law, it is insisted that the only fact in support thereof is the finding, that, when he made his purchase of a part of the land, Martin was informed by Huffman that the appellee held a mortgage against the land, and that, from this fact alone, the court had no right to infer that Martin had notice of the appellee’s claim for a vendor’s lien. The premise is true, but the conclusion is not sound. Notice of the existence of the mortgage under the circumstances shown in this case was clearly enough to put Martin on inquiry, and he is bound by all the information which he could, and presumably would, have obtained upon inquiry made of the appellee. See Wilson v. Hunter, 30 Ind. 466.
Upon the summary of the facts s’tated, a case is made substantially within the case of Humphrey v. Thorn, 63 Ind. 296, and upon the authority of that case, as well as upon the justice and right of this case, as the facts are found to have been, we think the appellee had, and had not waived, his equitable lien. The mortgage given by the wife was void, but it was taken in the belief that it was good. The intention to have a lien is thereby clearly, if not conclusively, shown; and we think that where a husband negotiates the purchase of real estate, and has the deed made to his wife, and gives his own notes for the purchase-money, under such [74]*74circumstances as existed in this case, the taking of - such notes by the vendor should not be deemed to be a waiver of the vendor’s lien. See Jones v. Vantress, 23 Ind. 533; Haugh v. Blythe’s Ex’rs, 20 Ind. 24; Perry v. Roberts, 30 Ind. 244; Anderson v. Tannehill, 42 Ind. 141.
Mrs. Huffman’s signature to the notes created no obligation, and John Huffman’s relation thereto was that of solo obligor. And it ought to make no difference in the merits or equities of a case, whether the husband negotiates the purchase in his own name, and gives his notes for the price, and has the deed made to his wife, or makes the purchase in the first instance for her and in her name, and has the deed made accordingly, and gives his own notes for the price. But it is objected both to the complaint and to the finding and decree, that it is not shown that the personal estate of Mary and of John Huffman had been exhausted, nor is it ordered that the same be exhausted before resoiVing to the land. Neither upon the complaint nor upon the facts found would it have been proper to give a personal judgment against Mrs. Huffman; and we think the plaintiff had a right to aver her coverture, in his complaint, and not wait for her to claim the benefit of it by answer. Indeed, but for the fact of her coverture he could not well establish his right, under the circumstances, to claim a vendor’s lien on the land.
Ought the plaintiff to be required to exhaust his remedy against the personal estate of John Huffman? This is a more difficult question. Upon the complaint as drawn, a personal judgment against him could not be rendered ; for it is averi’ed that he signed the notes with his wife, not as surety for their payment, but to show his consent as husband to the execution of the same by said Mary, and for no other purpose, and copies of the notes are not exhibited. The finding of the court, however, is, that he signed the notes as a maker. In this respect, .therefore, the complaint [75]*75is not supported by the finding. The truth is shown to be that the plaintiff took and still holds the notes- of said John for the price of his land. He might have so framed his complaint, by embodying the notes therein, as that a personal judgment could have been taken and first enforced against said John, before resorting to the land. We think this ought to have been done.
It is well settled that the vendor’s lien is not an original and absolute charge on the land, but only an equitable right to resort to it in case there be not sufficient personal estate. Bottorf v. Conner, 1 Blackf. 287; Conwell v. Claypool, 8 Blackf. 124; Scott v. Crawford, 12 Ind. 410; Bowen v. Fisher, 14 Ind. 104 ; Dibblee v. Mitchell, 15 Ind. 435. The citations might be multiplied; but these not only establish the general doctrine as stated, but show that while it is not necessary, under the code, to show that the personal remedy had already been exhausted, a judgment or decree directing' the sale of the land in the first instance is erroneous, unless it appears from the record that the defendant had no personal property subject to execution, out of which the judgment might be satisfied. It is clear to us that the remedy which the appellee, so far as appears from the record, has against John Huffman, is within the rule stated. On the facts found in this case, he was practically and really the contracting party in the purchase of the plaintiff’s land, and the plaintiff, having taken his personal obligation for the unpaid purchase-money, should exhaust his remedy thereon, before proceeding- to a sale of the land upon a foreclosure of his lien.
It is claimed on behalf of the appellee, that the appellants are not in a position to make this objection here, because they did not move in the court below to have the judgment modified or corrected. It is true, they made no such motion, but it will be observed that it is a part of the court’s general conclusion of law on the facts, that the appellee was entitled [76]*76to an order for the sale of the lands of appellants as upon execution to satisfy his claim, and the record, as already recited, shows that the appellants excepted to each conclusion of law. This presents the question.
The judgment, except as to the defendants Phillips, is re- . versed, with costs, and the cause remanded, with instructions to permit the appellee to amend his complaint.