William J. Woods, Appellant, vs. William Bailey, Administrator de bonis non of John Bellamy, Deceased, Appellee, 3 Fla. 41

LANCASTER, J. On the 15th day of November, 1844, John Bellamy, the intestate of complainant, filed his bill of complaint in the then Superior Court for Jefferson County, alleging the indebtedness to him of the defendant, Ransom J. Roberts, for large sums of money, on four several notes, as in his said bill is mentioned, amounting together to about $9,717 54. One of which said notes, he describes thus : “ On a note dated Aucilla, 26th March, 1840, for <f4,000, payable on the 1st of January, 1845, with interest at ten per cent, per annum from 1st of January, 1841, to the order of said Roberts, made by one W. H.

Williams, as expressed in said note, for value received in land,” and endorsed on the 26th day of March, 1840, by said Roberts to said Bellamy, for value received, as expressed in said endorsement, and the payment of which Roberts guarantied to said Bellamy, and was responsible for and assigned said note as a security for cotton sold by Bellamy to him, said Roberts, and for which amount he was bound to Bellamy. The bill alleges that the defendant, Ransom J.

Roberts, made a fraudulent disposition of his property on the 14th day of September, 1840, by making a fraudulent bill of sale of seventeen negroes in the bill named, to his brother, Elijah Roberts, who, on the same day, gave to David Emanuel, a brother-in-law of said Ransom, a power of attorney to take charge of said negroes, and defend them against any other claimant; and that a few days thereafter, the said Ransom J. Roberts and the said Emanuel absconded secretly from Jefferson County, and from the Territory of Florida, taking with them all said negroes and other property mentioned in the bill.

And the bill charges that all these fraudulent actings and doings were done with the fraudulent intent and purpose of defrauding the said Bellamy. The bill further charges that the complainant gave chase after the said Roberts and the said Emanuel, and- overtook them-in the State' of Alabama, where he caused said slaves and other property to be levied upon, arrested, attached and- seized by the proper officer, as the property of said Ransom J.

Roberts, and as liable for and bound for said debts ; that a claim was interposed by said Emanuel,- for and on behalf of Elijah Roberts, which was tried and found by a jury in favor of said Bellamy; that, thereafter, on the 2d day of October, 1842, an agreement of compromise was entered into by said Bellamy, and the said Ransom J.

Roberts and Elijah Roberts, (the latter acting by his agent and attorney in fact,), by which the said Roberts acquiesced in the claim, as established in favor of said Bellamy, and also agreed that judgment should be rendered in favor of said Bellamy, in the suit he had instituted against Ransom J. Roberts, without defence, for the amount of the four several notes sued on, with legal taxed costs, together with other matters therein stated as agreed to, and which may be referred to hereafter.

The bill then says, the foregoing agreement was on the same 22d of October, 1842, “ annulled and abrogated, and a conveyance of said slaves and other property was made, executed and delivered by said Ransom and said Elijah, (by his agent and attorney aforesaid,) in the words and figures following, viz :- “ The State of Alabama, County of Covington,} Ss. “ This indenture made this twenty-second day of October, in the year of our Lord one thousand eight hundred and forty-two, between Ran-som J.

Roberts and Elijah Roberts, (said Elijah by David Emanuel,his agent and attorney in fact,), of the first part, and John Bellamy, of Jefferson County, Territory of Florida, of the second part, witnesseth : that the said Ransom-and Elijah, for and in consideration of the sum of ten thousand dollars to them in hand paid by the said John, at and before the ensealing and delivery hereof, and the receipt whereof is hereby acknowledged, and the said Ransom- and Elijah therewith-fully satisfied, content and paid, and also for and in consideration of divers other matters and things relating to the past transactions and-business of and between said parties, have granted, bargained, sold, assigned, aliened, transferred, released, conveyed and confirmed, and by these presents do grant, bargain, sell, assign, alien, transfer, release, convey and confirm unto the said John, all the following described slaves and property, now in said County of Covington, State of Alabama, namely, seventeen slaves: Watkins, aged about 28 years ; Amos, aged about 20 years; Doctor, aged about 17 years; Celia, aged about 30 years, (sometimes called Seany;) Rose, aged about 25 years ; Eliza, aged about 14 years; Toby, aged about 12 years ; Tony, aged about 8 years ; Phccbe, aged about 6 years ; Nancy, aged about 4 years; Crecy, aged about 2 years; Winny, aged about 1 year ; Lucinda, aged about 8 years ; Little Cely, aged about 4 years; Stephen or Stepney, aged 2 years ; Betty or Elizabeth, aged about 1 year, and Mary, aged about 1 month, and the future increase of the female slaves ; also, one road wagon and four mules — all of which slaves and property, the said Ransom and Elijah have herewith on this day delivered to said John and into his possession, at the County of Covington aforesaid — To have and to hold the said above described slaves and property and the future increase of the said female slaves, to him, the said John, his heirs and assigns forever, in full, perfect, complete, and unincumbered title, estate and possession forever.

And the said Ransom and Elijah, jointly and severally for themselves, and for their and each and every of their heirs, executors and administrators, do covenant and agree to and with the said John, his heirs, executors, administrators and assigns, that they, the said Ransom and Elijah, and each of them, and their and each and every of their heirs, executors and administrators, the full, perfect, complete and unincumbered title, estate and possession and property, of, in and to the said slaves and property, and the future increase of the said female slaves, and each and every part, portion, and parcel thereof, and without let, molestation or hindrance from any person or persons whatsoever, and the peaceable and quiet enjoyment of the use and the said possession thereof, unto and by the said John, his heirs, executors, administrators or assigns forever, they and each and every of them will forever warrant and defend, and sustain the claim or claims of any and all persons whatsoever. “ In witness whereof, the said Ransom and Elijah have hereunto set their hands and seals, (said Elijah by said David Emanuel, his agent and attorney in fact,) on the day and year first above written, at Montezuma, in the County of Covington aforesaid. “ RANSOM J.

ROBERTS, [Seal.] “ ELIJAH ROBERTS, by “ DAVID EMANUEL, [Seal.] “ His Agent and Attorney in Fact. “ Signed, Sealed and delivered in the presence of us— “ James D. Westcott, Jr., “ James P. Steedly, “ Lemuel S.

Harrell.” “ The bill further states, that “ on the same day a final agreement of compromise in lieu of the above mentioned, was made between said Ransom and said Bellamy, which was signed and sealed by said Bellamy, and delivered by him to said Ransom, as follows, viz : “ State of Alabama, ) gg County of Covington,) “ This indenture made this twenty-second day of October, Anno Domini 1842, between John Bellamy of the County of Jelferson, in the Territory of Florida, of the first part, and Ransom J.

Roberts, late of the same place, of the second part, witnesseth : Whereas said John, executor of Abram Bellamy, deceased, hath heretofore instituted three several suits by attachment in Dale County Circuit Court in said State, against said Ransom, et al., as by reference thereto will appear ; and whereas said attachments were levied on seventeen slaves, and a road wagon and four mules, as the property of said Ransom, and claimed by Elijah Roberts, (by his agent and attorney in fact, David Emanuel,) and by consent, the claim was tried before the County Court of said County of Covington, and a verdict this day rendered, that the property was subject to said attachment, and a compromise and agreement made in said case, signed and sealed by said Ransom, and said Elijah, (by his agent,) and by said John, as by reference thereto, bearing even date herewith, and a copy whereof is in possession of the said parties to this indenture, will appear; and, whereas, in pursuance of said agreement, said Ransom and said Elijah have this day executed a conveyance of said slaves and other property to said John, which bears even date herewith, and is recorded in the Clerk’s office of said County of Covington, and who delivered said slaves and property to the said John; and whereas said Ransom hath also filed his written consent to judgment being entered in each-of the said suits, at the next term of the Covington County Circuit Court, said suits being by consent transferred from Dale Court to Covington, in case a Court is held at Covington next week, and iff not, the judgments to be entered at the next term of Dale Circuit Court, said judgments being entered with full release of errors, as by reference to the written consent filed in each of said cases will appear, which judgments all amount in the aggregate, besides costs, to about $9,717 54 : “ Now, in order to carry out and fulfil the residue of the conditions and terms of said compromise, with such modifications as the parties thereto have since agreed upon, the said John binds himself to said' Ransom J.

Roberts, to transport and convey said slaves and property forthwith back to Jefferson County, Florida, and to keep the same in-said County of Jefferson, according to the terms of said compromise,, until otherwise agreed ; and said John further binds himself to said Ransom to extend to said Ransom indulgence on said debts for five years from this date, he the said Ransom, paying the interest thereon? at eight per cent, per annum, and payable annually, on the 22d off October breach year, to said John, and said slaves and their increase in the meantime remaining in the possession of said John, and as his property, under and by virtue of said conveyance ; and said John-binds himself, on full payment and satisfaction of said judgment debt, interest and costs at any time within said five years, to sell, or assign, and reconvey to- said Ransom, or to such person as he may appoint in writing, such of said slaves and their increase as may be then living; and said John binds himself to hire out said negroes at just and reasonable prices in Jefferson County, or if he uses them himself, to allow just and reasonable prices or hire for them, and which hire is to be annually, as the same hire becomes due, to be faithfully applied and appropriated to the discharge and payment of the interest and principal and costs of said judgments; and said John further agrees to give said Ransom the privilege and preference of hiring and taking said negroes on equal, reasonable terms with others, iff said Ransom desires the same, the hire to be so appropriated and applied as aforesaid.

And in order to aid in enabling said Ransom to pay. said debts, said John further agrees that he will lease or sell to said Ransom, on fair and reasonable terms, sufficient lands in the County of Jefferson aforesaid, whereon to reside and work the said slaves during said term, if said Ransom so desires'; and said John further agrees that, on said Ransom giving a full, perfect and complete title to the six hundred acres of land in Jefferson County, sold by said Ransom to William H.

Williams, to release said Ransom from his liability as endorser of said Williams’ note, and upon the debt and interest of said judgment entered thereon — the incumbrance, of the Union Bank, and all others, to be however first discharged satisfied and taken off by said Ransom, and said conveyance by said Ransom for said lands to be either to said John, or to said Williams,, in pursuance of said agreement between said Ransom and said Williams, dated March 26 th, 1840, or otherwise, as said John may direct, so that said Williams may be compelled to pay said note, and said Ransom to make said conveyance, and discharge all incumbrances on said land, within ninety (90) days from the date hereof.

At the expiration of said term of five years from this date, if any portion of said debt and costs are still unpaid, or any of said interest shall not be paid, sufficient of said slaves to pay the same are to be sold by said John at public auction in Monticello, Jefferson County? on thirty days’ notice, and the proceeds taken to pay and satisfy the same ; and if, after payment of all said debts, interest and costs, any of said slaves remain unsold, they are forthwith to be reconveyed and redelivered by said John, as hereinbefore stated; and if after such sale, there should be a portion of said debts, interests and costs remaining unpaid, said Ransom shall be still liable for the deficiency.

The said John is to sell the said wagon and mules at fair prices, and credit the proceeds, after deducting reasonable expenses of transporting said slaves and property back to Jefferson County, Florida, on said judgments. “ In witness whereof, the said John Bellamy hath hereunto set his hand and affixed his seal, the day and year first above written, at Montezuma, Alabama. “ JOHN BELLAMY, [Seal.] “ Signed, sealed and delivered in -the presence of us— “ James D. Westcott, Jr., “ James P. Steedly, “ Lemuel S, Harrell.” The bill also charges that the note above mentioned, given by William H.

Williams to said Ransom, and by him assigned to said Bellamy, was given and made, as expressed on the face thereof, in consideration of certain lands in said County of Jefferson, containing six hundred acres ; that said Ransom did not make any conveyance to said Williams of said lands, but made and delivered a writ' ten agreement or contract to said Williams, in the following words, viz : “ I hereby agree to dispose of and deliver, on or before the 1st of December next to William H.

Williams, Esq., fifty head of cattle, more or less, at five dollars per head, and fifty hogs, more or less, at one dollar each, five hundred bushels of corn, and some fodder of the crop, at market value, the delivery of the latter to be optional with William Williams. I hereby further agree to make out a clear title to the lands, and to hold myself responsible for all claims against it. (Signed,) Ransom J. Roberts, and dated Aucilla River, 26th March, 1840.

Witnessed by John Walsh, and recorded the 19th of June, 1844.” The bill further alleges, that the time of ninety days mentioned in the agreement executed by said Bellamy to said Ransom J.

Roberts, in which the said Ransom was to execute a conveyance and discharge all incumbrances on the land, was agreed upon and specified as a material and essential condition of said agreement, and to be part of the essence of the contract, because it was believed said Williams would come to Tallahassee about the first of January, 1843, as a member of the Legislative Council, and remain in said Middle District that month, and afford thereby an opportunity to said Bellamy, if the same was done in ninety days, of applying to Williams respecting the business, and inducing him to accept such conveyance and take the lands, and if he refused, of instituting proceedings in equity against him in said District to compel him to do so, and enforce the payment of said note by him, or effect a compromise with him.

The bill further charges, that Bellamy requested said Ransom J. Roberts, after discharging all the incumbrances aforesaid, within the ninety days aforesaid, to make a title to said Williams and deliver it to said Bellamy or his counsel at Tallahassee, to tender it to Williams, and if he would accept it, to deliver the same to him, and thereby make him liable and bound for said note, but that the said Ransom entirely neglected and refused so to do within said time, or subsequently, and has not yet done the same according to his agreement.

The bill further charges, that said agreement of Oct. 22d 1842, and Ransom’s agreement with Williams of 26th March, 1840, were duly recorded, and all said premises were public and notorious in Jefferson County, and William J. Woods had due and legal notice thereof. Yet said Woods, on the 6th day of Nov., 1844, in consideration, as it is pretended by said Ransom and said Woods, of $2000 lawful money paid by said Woods to said Ransom for said land, took and received a conveyance of said 600 acres of land from said Roberts, and caused the same to be recorded in Jefferson County.

And the bill charges that the deed was taken by Woods with full knowledge of all the premises, and was made and executed for the purpose, and with the intent of defrauding said Bellamy and said Williams, and that the said deed is fraudulent, null and void, and should be set aside and declared null and void, and said Woods and said Ransom compelled to convey the same so as to fulfil the terms of the agreement between the said Ransom and Williams and Ransom and Bellamy.

The bill further charges, that Williams disputes and contests his liability on said note, especially since the conveyance to Woods, thereby destroying the ability of said Roberts to make him a title, and causing a failure of the consideration of said note ; and the bill contends that both Williams and Roberts are bound and liable to said Bellamy to pay the amount of said note, principal and interest, when due; and notwithstanding said fraudulent conveyance by said Roberts to said Woods, the said Bellamy has a lien, and charge and equitable mortgage upon said lands, prior and superior to, and above and before said fraudulent conveyance.

And the bill charges, that said land should be sold to satisfy said note and interest and costs and expenses, and if insufficient, that Williams and Roberts should both be held and bound to Bellamy for the deficiency. John Bellamy, the complainant, died, and William Bailey, Adm’r de bonis non of said Bellamy, deceased, filed his bill of revivor praying to be admitted as complainant, and was made a complainant as the legal representative of said John Bellamy, deceased. And none of the defendants having appeared or answered said bill except William J.

Woods, an order for publication was obtained against them, \and satisfactory proof being made to the Court, that a notice to appear and answer had been published against all the defendants except William J. Woods, according to the terms of the order for publication and agreeably to law, it was ordered, adjudged and decreed, that the original bill be taken as confessed against the said Ransom J. Roberts, Elijah Roberts, David Emanuel and Frances Williams, adm’rx of W. H. Williams, deceased, they having failed to appear and answer said original bill or to plead or demur thereto. The defendant William J.

Woods answered, and admitted his purchase of the land mentioned in complainant’s bill at the day, and for the sum named in the bill, and which was recorded as stated in the bill, but ¡he says he purchased in good faith, for the legal and valuable consideration of §2000, which he actually and in good faith paid to said Roberts, partly 'in money and partly in good negotiable promissory •notes, on good and solvent persons, which he considered equal to money — that at the time of the execution of said deed by said Roberts, before the filing of complainant’s bill of complaint, this defendant in good faith, and without any knowledge on his part, of any legal or equitable claim in favor of any other person or persons whatsoever in, to, or upon said land, paid as above stated for the same.

The defendant further states that he had heard from rumor only, that there had been an old contract in regard to the purchase of said lands by Wm. H. Williams, from said Roberts, but upon inquiry, he was informed and believed, and so charges, that at the time of his said purchase, it was null and void to all intents and purposes. That it was a notorious fact that Roberts had tendered Williams a deed, which Williams refused to accept, and Williams being insolvent, Roberts elected, to abandon the contract with Williams, and did abandon it.

And further answering, this defendant saith, he had also heard from rumor only, before he purchased from Roberts, of the contract -or agreement in complainant’s bill mentioned, between said Roberts and complainant in regard to said land, but at the same time he was informed and believed, and so charges, that said agreement was also rescinded, and at the time of the purchase of said land by this defendant, was null and void.

That said Roberts had done everything necessary on his part to be done, to complete said contract, and had at great costs and charges, sacrifice and trouble, paid off and discharged all the incumbrances and liens on said land, and tendered in the presence of witnesses, a good and sufficient legal title to said land to said complainant Bellamy, clear of all incumbrances and liens, in pursuance of the agreement between said Roberts and said Bellamy, and that said Bellamy refused to accept said title so tendered to him, and refused to have any thing further to do with said lands, and disclaimed' repeatedly, in the presence of divers good citizens of Jefferson County,, that he had any claim, title, interest, or lien, in, to, or upon said" land, and that he never intended to have anything more to do with' it, and said Roberts did then elect to abandon said contract with said Bellamy, as he had' a right to do under the circumstances.

This defendant denies positively that the deed of said land made by Roberts to him, was made and received for the purpose and with the intent, to defraud said Bellamy and said Williams, or any body else,but avers it was made in good faith, and for the valuable consideration aforesaid.

And he denies all the charges and imputations contained in said bill against him, of combination on the part of this-defendant, with said Roberts or any one else, for the purpose of defrauding, injuring, or vexing the said complainant or any one else-And afterwards a decree was entered by consent of complainant’s solicitor and the solicitor of said Woods, and it was ordered, among other things, that said defendant Woods have leave to file his amended answer.

And in pursuance of said consent decree, said defendant Woods filed his amended answer, by way of demurrer, in short,relying upon the statute which allows defendants to insist upon any matter of demurrer in their answer, and insisting among other things, that said bill should be dismissed, because the same wants equity apparent upon the face of it, and because the same does not set up-any claim, right, title or interest in equity, or any equitable lien to the land of this defendant bought of said Roberts.

And by way of plea under said statute this defendant insists that said Roberts offered to said Bellamy a deed of conveyance in fee simple, a copy of which is filed with his answer, and which deed conveyed a good and valid fee simple, unincumbered title to said' Bellamy, which he refused to accept before the purchase of said lands' by this defendant. There are many other matters contained in the original bill of complaint, not herein-set down or noticed, hut all is contained'in the foregoing statement, which is believed to have relation to the controversy between complainant and the defendant W. J.

Woods, who are the only parties litigant before this Court. it is in proof by two witnesses in this cause, that on the 1st day of June, 1843, they tendered and read to John Bellamy, the original complainant in this suit, a deed of conveyance from Ransom J. Roberts to said Bellamy for a certain tract of land, containing 600 acres —that the said Bellamy refused to accept said deed, saying he would take the land for its worth, and that the land was not worth the money mentioned in the deed, say $4000. It is also in proof that R. J.

Roberts filed with the clerk of Jefferson County Court on the 17th February, 1843, for record, a deed of release from the Union Bank to said Roberts, which deed bears date the same day it was received and filed. The cause came on afterwards to be heard, so far as the defendant William J.

Woods is concerned, upon the bill, answer and exhibits, and after argument of counsel and time for consideration taken by the Court, “ it was ordered and decreed that the said complainant has a lien and charge upon said land mentioned in said bill of complaint, and that the same is in equity prior and superior to, and above and before the conveyance by said Roberts to said Woods, to the extent of the balance due to said complainant from Ransom J.

Roberts, on the note given by said Williams to said Ransom, and by him transferred to complainant’s intestate, amounting, in the aggregate, with interest, to the present term, to $3,809 77-100. “And it is further ordered and decreed, that the said conveyance from said Ransom J. Roberts to said William J.

Woods for said land, dated the fifth day of November, 1844, mentioned in said bill, though valid between the parties, be, and the same is hereby set aside, as far as claim of complainant is concerned. “ And it is further ordered and decreed, that the land described in said deed, to wit: The southwest quarter of the northeast quarter, the northwest quarter of the southwest quarter, the southwest quarter of the northwest quarter, the southwest quarter of the southwest quarter, the northwest quarter of the northeast quarter, the east half of the northeast quarter, the east half of the northwest quarter, the east half of the southwest quarter, the west half of the southeast quarter, and the east half of the southeast quarter, all in

section two, of township two, range five, north and east, in the district of .land subject to sale at Tallahassee, containing about six hundred acres, more or less, be sold by the sheriff of Jefferson County, after giving public notice of the time and place of sale, said notice to be, as in cases of sales under execution at law, the proceeds of which sale to be applied to the amount so ascertained to be due as aforesaid. “ And it is further ordered and decreed, that defendant Woods, pay the costs of the said sale and of this decree, and the depositions and other proceedings connected therewith. “ THOMAS BALTZELL, Judge. “November 8th, 1849.” From which decree the defendant, Woods, appealed to this Court.

And here contends that the complainant’s intestate, John Bellamy, does not in his bill, set up any claim, right, title or interest in equity or any equitable lien to the land, which he, defendant, bought of Ransom J. Roberts, and that the decree of the Court below is erroneous. The agreement for the conveyance of land by the defendant Ransom J. Roberts to W. H. Williams, whose legal representative is also sought to be made a defendant, expresses no time at which the conveyance was to be made, and the vendee, Williams, had á right to have a title at any time on demand.

As Roberts ought, therefore, to have made him the title, equity will consider it as done. 2 Story Eq. Jur., Sec. 792. The agreement for title bears date 26th March, 1840, and on that day Williams executed his note to Roberts, or order, for the sum of ,$4000, payable on the 1st January, 1846, with interest at ten per cent, per annum from the 1st January, 1841, for value received in land.

As no other security but the note of Williams was taken for payment of the purchase money, according to all the authorities except in the case reported in Ambler, page 724, and a few others following its lead, and which have been repeatedly overruled, the vendor’s lien attached in favor of Roberts, and that lien in equity is said by Chancellor Wallworth to be admitted to exist everywhere in England and the United States, where there is a Court of Chancery to give effect to such a lien. 1 Paige Ch. R., 24.

On the day of the date of said note it was, as the bill alleges, endorsed, for value received by Roberts, the payee, to John Bellamy, the original complainant in this suit, who the bill alleges, guarantied and held himself responsible lor payment thereof to Bellamy, tho endorsee or assignee ; whereby the said Bellamy claims in his said bill to have a lien, charge, and equitable mortgage upon said lands, prior and superior to the title of Woods, derived through his conveyance from Roberts.

Whether the vendor’s lien under any circumstances is transferred to the assignee of the vendor, is a question which, though much discussed up to a comparatively late period, appears not to have been settled in England. See 1 Paige Ch. R., 26-7.

It may be here observed, however, that by the endorsement of the note to Bellamy, and the guarantee alleged in the bill to have been taken by him of Roberts’ individual responsibility, to say the least, a disposition on his, Bellamy’s part, to rely on the vendor’s lien, if in contemplation of equity assigned to him, does not appear very manifest, but it seems to have been his intention to have the personal responsibility both of vendor and vendee, as well as the tacit, equitable lien on the lands, with which to secure himself in the-payment of the note — whether he can do this, remains to be seen.

The bill sets up, that afterwards, Roberts, with others, fled and absconded from Florida, with all his negroes and other enumerated property; that he was pursued by Bellamy, who overtook him in the State of Alabama, and instituted legal proceedings against him, on the note assigned to him by Roberts, as well as other notes ; that proceedings were thereon had, by which he brought Roberts to a compromise on the 22d October, 1842, by which compromise Roberts agreed to confess judgment in the State of Alabama, on all the demands which Bellamy had against him, and that judgments were actually rendered in favor of said Bellamy in said State against said Roberts in three several suits — one of which was on his endorsement of the note, in this opinion referred to, and was for the sum of $4,-722 19; with interest thereon-at eight per cent, per annum from the 22d October, 1842, till paid, and costs.

And that on the same day, a final agreement or compromise was made between the parties Bellamy and Roberts, by which Roberts conveyed to him seventeen negroes, &c., for and in consideration of ten thousand dollars, admitted to have been received by said Roberts from said Bellamy, which conveyance was signed by the said Roberts, and on the same day Bellamy executed to said Roberts an indenture which recognizes that the conveyance of the slaves, &c., as above, was made in consideration of the judgments so by consent to be given to said Bellamy — one of which is on Roberts’ endorsement on the note of Williams to him- — and all of which judgments, together, besides costs, amount to the sum of about $9,717 54.

That indenture binds said John Bellamy to extend time for payment to said Roberts, for all said debts for five years from its date, and making further provision for the transportation of the slaves and other property back to Florida, and for the disposition of it by hire, sale, &c., it says, in order to enable said Ransom to pay said debts, said Bellamy agrees that he will lease him lands, &c., and further agrees that on said Roberts giving a full, perfect and complete title to the 600 acres land in Jefferson County, sold by him to Williams, to release said Roberts from his liability as endorser of said Williams’ note, and upon the debt and interest of said judgment entered thereon, “ incumbranees first to be removed, and the conveyance to be either to Bellamy or to Williams, or otherwise as Bellamy may direct,” so that said "Williams may be compelled to pay said note ; and said Roberts to make said conveyance, and discharge all incumbrance on said land within ninety days from the date of the indenture.

The indenture further provides, that at the expiration of five years from its date, if any portion of said debt, interest, and costs remains unpaid, negroes shall be sold to pay it; if any remain unsold, they are to be reconveyed to Roberts, but if all are sold and there remains a portion of said debts, interests, and costs unpaid, the said Ransom J. Roberts shall be still liable for the deficiency.

We think the plain, unequivocal effect and result of these proceedings is, that by taking judgments on these claims in the State of Alabama, and the conveyance of the slaves, &c., thereon, in the nature of a mortgage, (the indenture of Bellamy to Roberts giving to the transaction that effect,) Bellamy thereby plainly indicated his intention to rely on that mortgage as a security for the whole of his debts, &e., and in the event that was insufficient, then to rely on the personal responsibility of Roberts for the residue.

That this was intended, seems inevitable — or else why extend the time of payment on the Williams note, which would be due on the 1st of January, 1845, as in favor of Roberts’ endorsement thereon, for the term of almost three years longer ? or why consolidate the judgment obtained on Roberts’ endorsement of that note with the judgments obtained on other notes, and take a joint security by mortgage for the whole ?

In order to enable Roberts to pay these debts, it was stipulated, if Roberts would discharge the incumbrances on the lands sold to Williams, and make a good title thereof to Bellamy or Williams, or otherwise as Bellamy might direct, within ninety days from the date, that Bellamy would release him from his endorsement on the Williams note, and from the debt and interest of the judgment entered thereon.

It appears by the proofs in this case, that on the 17th of January, 1843, less than ninety days after the 22d October, 1842, Roberts filed in the Union Bank, in substitution for the mortgage which the Bank held on the lands in controversy in this suit, a security which was deemed satisfactory to the Bank, and it thereafter executed a release to him of his' mortgage, which was filed for record in the Clerk’s office for Jefferson County on the 17th February, 1843, and that thereafter he tendered a deed of said land to said Bellamy on the 1st day of June, 1843, who declined taking it, and refused to accept it, saying he would not give the consideration therein of $4000, but was willing to give what it was worth.

No objection was here raised that the incumbrances were not removed, or any defect suggested as to the tenor or execution of the deed, nor yet was any thing said as to the time being too late, but only the price was too much. Bellamy, in his bill, alleges, that time was of the essence of his contract with Roberts, in regard to this conveyance, because about the 1st of January, 1843, Williams was expected at Tallahassee to attend the Legislative Council, and he could then see him and compel him to take the land, or sue him in Middle Florida if he refused, or compromise with him.

It is not alleged, that Williams did come at the expected time, or that Bellamy was injured by the delay; no damage is stated in the bill, but only it is urged that time was of the essence of the contract. In Story Eq. Jur., Sec. 776, it is laid down as true, that Courts of Equity have regard to time so far as it respects the good faith and diligence of the parties. But if circumstances of a reasonable nature have disabled the party from a strict compliance, or he comes recenti facto, to ask for a specific performance, the suit is treated with indulgence and generally with favor by the Court.

We cannot see in this, bad faith on the part of Roberts ; he did, as soon as lie reasonably could, all that was necessary, to invest Bellamy with an unincumbered, legal, valid title to these 600 acres of-land in controversy, which title Bellamy refused to accept, and he, Roberts, might, thereupon, with propriety, perhaps, have gone into a Court of Equity, and tendering the conveyance, might have compelled Bellamy to release to him the whole amount of the judgment and interest obtained by Bellamy in the State of Alabama, on and by reason of his, Roberts’ endorsement on the Williams note.

Or he might, as he appears to have done, have abandoned that contract and obligation of Bellamy to him, in which last event no objection is perceived, so far as Bellamy’s interest is concerned, to his selling to any purchaser he might meet. To return to the consideration of the security by mortgage taken by Bellamy from Roberts in the State of Alabama on the 22d of October, 1842.

It seems proper to remark, that the lands are not mortgaged or named or recognized as under lien to Bellamy, nor does the transaction which there took place, in the direct conveyance by Roberts to Bellamy, or in his indenture explanatory of the transaction given to Ransom J. Roberts, state or shew, that the conveyance or mortgage was given by Roberts or received by Bellamy, as an additional or further security for the whole or any part of said judgment debts, but on their face appear to be the entire security taken to secure payment of the whole debt.

Whether by the endorsement of vendor, and his guarantee of payment of Williams’ note, he gave or transferred to Bellamy the vendor’s tacit or equitable lien, comes now to be more particularly considered. In the case of Francis vs. Hazleriggs, Executor, it was held, where the vendor gave a conveyance and took a bond for the purchase money, in which a third person joined as security, there was ho lien upon the land. Hardin’s R., 48. And in the case of Bradford, administrator, et al. vs. Marvin and Martin, 2 Flor. R., 463, this Court expressly recognize the same doctrine.

Authorities to the same effect might be multiplied. Now what, let it be asked, supposing Bellamy invested with the vendor’s lien, by virtue of the endorsement of Roberts, is Roberts’ guarantee to him, but an agreement of Roberts to become security for the payment of the amount of the note by Williams to Bellamy ? Bellamy being supposed then in the position to claim the vendor’s lien, as against Williams, takes the additional security of Roberts’ responsibility — but this in equity, as we have seen, defeats the tacit lien. In the case of White vs.

Williams, 1 Paige Chancery Reports, 506, Chancellor Wallworth says, “ The claim of a complainant for a specific lien on the premises, upon the ground that his judgment was obtained on a note given for a part of the purchase money, cannot be sustained.

At the time he bought the note of Kingsbury, the latter had unquestionably such a lien, but it is not pretended that there was any agreement that such lien should be transferred to the complainant.” And again : “ But I am not aware of any case, where the assignee of the note, or other security, has been permitted to sustain such a claim, on an implied agreement to assign the lien.” Again : “ I am satisfied that the sale and prosecution of the note to judgment, in the name of the endorsee, must be considered as a waiver of the original implied lien for the purchase money on the land.” This authority of high respectability appears much in point, and we might, with great safety, rely on it as precedent conclusive of this case.

But we feel inclined to inquire, supposing we are mistaken, and that the vendor’s lien may be. transferred tacitly to his assignee, whether in this case there has not been a waiver, or abandonment of it. The rule, as laid down in Fish vs. Howland, 1 Paige Ch.

R., 30, is “ to to sustain the equitable or implied lien, whenever the vendor has taken the mere personal security of the purchaser only, and to consider any bond, note or covenant given by the vendee alone, as intended only to countervail the receipt of the purchase money contained in the deed, or to show the time and manner in which the payment is to be made, unless there is an express agreement between the parties to waive the equitable lien.

And on the other hand, to consider the lien as waived, whenever any security is taken on the land or otherwise, for the whole or any part of the purchase money; unless there is an express agreement that the equitable lien on the land shall be retained, the lien is lost.” The Chancellor says: “This constitutes a safe rule, easily understood, and which I consider established by a weight of authority in this country which is not easily shaken.” This Court, in the case before referred to, 2 Florida R., 471, say, quoting from 4th Kent’s Commentaries, 152-3 — “ Taking a note, bill or bond, with distinct security, or taking the distinct security by itself, either in the shape of real or personal property from the vendee, or taking the responsibility of a third person, is evidence that the seller did not repose on the lien, but upon independent security • and it discharges the lienr and taking deposit of stock discharges the lien.” If, therefore, we were to consider that, by the assignment of Williams’ note to Bellamy, he became tacitly invested with the implied lien, which Roberts, the original vendor, had upon the lands sold by him to Williams, the vendee, yet it woulcT be no stronger in his hands, than in the hands of Roberts; and we have seen that the-taking a distinct, separate security discharges the lien.

And there was no express agreement originally to transfer the lien to Bellamy, nor yet any agreement when Bellamy took the separate security, that he should either have or retain any equitable lien on the lands. Nor will the complainant’s case be better, by considering that Roberts held the legal title, to secure the payment of the purchase money; for if so, then Bellamy, as assignee, to have that lien, ought to have had the title conveyed to himself; for equity will not force it out of the vendor, (the purchase money being due,) for less than the sum it secured.

But we have seen when that was offered' him, he refused it; and he shows, both by his bill and his statement at the time the deed was tendered him, that he did not consider the lands a sufficient security for the amount of Williams’ note; for he says in the bill $2,000 are as much as they are worth, and at the tender he says that they were not worth $4,000 ; and yet at that time the note, with its interest, was worth near $5,000.

He, Bellamy, has shown by his bill, that he took a distinct, separate, substantive security from Roberts for the amount of the judgment which he had obtained against him in Alabama, on his, Roberts’, endorsement of said note,, for its full amount, with the interest then due ; and unless there had been (which is not alleged) a distinct agreement he should keep that note as collateral security, the property of it was-no longer in him, and Roberts, the endorser, was entitled to the possession, and it ought to have been restored to him.

There is also reason to suppose that Bellamy himself either never thought of, or did not rely on the vendor’s lien, until a short period before he filed his bill in this case ; for Roberts’ agreement to convey to Williams-was never recorded until the 19th day of June, 1844, and then by the request of Bellamy’s counsel, and without proof of its execution - The opinion of the Court is, that the demurrer of the defendant,. William J.

Woods, to the bill of complaint filed in this cause, is well-taken ; that the bill on its face sets up no right, title, or interest in equity, or an equitable lien to the land in controversy, in favor of the complainant and appellee, and that the judgment and decree rendered therein, as against the defendant, William J.

Woods, is erroneous : It is, therefore, considered, ordered, adjudged and decreed, that the decree of the Circuit Court, rendered on the 8th of November, 1849, and entered of record on the 23d day of November, in the year last aforesaid, be, and the same is hereby, reversed, annulled and set aside, in all things therein contained ; and it is further ordered and decreed, that the said bill, so far as the same relates to the defendant, William J. Woods, be dismissed, and that ho go thereof without delay, and that he recover his costs, &c. Per curiam.