JOHNSON, District Judge.
The material facts shown by tlie pleadings and evidence in this case are as follows:—
That on the first day of April, 1S34, the complainant Pintard purchased of the defendant Tunstall, as evidenced by a writing under the hand and seal of Tunstall, the south-east quarter of section one, in township eighteen south of range one west, and a part of the south-west fractional quarter of section six in township eighteen south of range one east, for the consideration of 1,500 dollars, paid by Pintard to Tunstall. An improvement having been made on the southeast quarter of section one, Tunstall claimed a preemption right thereto under the preemption act of 1814, was in the possession thereof, and transferred and delivered possession to Pintard, and bound himself to convey the same by a good and sufficient title, sosoon as the patent issued from the president of the United States. That on the 24th day of July, 1S34, a preemption right and a certificate of purchase was granted and issued to said Tunstall for such quarter section of land under the preemption act of the 12th- Of April, 1814, by the land-officers at Little Rock. That Pintard resided on said land during the year 1S34, built additional houses, : extended the clearing, and cultivated seventy | or eighty acres during that year. That, be-i ing so in possession of said land, Pintard, on [.the 23d day of March, 1835, bargained and Í sold to William Bodes the said quarter sec- ! tion of land and so much of said south-west ] fractional quarter of section six adjoining ; thereto, ás would make the quantity of two i hundred acres, at and for the price of forty | dollars per acre, binding himself in writing ¡ to convey the same by a general warranty ! deed so soon as the patents could be procured; and, to secure the payment of the purchase-money, said Bodes executed his two promissory notes for $4,000 each, the first due and payable on the 1st of March, 1836, the second due and payable one year thereafter; and thereupon Pintard delivered possession of said land, and improvements thereon, to said Bodes. That subsequently the said Bodes, by a contract in writing, signed by himself and the defendant Goodloe, on the 13th March, 1S37, bargained and sold the said tracts of land and improvements thereon to said Goodloe, for the sum of sixty-five dollars per acre, the said Goodloe stipulating in said contract to pay, as part of the price, the purchase-money due by said Bodes to Pintard, as soon as the title with general warranty should be made to him. Bodes thereupon delivered possession of said tracts of land and improvements to Goodloe, who has held the same ever since. That on the 24th of February, 1838, the said preemption right and certificate of purchase, by Tuns-tall, was declared to be null and void by the commissioner of the general land-office at the city of Washington, upon the ground that the land was not the property of the United States until the ratification of the treaty with the Quapaw Indians, on the 24th of August, ISIS, and directed the land-officers at Little Bock to refund the said Tunstall the purchase-money paid by him. That on the 9th of April, 1840, Goodloe obtained a preemption right in his own name for said quarter section of land, by virtue of his occupancy thereof, under the preemption act of the 22d of June, 1838 [5 Stat. 251], and on the 3d day of March, 1841, obtained a patent therefor from the president of the United States. That on the 2Stli of March, 1838, Goodloe paid to Pintard $600, and on the 31st of May, 1839, the further sum of $1.-303.S2, for which credits are indorsed on one of the promissory notes executed by Bodes . to Pintard, for the purchase-money of said land, and no other or further payments have been made by Bodes or Goodloe in discharge of said two promissory notes. It is admitted that Bodes resides in Kentucky, and is utterly insolvent. From the proof in the case it is difficult to ascertain the precise quantity of land conta ined in the south-west frac[704]*704tional quarter of section six, which Pintard sold to Rodes, and Rodes to Goodloe; but taking the bond of Benjamin Taylor to Tunstall for its conveyance, and the admission of Goodloe in his answer, as the best evidence, there appears to be about eleven acres; Goodloe having obtained possession of Taylor’s bond to Tunstall for the conveyance of said land, he seems to admit his liability to Pintard to that extent, and avers that he has more than paid for the same.
This bill is filed by Pintard, praying a decree against Goodloe for the remainder of the purchase-money due him for said tracts of land, and claiming a lien thereon to have them subjected to sale for the payment of said money. Upon the foregoing,facts and circumstances two questions arise: First, is Goodloe personally liable to Pintard for the purchase-money agreed to be paid by Rodes; and secondly, has Pintard a lien upon the lands for the payment of the purchase-money yet unpaid? It may be material to remark, that Goodloe, having purchased-and received possession of the land from Rodes, who had purchased and received the possession from Pintard, Goodloe holds the lands under Pintard, and there exists a privity of estate between them. Pintard and Goodloe stand in the relation of vendor and vendee of the estate. The principal ground upon which Goodloe resists the payment of the purchase-money to Pintard is, that Pintard never had any good and valid claim or title to the land, either in law or equity, and therefore is not entitled to demand and receive the con-' sideration agreed to be paid. Pintard purchased the land of Tunstall, who gave him his bond for the conveyance of the legal title so soon as it could be obtained from the United States. Tunstall claimed the land as a preemption right under the preemption act of 1S14, and on the 24th day of July, 1834; and before Pintard sold to Rodes, a right of preemption and certificate of purchase was granted and issued to Tunstall for the said south-east quarter of section one, by the land-officers at Little Rock. Subsequently to Pintard’s sale to Rodes, and Rodes’ sale to Goodloe, namely, on the 24th day of February, 183S, this right of preemption and certificate of purchase was declared to be null and void by the commissioners of the general land-office. The title, then, under which Pintard held the land, was defective and invalid. But Goodloe, instead of claiming a rescission of his contract, and surrendering possession of the land, which he had a perfect right to do, continued to hold it, applied for and obtained a preemption right thereto in his own name, by virtue of his occupancy, and has obtained the legal title from the United States.
Under these circumstances, the doctrine is well established that Goodloe is to be considered as a trustee for Pintard, under whom he held the land, and that, all acts done by him to perfect the title while in possession, enure to the benefit of Pintard. The vendor and vendee, and assignees and purchasers from the vendee, stand in the relation of landlord and tenant, neither the vendee nor the purchasers from him are permitted to disavow the vendor’s title; and where they buy up a better title than that of the vendor, and the latter has been guilty of no fraud, the vendor can only be compelled to refund the amount of money paid for the better title. This doctrine is clearly held by the supreme court of the United States in the case of Galloway v. Finley, 12 Pet. [37 U. S.) 295.
The case of Searcy v. Kirkpatrick (Cooke [Tenn.] 211) decided by the supreme court of Tennessee, is in all its important and material features precisely analogous to the present case.
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JOHNSON, District Judge.
The material facts shown by tlie pleadings and evidence in this case are as follows:—
That on the first day of April, 1S34, the complainant Pintard purchased of the defendant Tunstall, as evidenced by a writing under the hand and seal of Tunstall, the south-east quarter of section one, in township eighteen south of range one west, and a part of the south-west fractional quarter of section six in township eighteen south of range one east, for the consideration of 1,500 dollars, paid by Pintard to Tunstall. An improvement having been made on the southeast quarter of section one, Tunstall claimed a preemption right thereto under the preemption act of 1814, was in the possession thereof, and transferred and delivered possession to Pintard, and bound himself to convey the same by a good and sufficient title, sosoon as the patent issued from the president of the United States. That on the 24th day of July, 1S34, a preemption right and a certificate of purchase was granted and issued to said Tunstall for such quarter section of land under the preemption act of the 12th- Of April, 1814, by the land-officers at Little Rock. That Pintard resided on said land during the year 1S34, built additional houses, : extended the clearing, and cultivated seventy | or eighty acres during that year. That, be-i ing so in possession of said land, Pintard, on [.the 23d day of March, 1835, bargained and Í sold to William Bodes the said quarter sec- ! tion of land and so much of said south-west ] fractional quarter of section six adjoining ; thereto, ás would make the quantity of two i hundred acres, at and for the price of forty | dollars per acre, binding himself in writing ¡ to convey the same by a general warranty ! deed so soon as the patents could be procured; and, to secure the payment of the purchase-money, said Bodes executed his two promissory notes for $4,000 each, the first due and payable on the 1st of March, 1836, the second due and payable one year thereafter; and thereupon Pintard delivered possession of said land, and improvements thereon, to said Bodes. That subsequently the said Bodes, by a contract in writing, signed by himself and the defendant Goodloe, on the 13th March, 1S37, bargained and sold the said tracts of land and improvements thereon to said Goodloe, for the sum of sixty-five dollars per acre, the said Goodloe stipulating in said contract to pay, as part of the price, the purchase-money due by said Bodes to Pintard, as soon as the title with general warranty should be made to him. Bodes thereupon delivered possession of said tracts of land and improvements to Goodloe, who has held the same ever since. That on the 24th of February, 1838, the said preemption right and certificate of purchase, by Tuns-tall, was declared to be null and void by the commissioner of the general land-office at the city of Washington, upon the ground that the land was not the property of the United States until the ratification of the treaty with the Quapaw Indians, on the 24th of August, ISIS, and directed the land-officers at Little Bock to refund the said Tunstall the purchase-money paid by him. That on the 9th of April, 1840, Goodloe obtained a preemption right in his own name for said quarter section of land, by virtue of his occupancy thereof, under the preemption act of the 22d of June, 1838 [5 Stat. 251], and on the 3d day of March, 1841, obtained a patent therefor from the president of the United States. That on the 2Stli of March, 1838, Goodloe paid to Pintard $600, and on the 31st of May, 1839, the further sum of $1.-303.S2, for which credits are indorsed on one of the promissory notes executed by Bodes . to Pintard, for the purchase-money of said land, and no other or further payments have been made by Bodes or Goodloe in discharge of said two promissory notes. It is admitted that Bodes resides in Kentucky, and is utterly insolvent. From the proof in the case it is difficult to ascertain the precise quantity of land conta ined in the south-west frac[704]*704tional quarter of section six, which Pintard sold to Rodes, and Rodes to Goodloe; but taking the bond of Benjamin Taylor to Tunstall for its conveyance, and the admission of Goodloe in his answer, as the best evidence, there appears to be about eleven acres; Goodloe having obtained possession of Taylor’s bond to Tunstall for the conveyance of said land, he seems to admit his liability to Pintard to that extent, and avers that he has more than paid for the same.
This bill is filed by Pintard, praying a decree against Goodloe for the remainder of the purchase-money due him for said tracts of land, and claiming a lien thereon to have them subjected to sale for the payment of said money. Upon the foregoing,facts and circumstances two questions arise: First, is Goodloe personally liable to Pintard for the purchase-money agreed to be paid by Rodes; and secondly, has Pintard a lien upon the lands for the payment of the purchase-money yet unpaid? It may be material to remark, that Goodloe, having purchased-and received possession of the land from Rodes, who had purchased and received the possession from Pintard, Goodloe holds the lands under Pintard, and there exists a privity of estate between them. Pintard and Goodloe stand in the relation of vendor and vendee of the estate. The principal ground upon which Goodloe resists the payment of the purchase-money to Pintard is, that Pintard never had any good and valid claim or title to the land, either in law or equity, and therefore is not entitled to demand and receive the con-' sideration agreed to be paid. Pintard purchased the land of Tunstall, who gave him his bond for the conveyance of the legal title so soon as it could be obtained from the United States. Tunstall claimed the land as a preemption right under the preemption act of 1S14, and on the 24th day of July, 1834; and before Pintard sold to Rodes, a right of preemption and certificate of purchase was granted and issued to Tunstall for the said south-east quarter of section one, by the land-officers at Little Rock. Subsequently to Pintard’s sale to Rodes, and Rodes’ sale to Goodloe, namely, on the 24th day of February, 183S, this right of preemption and certificate of purchase was declared to be null and void by the commissioners of the general land-office. The title, then, under which Pintard held the land, was defective and invalid. But Goodloe, instead of claiming a rescission of his contract, and surrendering possession of the land, which he had a perfect right to do, continued to hold it, applied for and obtained a preemption right thereto in his own name, by virtue of his occupancy, and has obtained the legal title from the United States.
Under these circumstances, the doctrine is well established that Goodloe is to be considered as a trustee for Pintard, under whom he held the land, and that, all acts done by him to perfect the title while in possession, enure to the benefit of Pintard. The vendor and vendee, and assignees and purchasers from the vendee, stand in the relation of landlord and tenant, neither the vendee nor the purchasers from him are permitted to disavow the vendor’s title; and where they buy up a better title than that of the vendor, and the latter has been guilty of no fraud, the vendor can only be compelled to refund the amount of money paid for the better title. This doctrine is clearly held by the supreme court of the United States in the case of Galloway v. Finley, 12 Pet. [37 U. S.) 295.
The case of Searcy v. Kirkpatrick (Cooke [Tenn.] 211) decided by the supreme court of Tennessee, is in all its important and material features precisely analogous to the present case. Searcy had made an entry of two hundred and twenty-eight acres of land, by virtue of a military warrant, which land he afterwards sold and covenanted to convey to Kirkpatrick. Some person fraudulently appropriated the warrant' to his own use, in consequence of which Searcy was" unable to obtain a grant for the land. Upon the sale Searcy delivered the possession of the land to Kirkpatrick, who continued to hold it, and finding out the condition of Searcy’s title, he made an entry of this land, as an occupant, in his own name, and obtained the legal title from the state. He after-wards brought a suit at law against Searcy on his covenant to convey, and recovered damages to the amount of ?1,700. Searcy filed a bill in chancery to enjoin this judgment, and the court decreed a perpetual injunction thereto, upon the payment by Searcy to Kirkpatrick of the sum he paid and expended in obtaining the title in his own name. Judge White, in giving the opinion of the supreme court, says; “If a man, under the belief that he has a good title to a tract of land, sells it. and either conveys or stipulates to convey it, putting at the same time the vendee in possession, and the vendee discovering a better title in some other person, purchases it with a view to prejudice the vendor, a court of equity will view the purchase as made for the benefit of the vendor, through the agency of his vendee, and will relieve the vendor from the obligation of his covenant by paying the money, with interest, which the vendee has advanced in purchasing up the preferable title.” In the present case Goodloe became entitled to a right of preemption by virtue of his possession and occupancy derived through Rodes from Pintard. Had he surrendered the possession when he discovered the defect in Pintard’s title, Pintard might have obtained by his occupancy a valid title to the land. By holding the possession Good-loe has prevented Pintard from acquiring a title to the lanS, and it would be highly inequitable and unjust to withhold from him also the consideration for which he sold it. Another ground of objection on the part of [705]*705the defendant Goodloe, to his liability for the purchase-money to Pintard, is, that his promise to pay was not made to Pintard, but to Rodes. It is true that he entered into no contract with Tintard, but in his written contract with Rodes, by a fair construction of its terms, he expressly bound himself to pay to Pintard me purchase-money due by Rodes, so soon as a good title should be made to him. It can hardly be doubted that this undertaking, made upon a valuable consideration, in discharge of his debt to Rodes, and of Rodes’s debt to Pintard, will be enforced in a court of equity. It is consonant to the principles of equity and justice, and I know of no technical objections to its enforcement.
The conclusion at which I have arrived is, that Goodloe is personally bound to Pintard for the payment of the purchase-money due him for the land, after deducting the amount paid by Goodloe for the better title, to the United States, and all expenses incident to the procurement of that title.
The remaining question is, had Pintard a lien on the land sold by him so as to subject it to sale, if necessary, for the payment of the purchase-money due him for sale? No doctrine is more firmly established by a uniform current of decisions, than that the vendor of the land has a lien on the land for the amount of the purchase-money, not only against the vendee himself and his heirs and other privies in estate, but also against all subsequent purchasers having notice that the purchase-money remains unpaid. To the extent of the lien, the ven-dee becomes a trustee for the vendor and his heirs; and all other persons claiming under them, with such notice, are treated as in the same predicament. The principle upon which courts of equity have proceeded in establishing this lien in the nature of a trust is, that a person having gotten the estate of another, ought not in conscience, as between them, to be allowed to keep it and not pay the consideration money. A third person having full knowledge that the estate has been so obtained, ought not to be permitted to keep it without making such payment, for it attaches to him also as a matter of conscience and duty. It would otherwise happen, that the vendee might put another person into a predicament better than his own, with full knowledge of all the facts. See 2 Story, Eq. Jur. 463, and the authorities there cited. The lien attaches as a trust, whether the land be actually conveyed or contracted to be conveyed. 2 Sugd. Vend. 541; Smith v. Hibbard, 2 Dickens, 730.
Pintard, then, has a lien upon the lands sold by him, in the hands of the defendant Goodloe, for the payment of the purchase-money remaining unpaid with the abatement before stated. The amount paid and expended by Goodloe in obtaining the title to the land from the United States does not definitely appear from the evidence in the cause; and, indeed, it would not be expected that he could show with certainty all the expenses to which he was put in procuring said title. In his answer, he states the sum amounted to nine hundred dollars. I think it reasonable to allow this amount It appears that on the 20th of January, 1840, Goodloe loaned to Pintard two hundred dollars, for which a note was given, and is filed in this case; and it is admitted by Pin-tard, as a just credit, to be allowed to Good-loe.
Prom the bill, answers, exhibits, and proofs in the cause, the court is of opinion that the complainant is entitled to the relief prayed for in his bill of complaint.
Decree: It is ordered and decreed that the said defendant, Archibald W. Goodloe, do pay to said John M. Pintard the sum of ten thousand five hundred and fifty-two dollars, together with ten per cent, interest per annum thereon, from rendition of this decree, till paid; which sums, after deducting all the credits* before mentioned, to which said Goodloe is entitled, is found by the court here to be due from said Goodloe to the said Pintard. as the balance of thepurchase-money for the lands mentioned in the pleadings in this ease. And it is further ordered and decreed, that the said south-east quarter of section one, in township eighteen south of range one west, and eleven acres adjoining thereto, being the same sold by said Pintard to William Rodes, and by Rodes to Goodloe, in the south-west fractional 'quarter of section six, in township eighteen south of range one east, be and the same is hereby charged with the said sum of ten thousand five hundred and fifty-two dollars, and accruing interest, as a lien for said purchase-money; and that unless the said defendant, Archibald W. Goodloe, shall pay to the complainant, John M. Pintard, the said sum of money, with the accruing interest, on or before the first day of November, then and in that case, it is further ordered and decreed, that the lands just mentioned, or so much thereof as may be necessary to pay the sum before mentioned, be sold by a commissioner appointed by this court, to the highest and best bidder for cash in hand, at the court house, in the town of Columbia, Chicot county, state of Arkansas, after the said commissioner shall have advertised the same four weeks successively, in some newsDaner printed in this state, and shall have put up advertisements thereof at the said town of Columbia, and three other public places .in said county of Chicot And that the said commissioner, out of the proceeds of said sale, if sufficient therefor, shall pay, in the first place, all proper and legal expenses attending the execution of this decree. Secondly, shall pay to the complainant, or to his solicitors of record, the amount of principal and interest hereby awarded and decreed to the complainant; and thirdly, shall pay over to the defendant Goodloe, or to bis [706]*706properly authorized agent, any balance which may remain in his hands after satisfaction of the amount of the principal, interest, and charges aforesaid, and shall moreover deliver to the purchaser possession of the lands, and convey the same to him by and in fee-simple. to him and his heirs for ever, and shall make report of his proceedings in the premises to this court at the nest term thereof; and liberty is hereby reserved to the complainant to apply from time to time to the court for such further and other proceedings as may be necessary for the execution and carrying into complete effect the decree herein pronounced. And it is further ordered, that Johnson Chapman, of Columbia, in this state, is hereby appointed a commissioner for the purposes before mentioned, who shall be furnished with a certificate copy of this decree, which shall be to him a sufficient warrant for action in the premises. And the question of costs is reserved until the further order of this court herein.
From this decree. Goodloe entered into an appeal bond to stay the execution of the decree, took a transcript, and removed the case into the supremo court. Having departed this life during its pendency there, it was revived against Joseph P. Thudgill, his administrator.
[The decree was affirmed by the supreme court. 32 How. (58 ü. S.l 24.]
The bill as to Bodes and Tunstall dismissed.
Mr. Justice DANIEL concurred in tbe foregoing opinion and decree.