Gessner

I dissent, and adhere to the views expressed in the former opinion. (Post, p. 96.) I cannot subscribe to the doctrine that the owner in fee of land who simply agrees to convey it upon the payment to him of certain money evidenced by a promissory note is in the same position as one who conveys the land and takes back a mortgage; or that if, in the former case, he merely assigns the promissory note, the assignee of the note has a lien on the *95 land. If the latter can enforce such a lien, he must be able to relea se it. But how could he release it? It could be released only by conveying the land to the vendee; but how could he convey that which he hath not? If, after the assignment of the note, the vendor should convey the land to the vendee, what then would be the condition of the supposed lien of the assignee of the note ?

The whole doctrine must rest on the untenable proposition that the assignment of a negotiable promissory note is a conveyance in fee of land.

I knowtliat some of therecent text-writers speak of such a case as bearing “ a strong similitude to that of mortgagee and mortgagor,” and say that although it “is often spoken of in the cases as a vendor’s lien,” yet,…

— This is an appeal from an order deny, ing a motion to dissolve an attachment. The motion was made on the ground that the note upon which the action was brought was given to Webster, plaintiff’s assignor, in part payment for certain land purchased from him by defendant; that Webster had a vendor’s lien as security for the pajrment of the note; that the lien passed to plaintiff by the assignment of the note, and being thus secured, an attachment was improper.

The affidavit filed in support of the motion states that the defendant purchased certain land from Webster, under a contract which provided for payment of the purchase price by installments, and that at the time and place of making said contract for the sale and purchase of said lot of land, and as part of the said contract, the defendant executed and delivered to Webster the promissory note sued on; and that Webster still holds, against the defendant, the contract, giving him the right to purchase.

There is, perhaps, no subject of equity jurisprudence discussed in the books upon wiiich there is a greater diversity of opinion than exists in relation to the origin, nature, and effect of a vendor’s lien, against whom and in…