liable neither to pay the tax, nor to forfeit. This assumption is one which cannot be sustained by the Court.

Robbins had an estate neither greater nor less than his assigner or lessor, and was entitled to the same privileges, and subject to the same burdens and disabilities.

It is further argued, that this land was properly listed in the name of M'Millan's heirs; and that the estate is not forfeited for the failure of the tenant to list, inasmuch as there is no proof to show that the assessor or lister called upon the defendant, and demanded a list. Whether this objection is well taken, we deem it unnecessary to determine, inasmuch as a forfeiture is incurred, as well in consequence of the non-payment of the tax, as for a failure to list, and the case shows that the tax was not paid by the tenant for life, but that the land itself was sold for the tax.

The counsel for the defendant insist, however, that there can be no forfeiture, on account of the non-payment of the tax, because they say the Legislature have not said expressly, within what time it shall be paid, or the penalty incurred.By the general law on the subject, taxes are made payable to the county treasurer, on, or before the first day of December of each year; and if not then paid, a penalty of ten per cent. is incurred. The tax, together with this penalty, may be paid at any time during the month of December, and if not then paid, the land on which the tax is charged, is returned delinquent; and if a second time delinquent, is sold for the tax. It would be absurd to say, under such circumstances, that no time is fixed within which the tax is to be paid. To us, it would seem difficult to make use of language to fix it more definitely than has been done. It is claimed that the defendant has a right to redeem, and that having deposited the money for this purpose, with the proper officer, no forfeiture is incurred. No person has a right to redeem lands sold for taxes, unless he has some interest. The interest of the tenant for life is forfeited, not by the sale of the lands, but by his neglect or refusal to pay the tax. The fact that the land has been. sold, is evidence of the failure to pay. And when this failure is established, the interest of the tenant is ended. This case is not between the purchaser of the tax-title and the previous owner of the land, but between the reversioner and the tenant for life. The heirs of M'Millan having the reversionary interest, would have the right of redemption; but Robbins has not, because his interest in the land is entirely gone.

Another ground of defence is, that the law under which the plaintif seeks to recover, is unconstitutional. If this be true-if it is clearly against any provision of the Constitution, this Court will not enforce it. We have not been referred to that part of the Constitution which is violated. Perhaps it is the 16th section of the 8th article. This section provides that "no ex post facto law, nor any law impairing the validity of contracts, shall ever be made; and no convic tion shall work corruption of blood, or forfeiture of estate." The section of the law now under consideration, is not ex post facto. It has no retrospective operation; it is entirely prospective in its requisitions and effects. Neither does it. interfere with the validity of a contract.

But it is said to work a forfeiture of estate. There is no difficulty in ascertaining the intention of the Convention, in introducing this clause into the Constitution, and it is impossible to believe that a case in any shape similar to the one now before the Court, was in view. We know that in England, the conviction of many offences, works "corruption of blood and forfeiture of estate." And this operates in many, if not in all cases, from the time of the commission of the offence. The forfeiture is to the King. The blood is also corrupted. The attainted person cannot inherit lands from his ancestor, neither can he transmit an inheritance to his heirs. In truth, the punishment of the offence is not confined to the individual offender; but is extended to his wife, his children, and his heirs, by depriving them of his estate, and thereby, in some instances, of the means of subsistence. It was against a state of things like this, that the Convention intended to provide; and they have, therefore, put it beyond the power of the Legislature to enact "that any conviction shall work a corruption of blood or forfeiture of estate."

What is the case before the Court? The law of the State has provided, that, with some few exceptions, all lands shall be subjected to taxation; if the taxes are not paid, the lands shall be sold, and the rightful owner divested of the title, and the same be transferred to the purchaser. So far there is no complaint. This is all right and just. It is well, because so far the law has said nothing about forfeiture. But what is the effect? The owner of the land loses his title as completely as if the same had been in express terms declared to be forfeited.

The same law has made it the duty of a tenant for life to pay the tax upon the land of which he is thus seized. This is admitted on all hands to be just and proper. Receiving the rents and profits of the land, it is right he should pay all taxes with which it may be burthened. But if he does not pay the tax, the law declares that his estate shall be forfeited in favor of the remainder man, or reversioner. It is not the thing done, but the word used, which makes the difficulty. If the Legislature, instead of saying the tenant for life "shall forfeit" his estate, had said, "such estate shall cease and determine," I apprehend no one would have suspected an interference with the Constitution. This is the effect and the only effect produced, and I deem it an immaterial matter what words are used. To my mind it is clear that there is nothing in this 14th section of the act of 1824, interfering with the provisions of the Constitution.

Upon the whole, a majority of the Court are of opinion, that the law arising upon the agreed state of facts, is with the plaintif, and judgment must be entered accordingly.

JUDGE COLLETT dissented.

3

REMEMBRANCE WILLIAMS, vs. SILAS ROBERTS AND OTHERS.

The vender of land, who makes a conveyance, and takes notes with personal security for the purchase money, does not retain a lien on the land for that purchase money.

THIS was a suit in Chancery, reserved from the county of Green.

The bill sets forth in substance, that Williams, in September, 1817, sold and conveyed by deed of bargain and sale, to one David Connelly, two hundred and sixty-nine acres of land, in the county of Green, for three thousand five hundred and ninety-six dollars, sixty-six and two-thirds cents. The purchase money was all paid with the exception of one thousand and eight hundred dollars, which was to be paid in six annual installments of three hundred dollars each. To secure the payment of these installments, six several single bills were executed by Connelly, with one William A. Beaty, as his security. These bills were made payable on the first day of October of each succeeding year; and those which fell due in October, 1818, 1819, and 1823, were paid; but those which fell due in 1820, 1821, and 1822, were unpaid, and still due and owing. It was further set forth that both Connelly and Beaty had died insolvent, the latter a number of years after the last single bill became due; and that there were no means by which the complainant could expect to collect his debt, except by sale of a part, or the whole of the premises.

The bill further sets forth, that on the 23d of October, 1823, and soon after the last installment became due, Roberts took from Connelly a mortgage on the same land, to secure the payment of one thousand dollars. That on the 30th of December, 1824, he took another mortgage to secure the payment of nineteen hundred dollars; and that in September, 1826, he took from the said Connelly and wife, a release of their equity of redemption, whereby both the legal and equitable title was vested in him. It was expressly charged, that at the time Roberts took these several mortgages, and the deed of release, he had full knowledge that Connelly had not paid for the land, but took the conveyance with a design to prevent the complainant from collecting his demand, and to defraud him. The personal and legal representatives of both Connelly and Beaty, as well as Roberts, were made defendants; and the prayer of the bill was, that Roberts might be decreed to pay the balance of purchase money due complainant, or that so much of the land might be subjected to sale, as would raise an equal amount. There was also a prayer for general relief.

The answer of Roberts admitted the sale by complainant, to Connelly, but denied that he, Roberts, had any knowledge of the terms. Whether Connelly or Beaty were insolvent, or to what extent they were insolvent, defendant did not know; but alledged that long after the first of October, 1823, the former was abundantly able to have paid the complainant's demand. The execution of the two mortgages and release was admitted; but it was denied that at the time the deeds were executed, the defendant had any knowledge that Connelly was indebted for the land. Although he had heard that Connelly was owing Williams, he did not

know for what consideration, or in what amount.

He denied all fraud, &c.

The circumstances connected with the execution of the first mortgage were alledged to be these. Previous to October, 1823, Connelly was largely indebted to the defendant. About that time, Williams applied to him, and requested him to purchase the single bill which fell due on the first day of that month. He professed himself willing to purchase, if Connelly would secure the payment. Williams replied that Connelly was abundantly able to secure him, as he had a clear deed of his land. After being repeatedly urged by Williams, and after having conversed with Connelly, he agreed to make, and did make the purchase, and took the mortgage to secure the payment of the note, together with the amount previously due him. During the whole of this negotiation, Williams did, not suggest, or intimate, that he had any claim upon the land.

The administrator of Connelly answered, admitting the insolvency of his

estate.

The other defendants did not answer.

Many witnesses were examined, and it might be difficult to come to a satisfactory conclusion as to the real state of facts; but in the view which the Court have taken of the case, it is not very material; nor is it necessary to recapitulate the evidence.

ALEXANDER for complainant.

A vender has a lien on his land for the purchase money, whilst in the hands of his vendee, or assignee, with notice. (Garson vs. Green, 1 J. C. R. 308, Champin vs. Brown, 6 J. C. R. 398, Tiernan vs. Beam and others, 2 Ohio R. 384, Brown and others vs. Gillman, 4 Wheat. 255, 3 Bibb, 183.)

Equity does not afford its aid against a purchaser for a valuable consideration, without notice; but a notice of incumbrance stops all proceedings towards the completion of the purchase, or the payment of the money. (Frost vs. Buckman, 1 J. C. R. 300,) and a party claiming relief as a bona fide purchaser, must positively and precisely deny any notice, although it is not charged in the bill. (1 J. C. R. 566, 301–2, 2 J. C. R. 355, 3 J. C. R. 345, 7 J. C. R. 65–66– 67.)

A defendant is bound to admit or deny all material facts, without being interrogated. (1 J. C. R. 76.)

The defendant cannot, in the hearing, take advantage of want of jurisdiction in the Court: he should have demurred. (4 J. C. R. 290–81, 2 J. C. R. 369, F Ohio Rep. 126-7.)

A careful and critical examination of the evidence shows that Roberts had knowledge of the claim of Williams, and he cannot protect himself under the pretence, that he is an innocent purchaser, without notice. The allegation in the answer, that Williams assented to the first mortgage, is not responsive to the bill, and requires proof. Of this fact, satisfactory proof has not been given.

MASON and ELLSBERRY, for the defendant Roberts.

The principle that the vender has a lien for the purchase money, upon the lands in possession of the vendee, or his assigns, with notice, is not controverted; but we insist that this principle applies only where the vender takes no collateral security for the purchase money.

Wherever independent collateral security is taken, it is evident that the vender did not intend to rely upon the land itself; and although such security should fail, or prove insufficient, the vender cannot afterwards resort to his equitable lien. (Sudgen, 2 Am. Ed. 397, and the cases there cited, Grant vs. Skill, 2 Ves. and Bea. 246.)

We do not insist, that the mere taking a note or bond of the vendee, will be sufficient to discharge the equitable lien, although such was formerly the law; but we have found no case in which it has been decided, that the vender retains a lien where he had conveyed the estate, and taken the note or bond of the purchaser, with personal security, for the payment of the purchase money. Such is the case before the Court. The case of Tiernan vs. Beam, (2 O. R. 383,) is not like this. In that case, the vender had not parted with the legal title, and had an undoubted right to retain it until the purchase money should be paid. As authority to show that the taking of such security discharges the lien, we refer to the case of Brown and others vs. Gillman, (4 Wheat. 255.)

If the Court should be against us upon this point, we insist that there is no evidence to shew that Roberts had any notice of the claim of Williams, and that he was, in fact, an innocent purchaser, without notice.

ALEXANDER in reply.

It was no part of the contract between Williams and Connelly, that Connelly should give Beaty as security. It was a mere voluntary thing on his part; and the complainant shall not be prejudiced by it, unless there is proof to show that Williams agreed to rely upon this kind of security; thereby releasing his equitable lien. No such proof has been exhibited.

Opinion of the Court, by JUDGE HITCHCOCK.

The principle that the vender has a lien upon the land sold, for the purchase money, while the same remains in the possession of the vendee, or his assignee, with notice, is too well established to be controverted, and it is useless to cite authorities in its support. It is founded on abstract justice.

Where the vender relies upon the land sold, as the fund from which he shall recover his compensation, he ought not to be deprived of it. Natural equity would seem to require, that before the vendee shall claim the land as his own, absolutely, discharged of all claim on the part of the vender, he should pay to that vender according to the terms of his contract. The same principle of justice would extend this lien to the vender in the case of the sale of goods and chattels. It has not, however, been thus extended, on account of the perishable nature of the property, and on account of the difficulty of enforcing it, in consequence of the