498 MORETON v. HARRISON.

upon a denial of the admissions and promises charged in the
bill; upon the positive bar of the statute of limitations in rela-
tion to bond debts; and upon the presumption of payment arising
from the lapse of time.(g)

The defendant's solicitor seems to'have considered the contract,
upon which this suit has been instituted, as a mere stipulation for
the payment of money, and nothing more. But there is a substan-
tial distinction between a loan of money and a sale of property. In
a contract of loan there never is any other intention than that of
creating the relation of debtor and creditor; and the contract is as
complete, and the relation of debtor and creditor attaches as firmly
without as with a written evidence of the debt. A mortgage,
bond, or note, given as a security, is a mere accidental circum-
stance in a transaction concluded and complete by the advance of
the money. The stipulation entered into as a security is an addi-
tion which does not arise as an incident, or in any respect follow
as a necessary legal consequence of a contract of loan. In a sale
of real estate the principles of equity are materially different. In
purchase, payment is an essential part of the contract; consequently,
where the whole, or any part of the purchase money remains unpaid,
it is an established general rule, derived to us from the civil law, that
the vendor holds a lien upon the estate sold for the purchase money
unpaid. The adjudications upon the subject have occasioned some
difficulty in ascertaining what shall amount to a waiver or relin-
quishment of this equitable lien; but it is perfectly well settled,
that in every case of a purchase of real estate, where there has
been no such waiver or relinquishment, the vendor has a lien upon
the property sold to secure the payment of the purchase money, as
against the vendee, his heirs, and all others who take under him
with notice. This vendor's lien is an equitable incident uniformly
and necessarily arising from, and associated with every contract
of bargain and sale of real estate, where the purchase money is
not paid; and, is considered as parcel of the contract itself,
unless it be, shewn to have been tacitly or expressly aban-
doned.(h)

The case presented by this bill is one arising on a contract of
bargain and sale of real estate with an incident lien for the pay-

(g) Mitf. Plea. 306.—(h) Sug. Vend. & Pur. ch. 12; Pow. Mort. 1062; Brown v.
Oilman, 4 Wheat. 256; Bayley v, Greenleaf, 7 Wheat. 46; Tompkins v. Mitchell,
2 Rand. 428.