Opinion of Hon. Isaag SteaiN, Special Judge.
This is an appeal from the decree of the Chancellor of the Pulaski Circuit Court.
The facts embraced in the case, are these: Richard O. Byrd purchased at public sale, and paid $401 00 for lots Nos. 4, 5 and 6, in Block No. 2, situate in the city of Little Rock, East of the Quapaw line, in the county of Pulaski, known as Gov. Pope’s addition to said city, and received therefor a certificate of purchase dated 19th November, 1833. This certificate of purchase he assigned and transferred to his son, Wm. J. Byrd, and requested the deed should be made to him. On 3d of March, 1835, in accordance with the assignment of the certificate, Gov. Pope executed a deed to these lots to Wm. J., being then a minor. Afterwards, Wm. J. Byrd, being the undisputed owner of lots Nos. 1, 2, and 3, in the same block, Richard 0. Byrd erected thereon a large tavern house; also a large two story brick warehouse, on lot 4, and the east part of lot 5, worth at least $8,000. He also erected a large three story brick building for stores, on lot 6, and twelve feet on the west part of lot No. 5. On the 23d of February, 1838, Wm. J., still a minor, conveyed, by deed, to R. 0. Byrd lot 6, and twelve feet off the west part of lot 5, for the consideration of $8,000, expended in building the ware-house and tavern. In the spring of 1843, Wm. J. arrived to the age of 21 years, and on the 13th of November, 1844, he confirmed, by deed, the deed of 1838.
On the 24th of June, 1840, Jones, Woodward & Co., obtained judgment against R. O. Byrd for the sum of $5,661 65, in the United States Circuit Court, upon which they sued out a writ of fi. fco., dated 21st June, 1841, and it was levied by the marshal on lot 6, and 12 feet of the west part of lot 5, and it was offered for sale 21th November, 1841, and not sold for want of bidders. A writ of soi.fi., to continue the lieirof judgment, was sued out and served on R. O. Byrd, alone, on the 19th of May, 1843, and the judgment was revived on the 19th April, 1844. Fi. fa. issued 16th May, 1844, on which nothing was done. On the 2d Nov., 1844, a vm. ox. issued, and on 25th Nov., 1844,lot 6, and 12 feet of the west part of lot 5, was sold by the marshal, and purchased by Geo. C. Watkins, plaintiffs’ attorney, for ten dollars, to whom the marshal executed deed therefor, properly acknowledged and recorded.
On the 10th of November, 1840, E. Pitman & Co., obtained two judgments against R. O. Byrd, amounting in the aggregate to about $5,000, in the Pulaski Circuit Court. On the first judg-meat, stay of execution was entered of record for six months, and on the second judgment, for eighteen months. On .the first, Jo. fa., issued 9th June, 1841, and levied on lot 6, and 12 feet of lot 5, which was appraised at $19,500, andnotbringingtwo thirds of its value, was not sold. On the 31st December, 1842, a writ of ven. ex. issued, returnable March term, 1843, and which was returned 28th March, 1843, with the following endorsements thereon, “ The sheriff of Pulaski county, is authorized to return this execution wisatisfled, as by agreement between plaintiff and •defendant, Ashley and Watkins, attorneys for plaintiffs.“This •execution is returned unsatified, as per order of plaintiff’s attorney, hereon endorsed, James Lawson, jr., sheriff, by N. B. Thommas-son, deputy.” “Beturned and filed, May 10th, 1843. IT. .Haralson, Clerk.”
On the second judgment, exécution issued Jth February, 1843, returnable May, 1843, and was ordered by the attorney to be re•turned unsatisfied, the same day it issued, endorsed as the first, ¡and was returned and filed, 10th of May, 1843. On the 19th of ■October, 1843, writs of sei.fa., to continue the liens, were sued out, on both judgments, and served on E. 0. Byrd, alone, and the judgments were revived on 10th of January, 1844. On the 1st November, 1844,fi. fa. issued on both judgments, and levied on lot .6, and 12 feet on the west part of lot 5, and sold 21st April, 1845, and bought by Geo. O. Watkins, the attorney, for $1001 00, for the use and benefit of the judgment creditors of said Byrd. For which he obtained the sheriff’s deed, properly acknowledged and recorded.
■ On the 20th May, 1842, Trapnall & Oocke obtained two judgments against Wm. J. Byrd, then a minor, for about $800 00. On the 25th June, 1842, y?, fa. issued on each, and returned nulla lona. Fi.fa. again issued, 25th February, 1845, and was levied on lot 4, and the east half of lot 5 and lot 6, and they were sold the 25th April, 1845, and purchased by F. W. Trapnall, for $225 00. For which he has the deed of the sheriff, properly ac-Anowledged and recorded.
On tbe 20tli of June, 1845, Trapnall and wife conveyed lot 4, and tbe east balf of lot 5, to tbe Bank of tbe State of Arkansas. Tbe United States recovered judgment against tbe Bank, in the United States Circuit Court, on tbe 25th of April, 1845, on which fi.fco. issued 1st November, 1845, and was levied on lots 4,5, and 6, and they were sold 26th of April, 1846, and purchased by F. W. Trapnall, who received a deed from tbe Marshal therefor, properly acknowledged and recorded. Since the commencement of this suit, Trapnall has conveyed his interest to lot 6, and west part of lot 5, to Geo. 0. Watkins.
On tbe 26th October, 1844, Watkins, as the attorneyfor Jones, Woodward & Co., E. Pitman & Co., Johnson & Duplain, and T. H. Hyde & Co., entered into an agreement with R. C. Byrd, by which he allowed or agreed to give $10,000 on their judgments, amounting in the aggregate to $17,000, for lot 6, and 12 feet off lot 5, provided Byrd would put the buildings thereon in good repair.
On the 5th of October, 1843, T. D. Merrick & Penno moved into these buildings, having rented them from the Byrds. Two* days after (7th October, 1843,) the buildings fell down. It was; immediately repaired in part by Merrick & Fenno, and they continued to occupy the buildings under the Byrds.
On tbe 22d November, 1843, R. C. Byrd and William J.Byrd executed jointly a deed of trust, by which they mortgaged, to the Bank of the State of Arkansas, lots Nos. 1, 2, and 3, in said 'block No. 2, upon which said tavern is situated, the property of Wm. J. Byrd; also tbe said lots Nos. 4, 5, and 6, embracing the brick ware-house, and tbe three story brick store-house, to secure their joint note for about $13,000, executed for a debt originally contracted by R. O. Byrd, excepting about $1200 by Wm. J. The mortgage deed authorized the Bank to control, receive, and apply all the rents of said property, to the payment of this debt,, due in nine annual installments, until full payment or sale of the mortgaged property, excepting seven or eight hundred dollars, to be applied in repairing tbe buildings.
On. the 29th. November, 1843, B. 0. Byrd contracted in writing with the complainant Wassell, a carpenter, to cut the three story store-houses down to two storys, and completely repair them, for which he was to be paid the Cincinnati prices of 1819, with 20 per cent, added. -The complainant, Wassell, was to be paid $200 on the 1st of December, and $100 on the 20th of December, 1843. The old materials to be worked in when it could. When new materials were necessary, B. O. Byrd was to furnish them. When the work was completed, it was to be measured by some one chosen by Byrd and the complainant, or some one chosen by him. And when the repairs were done, according to the agreement, the rents, arising from said houses, were to be applied to the payment of said Wassell for the residue of his work, and to be considered as money belonging to said Wassell until his claim was settled. This contract was signed by Wassell and B. O. Byrd, but never recorded.
The Bank and William J. Byrd agreed, in writing, that the above contract between Wassell and B. O. Byrd, should be fully ■carried out, and that the rents arising from said store-houses should be applied in paying Wassell for said repairs according to their agreement. Which is signed by the agents of the Bank •and Wm. J. Byrd, but not recorded.
On the 30th December, 1843, similar articles of agreement were entered into between Wassell and Wm. J. Byrd, to repair the ware-house on lot 4, and east part of lot 5, which was signed and sealed by Wassell and Wm. J., but not recorded. To which contract the Bank and B. 0. Byrd agreed, in writing, and that, when completed, the rents arising from said ware-house, to the amount of $500, should be applied to the payment of said Wassell, for repairing it, which was signed by the agents of the Bank and B. O. Byrd, but not recorded.
Soon after this, Wassell commenced and continued repairing these houses, under these contracts, till July, 1845, being frequently hindered and delayed in the mean time for want of suitable materials, the Byrds having failed to furnish materials, as they liad contracted. On tbe 15tb July, 1845, "Wassell notified tbe Bank that be was ready to complete tbe contracts of repairing, according to tbe agreements, and requesting and requiring tbe Bank to 'fnrnisb tbe necessary materials. Tbe Bank immediately refused and denied being bound by tbe contracts. Whereupon, Wassell abandoned tbe contracts, and applied to tbe Byrds to appoint some person to measure tbe work be bad done.' Tbe Byrds appointed one Sbaw, a carpenter, who, together with the* complainant, measured tbe work done on tbe store-houses, and found it to amount to tbe sum of $2,043 71, and tbe repairs on tbe ware-house to $569 82. A large number of other judgments were obtained against E. G Byrd, in 1839, 1840, and 1841, amounting in tbe aggregate to more than $20,000, under some of which tbe store-houses on lot 6 and part of lot 5 were sold, and purchased by E. W. Trapnall, but they are not necessary to tbe decision in tbe case, and are omitted. On tbe 9th October, 1845, Wassell filed bis lien on tbe property, in accordance with tbe statutes, crediting E. O. Byrd with $28 00, and Wm. J. Byrd with $50 00.
Wassell filed bis bill on ■ — ■ August, 1846, to recover tbe rents of tbe property sufficient to satisfy bis claim for repairs from Watkins and Trapnall, who were in tbe' possession of tbe property. Tbe Court decreed that tbe rents, sufficient to satisfy Wassell’s claim for repairs, were a charge upon tbe property in tbe bands of Watkins and Trapnall, and that tbe complainant recover from Geo. C. Watkins-$2,015 21, tbe amount then due for repairs on tbe brick store-house on lot 6 and 12 feet on lot 5. And further decreed that tbe complainant recover from E. W. Tapnall $500 on tbe amount then due, according to contract, for repairs- on tbe brick ware-house, on lot 4 and tbe east part of lot 5.
In tbe investigation of this case, we have encountered many questions ■ exceedingly intricate and perplexing. We shall not attempt to decide all tbe questions which may be raised by tbe facts, but such only as we think are necessarily involved in tbe correct determination of tbe case.
In tbe beginning, the legal question presents itself, whether the mortgage to the Bank, executed bj B. C. Byrd and "Win. J. Byrd, the 22d November, 1843, after Wm. J. arrived to the age of 21 years, was an affirmance or disaffirmance of the deed of 1838.
The execution of the mortgage by Wm. J. Byrd alone, would, without doubt have been a disaffirmance of the deed of 1838.
, This would have been a complete assumption of ownership; a claim totally inconsistent and irreconcilable with the deed of 1838. But we think the mortgage in this case is no disaffirmance of the deed of 1838. The mortgage is joint — executed by B. C. and Wm. J. Byrd, and not Wm. J. alone. They jointly assumed the ownership of the lots mortgaged. They jointly entered into covenants of warranty and seizure. The instrument itself shows a joint responsibility. It is sufficient that if all the property mortgaged be vested in Wm. J. and B. 0. Byrd to save them harmless from their covenants. It is not contended that B. C. Byrd had any title or claim to any of the property mortgaged, excepting that embraced in the deed of 1838. If he intended to disaffirm, why did he not execute the mortgage alone? Why did B. C. Byrd also execute the mortgage, and what is the legal effect as to him? Did he thereby assume the complete ownership of dll the property? The instrument should be so construed, if possible, as to give it effect in all its parts, and as to all parties concerned, and carry out the true intentions of the parties. The legal effect of this mortgage does not imply an assumption of ownership of all the property by Wm. J. Byrd. This construction of the instrument accords with the assumption of ownership by B. 0. Byrd of the property, in contracting with complainant for repairs, a few days after, which was assented to, and endorsed by Wm. J. Byrd, thereby admitting the ownership of his father; also with his subsequent deed of confirmation in 1844.
We are next led to inquire, what lien Wassell secured by his contract. It may be true that the possession of land, by virtue ©f a contract entitling to the immediate possession and rents,. would, give a good lien, without being registered, against after acquired judgment liens and subsequent purchasers. Upon this, we are not now required to decide. It appears, from the record, "Wassell never had the possession of this property. It is not even contended that he had a right to the possession and accruing rents by the terms of the contract, until he had abandoned it, on the 15th July, 1845, nearly two years after he entered into the contract with the Byrds. We think the contract between Wassell, the Byrds, and the Bank, clearly a mortgage upon the rents, to secure the debt for repairing the buildings, and comes within the registry act, and must be recorded to give a lien against a judgment creditor, who has acquired a specific TAm by execution and levy, without notice of the mortgage. Dig. of Ark., p. 745, S. 2, Atwater vs. Mower, 10 Verm. R. 75.
Wassell’s contract with Wm. J. Byrd and the Bank, was executed on the 30th Dec., 1843. Trapnall & Cocke obtained their judgments against Wm. J.Byrd the 20th May, 1842. Execution issued, and was levied on the property on the 25th February, 1845, and it was sold on the 25th April, 1845, and Trapnall became the purchaser. Tire judgment liens being prior to Wassell’s contract, and the judgments, executions, levy and sale being all withinthe three years, Trapnall, without doubt, obtained a good title to the property, unaffected by Wassell’s claim. But the facts embraced in this branch of the case, present other questions more difficult and perplexing.
On 23d of April, 1845, the United States obtained judgment against the Bank. On 20th June, 1845, Trapnall and wife conveyed this property to the bank. On 1st November, 1845, fi. fa. issued and was levied on the same property, and it was sold 20th April, 1846, and Trapnall again became the purchaser. Did Trapnall’s purchase and title under the prior judgment liens of Trapnall & Oocke, extinguish Wassell’s lien on the property? Did the conveyance of this property to the Bank, by Trapnall and wife, revive the lien against the property, the Bank having notice and being a party to the contracted lien % Or what effect did they have, if any ?
Again, it appears tbe United States bad no notice of Wassell’s unregistered mortgage or contract. Did tbe United States, by ber judgment, j/i./b., levy and sale of tbis property, acquire precedence over "Wassell’s unregistered lien? If so, did Trapnall, tbe purchaser at tbe marshal’s sale, stand in tbe place of tbe United States, and get a good title, tbougb be had notice of Was-sell’s contract ? "We do not now propose to decide all these questions, but such only as appear to be material and necessary to tbis case.
Tbe doctrine seems to be well settled in New York and South Carolina, that tbe judgment lien is subject to every equity which existed against tbe land in tbe bands of tbe judgment debtor, at tbe time of tbe docketing of tbe judgment, tbougb tbe judgment creditor had no notice at that time. That a court of chancery will protect tbe equitable rights of third persons against tbe legal lien, and will limit that lien to tbe actual interest which tbe judgment debtor has in tbe estate, and tbis is placed on tbe ground “that a judgment is not a specific lien on tbe land of tbe debtor, but a general lien on all tbe lands of tbe debtor.” 1 Paige R. 128, m the matter'of Howe; 4 Paige R. 15, Keirsted vs. Avery.
Tbis case does not come within tbe principle here laid down. Tbe levy of \h.&fi. fa. gave tbe United States a specific lien on tbe property. Tbe title of tbe Bank was thereby divested, and tbe United States became tbe legal owner bona fide. (Cushing vs. Hurd, 4 Pick. R. 255.) Tbe lien of Wassell is therefore void as against tbe United States, because it was not recorded. If then Wassell’s lien is void as against tbe United States, tbe doctrine of notice will not apply to Trapnall, for notice of that which is no lien, amounts to nothing. It seems further, if tbe United States were entitled to precedence, she has a right to tbe full benefit of ber lien, without detriment from Wassell’s unregistered mortgage, and Trapnall, by Ms purchase, is entitled to tbe benefits of tbe judgment lien.
But a different rule prevails in Pennsylvania and OMo, and some of tbe other States. There, tbe judgment creditors are placed on the same ground witli lonco fide purcbasers, and tbe rule is, tbat every incumbrance, whether it be a registered deed or mortgage, or docketed judgment, should, in cases free from fraud, be satisfied according to priority of lien upon the record, which is open for public inspection.”
4 Kents Com., p. 173; Cleveland Bank vs. Sterges, 2 McLean's R. 341; Cushing vs. Hard, 4 Pick. R. 255; Warden vs. Adams, 15 Mass. R. 226; Sigourney vs. Larned, 10 Pick. R. 73; Kanfelt vs. Bower, 7 Sergt. & Rawl. R. 64; Adams appeal, 1 Pa. R. 448; Bowers vs. Oyster, 3 Pa. R. 240; Coffin vs. Ray, 1 Met. R. 212; Johnson vs. Cawthorn, 1 Dev. & Battle R. 32, 35, also 379; Roberts vs. Rose, 2 Humph. R. 145, 147; Gunn vs. Chester, 5 Yerger R. 205, 209. This seems to be the doctrine established by our Legislature in relation to the same subject. The Dig. of Arks., p. 623, 8. 5, regulating judgment liens, declares that liens shall commence on the day of the rendition “ of the judgment and shall continue for three years.” And the act concerning the registry of mortgages, Dig. Arks. 745, S. 2, provides that “ every mortgage, whether for real or personal property, shall be a lien on the mortgaged property fi-om the time the same is filed in the recorder’s office for record, and not before ; which filing shall be notice to all persons of the existence of such mortgage.” Here, we find the lien commences on the day of the rendition of the judgment, and the mortgage is a lien from the time it is filed in the recorder’s office for record and not before. Priority must then be determined, from the time they were placed on the record. It is clear to our mind that, in the absence of fra/ud, the party first obtaining a record lien, in accordance with the statutes, obtains priority over unregistered mortgages, and entitled to prior satisfaction, according to the plain meaning of these provisions. Such is declared to be the law in Mississippi, under a similar statute to ours. Benjamin vs. Hyatt, 1 Smedes & Marsh. Ch. R. 437.
And. they fully sustain the position above laid down, that liens on land, whether by judgment or mortgage, in the absence of fraud, are to be discharged according to the order of time in which they respectively attached. And this is further evident from our statutes regulating conveyancing of real estate, (Dig. of Ark., p. 269, S. 31,) which provides that “no deed, bond, or instrument of writing for the conveyance of any real estate, or by which the title thereto may be affected in law or equity hereafter made or executed, shall 1be good and valid against a subsequent purchaser of such real estate for a valuable consideration without .■actual notice thereof; or against any creditor of the person, executing such deed, bond or instrument, obtaining a judgment or ■decree, (which by law may be alien upon such real estate,) unless .such deed, bond, or instrument, duly executed and acknowledged, ■or proved, as is or may be required by law, shall be filed for .record in the office of the clerk, and ex-officio recorder of the county, where such real estate may be situated.” Here, it is ■evident that creditors obtaining a judgment or decree, which by law is a lien upon the real estate, is placed on the same advantage .ground with “ subsequent purchasers for a valuable consideration ■without actual notice.” Then, it being established that the judgment lien of the United States is entitled to priority over Was-.sell’s lien, it clearly follows that Trapnall,' the purchaser at .sheriff’s sale, under this judgment, cannot be affected by notice of ■ the mortgage, “ For, ff he could, it would render the judgment .unavailable.” “It would give the mortgage priority over the judgment, and take away the value of the judgment to the .amount of the mortgage.” (Jacques vs. Weeks, 7 Watts R. 261.) And in Bayley vs. Grienleaf, 7 Wheaton R. 46, Chief Justice MARSHALL says, “ to the world, the vendor appears to hold the ■.estate, divested of any trust whatever, and credit is given to him ■in the confidence the property is his own in equity as well as law. A vendor, relying upon this lien, ought to reduce it to a mortgage, so as to give notice of it to the world. If he does not, he is in some degree accessory to the fraud committed on the public, by an act which exhibits the vendee as the complete .owner of an estate, on which he claims a secret lien. It would seem, inconsistent with the principles of equity, and with the general spirit oí our laws, that such a lien should be set up in a a court of chancery to the exclusion of bona fide creditors. The lien of the vendor, if in the nature of a trust, is a secret trust, and although to be preferred to any other subsequent equal equity, unconnected with a legal advantage, or equitable advantage, which gives a superior claim to the legal estate, will be postponed to a subsequent equal equity, connected with such advantage. In the United States, the claims of creditors stand on high ground. There is not perhaps a State in the Union, the laws of which do not make all conveyances, not recorded, and all secret trusts, void as to creditors, as well as subsequent purchasers, without notice.”
"We might well place this branch of the case on another ground. Admitting that Trapnall once knew of Wassell’s mortgage on tb.es rents of this property, he had no right to presume ■ it remained unsatisfied. The circumstances of ¥m. J. Byrd, the two subsisting unsatisfied judgment liens of Trapnall & Oocke, against him at the time of the contract, were sufficient, we think, to prompt Wassell to diligence in securing his lien, by having it registered. More than a year after the contract, Trapnall & Cocke sells the property, under their judgment liens, and more' than two years after, the United States sells it again, as the property of the Bank. In the meantime, Wassell sets up no claim,, interposes no objections to the sales, has taken no steps to have his mortgage lien recorded, as required by the statutes, nor assigned any reason for not doing so. We think, therefore, that Trapnall might well presume, from these circumstances, and from the length of time the mortgage remained unrecorded, and still being unrecorded, that it had been satisfied, or ccmeetted, and other security taken, or that he had wawedhis, lien, (Farnsworth vs. Childs, 4 Mass. R. 640.) If Wassell, in consequence, has to suffer, it is owing to’ his own negUgmee. Tie can blame no one but himself.
As to the other branch of this case, it depends somewhat upon different principles. On tbe judgments of Jones, "Woodward & Co., and E. Pitman & Co., sci. fas. to continue tbe liens issued witbin tbe three years, but tbe judgments of revival were not rendered until after tbe expiration of tbe three years. In tbe meantime, between .the issuing of tbe sci. fas. and tbe revivals of tbe judgments, Byrd mortgaged tbe property to tbe Bank, and made this contract with Wassell for repairs, giving a lien upon tbe rents of tbe property. Hie question is, was there a lapse in tbe lien, so as to admit of tbe intervening equities of Wassell and tbe Bank. The principle involved in this question, we think, is well settled in Trapnall vs. Richardson, Waterman & Co., 13 Ark. R. Where sci. fa. is issued before tbe expiration of tbe three years, and tbe judgment of revival is not entered until after, tbe judgment relates back to tbe date of tbe sci. fa. and tbe lien is continued unbroken. After tbe revival, tbe judgment creditor can sell and have tbe full benefit of bis lien, without lapse. Tbe case of Whiting & Slark vs. Beebe, is not inconsistent with tbe doctrine here laid down. In that case, tbe judgment creditor sold tbe property pending tbe sci. fa. before tbe judgment of revival was entered. His lien was incomplete without judgment of revival, and in that case tbe purchaser could not avail himself of its benefits.
Tbe cases cited of dorma/nt executions against personal property, do not, we think, apply. By our statutes, tbe liens in this ease are attached to tbe judgments. They commenced with tbe judgments, and by sci. fas., and judgments of revival are made to continue three years more from tbe dates of tbe sci. fas. “In those cases cited, tbe lien is not created by tbe judgment, or any matter of record.” “ A statutory lien is as binding as a mortgage, and has tbe same capacity to bold tbe land, so long as tbe statute preserves it in force.” Rankin & Schatzell vs. Scott, 12 Wheaton R. 177; 6 Condensed R. S. C. U. S. 506.
There is no such delay, under tbe circumstances, in tbe case of Jones, Woodward & Co., as will postpone them, either in law or equity, and in view of all tbe circumstances in this case, we do
not attach much importance to tbe endorsements oñ tbe two executions of E. Pitman & Co., directing tbe sheriff to return tbe executions unsatisfied. These executions, with these endorsements, were returned, filed and made a matter of record, 10th May, 1843. And on tbe 19th October, 1843, sci.fas. to continue tbe liens, were sued out on both these judgments. There is no evidence that any agreement for delay existed at the time Was-sell took the mortgage upon the rents of this property. "We, therefore, think the complainant could not have been misled or defrauded, or in anyway injured, by these endorsements or agreements. It is a general rule that “ equity follows the law,” and the special circumstances in this case are not such as to make this an exception. We think "Wassell is entitled to the rents of so much of the brick ware-house as is or may be situated on the 13 feet lying between the east half and the 12 feet on the west part of lot 5, which still remains unsold. But, as the case now stands, there is no evidence on the record showing what part of said buildings, if any, are on the 13 feet, nor what amount of rents has been received thereon.
And if "Watkins, after he purchased the property and obtained title thereto, stood by and silently permitted the complainant to bestow his labor upon the buildings, in ignorance of his superior title to the property, or upon the faith that "Watkins would pay him for his labor, in that case "Wassell is entitled to recover for all the labor he did upon the buildings after that period until he abandoned the works, or "Watkins notified him of his superior title, and that he would not pay him. But, as the record now exists, there is no satisfactory evidence before us on these points? neither as to the amount of labor done on the buildings after this period, nor as to the valué of such labor.
Mr. Justice WalKee
delivered the opinion of the Court.
The grounds for equitable relief against the defendants, are in many respects essentially different, and for that reason will be considered separately.
Anri first, as'regards tbe complaint against tbe defendant "Watkins. It is predicated upon a contract made between tbe complainant of tbe one part, Byrd and tbe State Bank of tbe other, by which they granted to the complainant tbe rents and profits of certain buildings, for repairs to be made by Wassell (tbe complainant) on said buildings. Tbe precise terms of this agreement, as between these parties, it is not important to examine, because tbe defendant, Watkins, claims tbe property by purchase, under a judgment lien, prior in point of time to tbe contract with Byrd and tbe Bank, to whom tbe property bad been mortgaged, which is apparent upon tbe record, and admitted by tbe complainant, who contends that by tbe acts and conduct of tbe judgment creditor, bis judgment lien bad been, before tbe sale of tbe property, displaced. After a careful examination of tbe record, and tbe evidence, we are led to a different conclusion. Tbe statute continues tbe lien of tbe judgment creditor for three years, unless displaced by some act of tbe party. Mere delay to sue out process within tbe time, would not of itself be sufficient for that purpose; noi* would tbe levying of process, and an-order by tbe ' creditor, or bis attorney, to return tbe process, without selling the property, or to return process before it bad been levied, necessarily discharge tbe judgment lien. Such acts do not amount to an-abandonment of tbe lien, a release of property taken in execution, or a new or additional security. It is very true that in this case there was an apparent unnecessary delay in tbe sale of tbe property, and some vacillation in ordering process to issue, and thereafter to be returned. But upon looking to tbe peculiar circumstances of this case, it is evident that no sale of tbe property could have been made at an earlier day than that on which tbe sale took place, without hazarding tbe loss of tbe debt; because, as tbe defendant held tbe property by deed from a minor, until such minor became of age and affirmed tbe title so made, no one would have been safe in buying tbe property; and that this was tbe true cause of tbe delay, may be fairly inferred from tbe fact that the affirmance was procured to be made by tbe plaintiff’s attorney, and tbe sale of tbe property thereafter made with tbe least possible delay. It is also true that Wassell was, during tbe time of this delay, bestowing bis labor upon tbe property, and thereby enhancing its value, and be may have been induced to prosecute bis labors, under tbe impression that be could realize, out of tbe rents, a sum sufficient to pay for tbe repairs, before the property was disposed of. But there is no evidence that Watkins held out any inducements or assurance, to Wassoll, that be would pay for tlie work, or that bis (Wassell’s) was tbe better claim, and although be knew Wassell was at work on tbe building, and bad information with regard to tbe nature of tbe contract under which it was done, to put liim upon inquiry, yet it must be remembered that Watkins, although the attorney for tbe plaintiffs, was not then tbe owner of tbe property, nor bad be any control of it whatever, and was not, therefore, compelled to give notice to Wassell that be would not pay for improvements. In view of all tbe facts of tbe case, there can be no doubt of tbe superior title of Watkins to tbe property, free from all incumbrance, up to tbe time of purchase. But, after tbe purchase of Watkins, tbe property being bis, a silent acquiescence, on bis part, in tbe continuance of tbe work, by Wassell, upon tbe building, raised an implied assumpsit onhispartto pay for the work so done. If be did not intend to pay Wassell for tbe work done on tbe building after bis purchase, it was his duty at once to have apprized him of tbe facts; having failed to do so for a considerable length of time, tbe work done between tbe date of tbe purchase and tbe time when Wassell was notified, that Watkins would not be held responsible for tbe payment of tbe work, should be accounted for by Watkins.
Trapnall, like Watkins, in tbe first instance, purchased under a judgment lien, prior in time to Wassell’s contract with Win. J. Byrd and tbe bank, for repairs to tbe property, purchased by him, but, as be subsequently parted with bis title to tbe Bank, he must rely for title solely upon bis subsequent purchase, made under a judgment in favor.of tbe United States against tbe Bank, which was rendered subsequent to 'Wassell’s contract, and consequently the lien created thereby laid hold of the lots as the property of the Bank, subject to all prior incumbrances.
It is a matter of some difficulty to determine satisfactorily tjie nature of this incumbrance. ¥m. J. Byrd, prior to his contract with Wassell, conveyed the lots to the Bank, to secure the payment of certain debts. TJpon the lots was situated a ware-house, that had partly fallen down, and was in a ruinous condition, and no doubt, with a view to having them repaired, made a reservation, that part of the rents and profits of the ware-house might be applied to- the payment for repairs. This reservation, in view of the insolvent circumstances of Byrd, and the nature of the deed executed to- the Bank, seems to have been a means of payment, for repairs, provided by the parties for their mutual benefit; because,- by the terms of the deed of mortgage, there was not only a lien created upon the realty, but by express terms, a grant of the rents and profits, arising therefrom, to be applied to the payment of Byrd’s debt to the Bank. The Bank was, therefore, interested in having the repairs made; that the property might be put in a condition to rent, and Byrd, for the same reason, and that it might be preserved from utter loss and ruin.
The contract for repairs was made by and between Wm. J. Byrd and Wassell, and on the same day approved, adopted and affirmed by the Bank, whereby it became the contract of both Byrd and the Bank; by the terms pf which, it was agreed that five hundred dollars of the rents and profits arising from the use arid occupation of the buildings, should be applied to the purpose of securing-fmWassell his pay for repairs to the buildings.
In view of all the circumstances connected with this transaction, it is evident that Wassell, to the extent ©f five hunched dollars, contracted for these rents, as the consideration for the repairs. Byrd was not to pay this sum in any event, -because the amount to be paid by him was expressly agreed upon; to that extent, the contract was made on the personal responsibility of Byrd, but it was the- interest in the property granted, which was set apart by Byrd and tbe Bank, and contracted to Wassell, and accepted by bim as a payment for tbe work to be done. It ivas not, there* fore, a mere security for tbe payment of Byrd’s contracts^ but upon tbe adoption of tbe contract, by tbe Bank, it was, in effect, a transfer to Wassell of tbe rents and profits in payment for bis services, and wben it is considered that Byrd bad, in express terms limited bis personal liability, and apart from such liability, bad contracted tbe rents which bad, by tbe terms of tbe deed of mortgage, been reserved for tbe express purpose of paying for tbe repairs, which contract was affirmed by tbe Bank, it is equally clear that tbe Bank was only fulfilling her agreement with Byrd by joining bim in making tbe transfer, and was not liable as a corporation in any event upon tbe contract. It was then a grant of rents, an incorporeal hereditament, which, as incident to tbe purchase, be might demand and receive, and, for tbe purpose of enabling himself to do so, if necessary, might enter upon tbe realty, because tbe grant of tbe rents carried with it every incidental right necessary to enable tbe purchaser to get tbe benefit of bis purchase.
We have seen that, by tbe express terms of tbe deed of mortgage, tbe rents were conveyed to tbe Bank, with tbe reservation that part thereof should be applied to paying for repairs, or, if not, as Byrd and the Bank both executed tbe contract with Was-sell, be certainly acquired tbe title to tbe rents, whether in either or both of them. If, however, tbe title or interest in tbe Bank was imperfect, for tbe reason that there was an equity of redemption as to tbe realty, and, therefore, that she did not communicate- or pass to Wassell a perfect title to tbe rents by reason thereof; still, her subsequent purchase of tbe property from Trapnall was, in effect, an affirmance of a perfect title in Wassell, under bis purchase of tbe Bank, as fully and to tbe same extent that it came to her from Trapnall, for it is a familiar and well established rule in this State, that if one sells real estate to which be has no title, or an imperfect title, at tbe time of tbe sale, and subsequently acquires such perfect title, that such title enures to tbe benefit of bis vendee as fully as if tbe after acquired title bad existed in tbe vendor at tbe time of bis conveyance in tbe first instance.
At tbe time tbe United States obtained judgment against tbe Bank, slie evidently bad no estate or interest in tbe realty or in tbe rents and profits arising therefrom; because, before that time, the property bad been sold to Trapnall, under process, to satisfy a judgment against Byrd, who held the equity of redemption, and as tbe judgment lien was older than tbe deed of mortgage, tbe whole legal estate vested in tbe purchaser. But upon tbe' transfer made subsequently to the Bank, tbe judgment lien did attach, and held tbe estate as perfectly and to tbe same extent, that it remained in the Bank after her purchase.
"We have seen that tbe rents and profits bad been, by the Bank, conveyed to IVassell, and that her purchase of Trapnall, to tbe extent of her former transfer to "Wassell, passed immediately to him. So that tbe title, which tbe Bank really acquired by her purchase of Trapnall, was, at tbe time tbe lien took effect, encumbered with this prior conveyance.
Tbe office of a lien is not to create an estate, nor in tbe slightest degree to affect or interfere with prior incumbrances, but to prevent subsequent alienations or incumbrances. So, it was said, in Kersland vs. Avery, 4 Pedge 14, “Tbe lien of tbe judgment is subject to every equity that existed against tbe land in the bands of tbe debtor, at tbe time of docketing tbe judgment, and tbe court of chancery will protect tbe equitable rights of third persons against tbe legal lien, and will limit that lien to tbe actual interest which tbe judgment debtor has in tbe estate.” In Mooney vs. Dorsey, 7 Sm. &. Mar. R., 22, tbe court of appeals of Mississippi say, “Tbe lien of tbe judgment can only operate upon tbe interest which tbe debtor bad at tbe iime of its rendition.” In Adams’ Doctrine of Equity, page 311, it is said, “The judgment creditor is entitled to tbe debtor’s real interest, alone subject to bis equities as they existed at tbe date of tbe judgments.” And Chancellor Kent, 4 Kent’s Oom. 437, says, “ After all, the lien amounts to but a security against subsequent purchasers and incumbrancers.” In White & Tudor’s -Equity Oases, vol. 2, ¶. 107, numerous adjudged cases are cited to tbe effect “that a judgment lien is not to be regarded in the light of a purchase, or as entitling the creditor to the preference over prior equities, and unrecorded deeds.” We think these authorities will sustain the position assumed, that the interests of the creditor in the real estate of the debtor, is limited to the actual interest of the debtor at the time the lien attaches, and he holds it free from subsequent alienations or incumbrances, but subject to prior alienations or incumbrances.
Turning to the facts of the case, there can be no doubt but that Trapnall was, even prior to his first purchase, under the Trapnall & Cocke judgment, informed of the nature of Wassell’s interest in this property, and the terms of his contract with Byrd and the Bank; he admits, in his answer, that he had notice sufficient to put him upon inquiry, and he well knew at the time of his purchase, under the United States judgment, that Wassell had nearly or quite completed the work on the ware-house. Trapnall was the owner of the property whilst the work was progressing from the time of his prior purchase until his sale to the Bank,'and must have been well acquainted with all that related to Wassell’s claim; for, during the time, Wassell was engaged in making the repairs, he had been judgment creditor, attorney, purchaser, vendor and purchaser again; he resided in the same city, where the property was situated, and the work was done. From all these considerations, as well as from the evidence, and his own admissions, he well knew all the facts of the case, and being an eminent attorney, he also knew the nature of the in-cumbrance on the property when he bought it. There can be no hardship then in holding his purchase subject to Wassell’s prior equity; because we must presume that, with a knowledge of the facts and of the law, he bought the property with an eye to Wassell’s claim, and bid for it, less than he would otherwise have done, by the amount due Wassell, so that in fact he loses nothing by paying this sum. Or, if otherwise, knowing tbe facts, •he bought at his peril, and must be held to account.
The report of the master, sustained by the evidence, shows that, clear of all expenses for repairs since he took possession of the property, he has received exceeding $500, the sum due Was-•sel, which sum was, by the Circuit Court, decreed to the complainant ; and, under all the circumstances of the case, we think •the claim of the complainant of a highly equitable character, well sustained by the evidence, and, so far as regards the. claim against Trapnall, the decree ought to be affirmed.
But, so far as the decree goes to charge Watkins with the value of the repairs made upon the buildings, purchased by him, prior to his purchase, we think the Circuit Court erred, and, for this error the decree, as to him, must be set aside; and, as Watkins is properly chargeable with the value of the work done upon the buildings, after he purchased the same, and before Wassell was notified by him that he would not be responsible for repairs, and inasmuch as we cannot readily ascertain from the evidence what amount of work was done, after such purchase and before such notice, the case must be remanded, with instructions to the Circuit Court, by reference to the Master or otherwise, according to the practice in said Court, to ascertain the amount of work go done, and the actual value thereof, and to render a decree in favor of the complainant for the same.
.Hon. Chief Justice Watkejs not sitting,