#### JOSEPH M. GAHEE v. WILLIAM M. SNEED et al.

June, 1836.

When a purchaser seeks relief from a court of t equity, because he has purchased without notice, he must deny notice. So when he sets up by plea or answer a purchase without notice as a bar to discovery or relief to which a plaintiff is entitled, he must he equally explicit in denying it. But where a plaintiff wduld convert a purchaser into a trustee, and seeks to charge him because he bought with notice, if the allegation of notice is not admitted, the plaintiff is bound to prove it.

The bill charged that the plaintiff; on the 9th day of June, 1818, conveyed to Charles Simms; (one of the defendants,) one-third part of the Lot No. 18, in the town of Milton, for the price of five thousand dollars, and took from the said Simms therefor three several bonds, one for one thousand dollars,. payable the ’25th of , December ensuing; the second, for two thousand dollars, payable the 25th of December, 1819; and the third for two thousand dollars, payable on the 25th of December, 1820: that the first of said bonds was duly paid: that- upon the second becoming due, arid remaining unpaid, the plaintiff commenced a suit at law, and obtained a judgment thereupon : that Simms. obtained an injunction against this: judgment, upon an allegation of defect of title, in the plaintiff to the lot in question : that the defendant, Sneed, and Howell L. Ridley, the testator and ancestor of the defendants, Robards, Lewis and John Ridley, became/ sureties to the injunction bond, and as an indemnity against their suretiship Simms conveyed to one John Smith the lot in question, in trust, for the benefit of Sneed and Ridley : that the injunction was afterwards dissolved, and the plaintiff obtained satisfaction of his judgment from Sneed and-Ridley, Simms being then considered insolvent: that Sneed and Ridley and their trustee afterwards sold the said lot to David Kyle, another defendant: that at the time when the deed in trust was executed for the benefit of Sneed and Ridley, they and their trustee had notice that the' judgment against which the injunction was obtained was in part for the purchase money of the lot, and also that the plaintiff held the other bond for the *334remaining part of the purchase money, and that he had no other security therefor: that when Kyle purchased he had n°tice that the last bond for the purchase money remained due and unpaid. The bill then charged that the plaintiff had obtained a judgment against Simms, upon the last bond, but that he had not obtained satisfaction thereof, Simms being insolvent. The prayer of the bill was for the payment of the balance of the purchase money by the defendants, or some of them, or that'the lot in question might be sold for that purpose, so as to enforce the lien on it which the plaintiff contended that he had in equity. The defendants put in separate answers, admitting all the material allegations of the bill, except the purchases with notice as therein charged. As to that, the representatives of Ridley, who had died, declared their ignorance of the matters charged in the bill, and therefore did not admit them, but insisted that the plaintiff might be held to strict proof of them. Sneed answered that, at the time when he signed the injunction bond as surety for Simms, and took the deed of trust aforementioned, he knew that the judgment enjoined was in part for the purchase money of the lot, but whether it was on the second or the third bond he had no means of ascertaining; that at that time it was not understood, or believed generally, that a vendor of land had a lien for his purchase money, and that not deeming the fact of notice material, he might have then had notice without being able afterwards to recollect it; that he did not, in fact, have any recollection of such notice, and that he was unprepared either positively to deny, or to admit it. Kyle expressly denied notice. No replication to these answers was filed by the plaintiff, and the case was’ heard upon the bill and answers.

Badger and Norwood, for the plaintiff.

Devereux and W. A. Graham, for the defendants.

Gaston, Judge.

The plaintiff claims in this case to have an equitable lien for the unpaid part of the price of the land sold by him to Simms, and afterwards purchased by Sneed and Ridley. Waiving, for the reasons stated in *335the case of Johnson v. Cawthorn, (ante, page 32,) the inquiry whether such a lien exists in our state, and if so, to what extent; it unquestionably does not exist against a bona fide purchaser from the vendee, without notice that the purchase money on the original sale remains unpaid. The plaintiff shows in his bill that Sneed and Ridley are purchasers, but avers that they bought with this notice. On the part of the representatives of Ridley, this allegation is as explicitly denied as it can be by those who have no personal knowledge of the transaction. On the part of Sneed, it is not expressly denied, but it certainly is not admitted. He declares in his answer that he has no recollection whatever of such notice, and therefore does not admit it; but as it is possible that the fact may have occurred, and deeming it an unimportant circumstance, he may have forgotten it; that he cannot positively deny it. We take the rule to be, that when a purchaser seeks relief from a court of equity, because he has purchased without notice, he must positively deny notice. So when he sets up by plea or answer a purchase without notice as a bar to discovery or relief to which a plaintiff is entitled, he must be equally explicit in. denying notice. The want of notice is an essential part of his equity in the one case, and of his defence in the other; and it is a general rule in pleading, that whatever is essential to the right of the party must be averred by him. But where a plaintiff would convert a purchaser into a trustee, and seeks to charge him, because he bought with notice, and therefore mala fide, if the allegation of notice is not admitted, the plaintiff is bound to prove it. Should the answer be silent, or not sufficiently explicit in this respect, the plaintiff may except to the answer, and require one more full and perfect. But if he does not except, and cannot prove the notice, he must fail because a material part of his equity is not established. Eyre v. Dolphin, 2 Ball & Beat. 303. Harris v. Ingledew, 3 P. Wms. 91. Jerrard v. Saunders, 2 Ves. Jun. 454. Walleryn v. Lee, 9 Ves. Jun. 32. As the plaintiff has not replied to these answers, the Court cannot declare that Sneed and Ridley bought with notice. The bill, therefore; must be dismissed *336as to Sneed and the representatives of Ridley, with costs, Kyle is brought in merely as a stakeholder, and as the bill not susta'ned against his vendors, it must be dismissed as to him also. Against Simms, the plaintiff has a judgment at law, and neither asks nor needs any aid in equity. The bill must be dismissed also as to Simms. As to the two latter, however, it is dismissed without costs.

PeR CuRiam. Bill dismissed.