“ Even supposing the trustees to have acquired a legal estate, the cestuis que trust have acquired an equitable interest only. The claim of the vendor for unpaid purchase-money is the prior equity, which must be preferred. If the subsequent purchaser acquires a mere equitable interest, he is entitled to no notice of the vendor's lien. The assignee of a chose in action, which is not assignable at law, has a mere equitable interest, and takes subject to the same equity as the assignor. ”

“ The 12th directs that a transferrible certificate shall be given to each proprietor, prescribes its form, directs it to be recorded, and declares that it shall be complete evidence to such person, of his right in the purchase. No assignee is admitted as a member, to vote in the affairs of the company, until his assignment shall be recorded. The 13th declares, that no certificate shall issue for less than one share, and that the holder of any certificate for a larger quantity, may, at any time, surrender it to the trustees, and take out others for such quantities as he may choose. ”

“ Admitting, however, that the law of Georgia is to give the rule, it remains to be shown, on the other side, that this peculiar doctrine of the English courts of equity is adopted in that state.
We insist, we are not concluded by the decision of the commissioners, under the acts of congress, because their power extended only to legal or equitable claims to the lands; such equitable elaims as enabled the holder to call for the legal title, and such as conflict with each other; which not being the case here, the commissioners had no jurisdiction to determine this question. ”

“ They watch the progress of the title, direct its course, leave no power to individuals over their individual shares, but keep the whole under the control of the company, until they are perfectly satisfied with the state in which they have placed it. The legal title is, by their order, vested in three trustees, who are to be controlled by seven directors. Then, in order to enable each proprietor to dispose of any portion of his interest which he may incline to sell, assignable certificates are issued, declaring that the holder is entitled to a specified share of the land. ”

“ The words 'terms, conditions, covenants and exceptions,' contained in the certificate, refer chiefly to provisions respecting the sale of lands, and to others which recognise the absolute control over the property, which each member had ceded to the whole body. It is unnecessary to recite the particular articles which tend to this general result; it is the spirit which pervades the whole association. Only those articles which relate to the certificate need be adverted to. The 11th article divides the whole purchase into 2276 shares. ”

“ Webster, for the appellants, in reply, insisted, that the title was no better in the plaintiff's hands, than it was in the hands of Mr. Wetmore. The purchaser of an equity must abide by the case of the person from whom he buys. He must take the estate, subject to all incumbrances. Want of notice, or payment of a valuable consideration, will not enable him to raise himself higher than his vendor. ”

“ If further circumstances are necessary, in the present case, to remove the presumption, that the vendor intended to rely upon the lien, they will be found to exist. Holding back the deed, or what is equivalent, depositing it as an escrow, until after the first payment, has always been considered as indicating the intention to rely upon the lien: and if so, the delivery of the deed, after the first payment was made, equally manifests an intention to relinquish the lien. ”

“ Sugden, after reviewing all the cases, expresses the opinion, that even an equitable mortgage, created by the vendee depositing deeds with a third party, bon a fide, and without notice, will give him a preferable equity, and will overreach the vendor's equitable lien for any part of the purchase-money. Sugd. on Vend. 366. Now, a mortgage is a mere security for a debt, and the same conclusion is much stronger in the case of an absolute purchaser. ”

“ If the plaintiff could recover in this case against the defendants, one of whom is the surviving trustee, that trustee must have his action against Wetmore on the covenants of his deed of trust. But it is not the course in equity, to treat covenants as distinct and independent, but to require of plaintiffs to allege and prove performance, or readiness to perform, on their part. ”

“ The design of the parties to sell the land, instead of cultivating the same, whereby to pay the notes, expressly excludes the idea of such a lien, as no man would have purchased, who knew that such a note was given for the first purchase, without seeing that his money was appropriated to extinguish the notes ”

“ A separate conveyance was made by Wetmore, Jarvis and Newman, to John Peck, who conveyed to Jarvis, Newman and Hull. But these conveyances are not supposed to vary the case. In this deed of trust, each proprietor covenants for his own title, not for that of his copartners. This has been supposed to give notice to the assignee of each certificate issued by the company, that the property conveyed did not constitute a common stock in the hands of the trustees, out of which each holder was to draw in proportion to his interest, as expressed in the face of his title paper ”

“ The great objects of the speculation would be materially impaired and embarrassed, by any latent incumbrance, the nature and extent of which it might not always be easy to escertain, and which might by a sub-division of the property, be apportioned upon an almost infinite number of purchasers. ”

“ It is obvious, that this purchase could not have been made with a view to hold all the lands. The object of the purchasers must have been to make a profit by reselling a great part of them. Accordingly, we find them making immediate arrangements to effect this object. In February 1796, before the legal title was obtained, the purchasers formed an association, by which it was, among other things, agreed, that the land should conveyed to three of their partners, Leonard Jarvis, Henry Newman and William Wetmore, for the use and benefit of the company. ”

“ It is unnecessary to say, whether the commissioners were well-founded in the decision they have pronounced. No fraud or negligence is, at any rate, imputable to the defendants. They have used due diligence, and sought to increase the fund, by obtaining from the commissioners the stock which would have belonged to the original purchase of Wetmore, if his title had been deemed valid. ”

“ Although the association was formed, before the lands were conveyed, no certificate was to issue, until the legal title in the company should be as complete as it could be made. It was obviously necessary for the purchasers, before they proceeded to sell, to examine well their title, and to use every precaution which prudence could suggest, for its security. This appears to have been done. On the 13th of February 1796, a deed was executed by the Georgia Company, purporting to convey the lands to William Wetmore, Leonard Jarvis and Henry Newman ”

“ Decrees affect only those who are parties to the suit; and an opinion incidentally given by the commissioners, ought not to control the plaintiff's right.
The Attorney-General, on the same side, contended, that no such lien, as that insisted upon, existed even as to Mr. Wetmore's title; much less was Mrs. Gilman's affected by it. The question whether the legal title passed from the Georgia Company to the New England Company, cannot be raised in the appellate court ”

“ After the purchase, and before the delivery of the deed, the purchasers formed themselves into an association by the name of the New England Mississippi Land Company, and executed sundry articles of agreement, and among other things, therein agreed, that the deed of the purchase should be made to Jarvis, Newman and Wetmore, as grantees as above stated; (art. 2d) that they should execute deeds to the several original purchasers for their proportions in the lands, but should retain these deeds, until the purchasers should sign and execute the articles of association ”

“ In this case, there is a natural equity that the land should stand charged with so much of the purchase-money as was not paid; and that without any special agreement for that purpose.' But Lord APSLEY says, 'Chapman v. Tanner (1 Vern. 267) , according to the report, is in point; but it appears, by the register's book, that the vendor retained the title deeds till he was paid; the court said, that a natural equity arose, from his having the title deeds in his custody.' Fawell v. ”

“ But the same authorities lay down the rule, that if notice is neither alleged by the bill, nor proved, and the defendant by his answer denies notice, the court will not grant an inquiry to affect him with notice. Sugd. on Vend. 512. This rule has more analogy to the present case; for the answer does not charge the plaintiff with notice; and it is denied in the bill. We insist, that where the legal estate has passed from the vendor, a bon a fide purchaser, without notice, even though he has no deed, will overreach the implied lien for unpaid purchase-money. Mr. ”