This bill is not one to enforce a vendor’s lien upon land. In this case, that has been released and abandoned, and the land has passed into the hands of innocent purchasers for a valuable consideration, who purchased the house and lot “ free from ” Steele’s “ claim or lien.” This appears from the contract set out in the bill. The lien, then, is gone, so far as the land is concerned. Without the lien against the land, there can be no suit in chancery to collect the note. There is a clear and well ascertained remedy at law, if it is not barred, on the note by action of debt. When this is the case, equity will not take jurisdiction. — 1 Story’s Eq. § 25, et seq.; McCullough et ux. v. Walker et ux., 20 Ala. R. 389; Elliot v. Bank of Mobile, 20 Ala. 345. There was, then, no remedy on the note in a court of equity, on the statement of facts presented in the bill. Does the contract between Steele and Fariss, which I suppose was executed some time about the date of the sale to Holding & Fletcher, to-wit, about December 16, 1867, help the case? I am constrained to say it does not. This is merely a written agreement upon certain considerations to pay a sum of money on the happening of certain events. It is not a mortgage, or a trust on the estate of Dickson. No one but Dickson himself could bind his estate by such an agreement. An administrator has no such authority. He is a trustee with limited powers. *620He can neither waste the estate of the deceased, or charge it with new liabilities. — 1 Williams on Ex’rs, p. 562, and notes, (Amer. ed. by Fish, 1859); Willis’ Adm'r v. Heirs of Willis, 9 Ala. 330. The contract between Steele and Fariss did not bind the estate of Dickson, but only Fariss individually ; and its breach created only a personal obligation on Fariss to pay whatever damages such breach might have occasioned. And for the collection of the debt so contracted there is an ample and unembarrassed remedy at law.—Wade v. Pope et al., 44 Ala. R. 690; Jones v. Dawson, 19 Ala. 672.

It also appears from the record, that the bill in this case was filed after the estate of Dickson was declared insolvent. It could not, then, be filed to enforce collection of Steele’s notes against the estate of Dickson, but only to enforce the lien dependent on the note. But this lien was released by the contract above set out, and the equity of'the bill could not rest on this lien. It was not to follow a trust fund which had gone into the hands of Fariss as the administrator of Dickson’s estate; because he could not thus create a new liability against that estate. Nor does it appear to me, that the bill is so framed as to bring the relief sought within the principle laid down in Coopwood v. Wallace, (12 Ala. 790). If there is any party to the agreement between Steele and Fariss entitled to relief in equity, it is Fariss, after he may have paid whatever balance there may be due on Steele’s note. But that would be a novelty not less trenching upon long settled principles of equity jurisdiction than the case of Coopwood v. Wallace, above cited.

There are other objections to the relief sought by the bill, which arose on the answer and proofs in the court below. But as these were not really questions in the case presented by the bill, they will not be discussed until they more directly arise.

A careful examination of the whole case, as presented by the bill, satisfies me that the learned chancellor’s decree is correct. It is, therefore, affirmed, with costs.

(dissenting.) — The decision of the court is rested on the proposition that a vendor of land with the lien is without equitable remedy, when by agreement with the administrator of his vendee, he omits to give notice of his lien at a sale of the property, as that of the decedent, under order of the probate court, in consideration of the retention of the purchase-money by the administrator subject to his lien, if established.

The administrator admits that he now has the money in possession. The only interest which the probate court did or could authorize the sale of, was the right which the decedent had in the land, subject to the prior incumbrances of other persons. The proceeds must be appropriated in the same manner as other assets; and neither the probate court, nor the court of chancery, has authority to direct their appropriation to the payment of the original purchase-money, in preference to other demands against the estate. Vaughan & Hatcher v. Holmes’ and West’s Heirs, 22 Ala. Rep. 593.

The lien of the complainant on the land being admitted, unless the debt had been paid, which the administrator affirmed, the latter was unwilling to prejudice the sale by notice of the lien for a large, but disputed amount. Is the administrator such a machine of the law and the probate court, that it was neither his privilege nor his duty to remove the obstacle to an advantageous sale? He could not go into equity himself, because he denied the debt, and the only inducement would have been to realize as great a sum for the estate as practicable. An unnecessary litigation of this sort would have been at his own expense. No consideration of public policy intervenes because the transaction was entirely for the benefit of the estate, and could not be otherwise. In Vaughan v. Holmes, (supra,) the court said that on account of the embarrassments likely to arise, it would be disposed to hold, but for former adjudications, that the probate court had no authority to sell inchoate equities. In that case the estate had not the legal title. In Kirkman v. Benham, (28 Ala. 501-6,) the very question *622we are considering was suggested by the court without an expression of opinion.

Executors and administrators are, in almost every respect, considered in equity as trustees. — Leavens v. Butler, 8 Porter, 380. Where the estate is insolvent, they are the trustees of the creditors. Liens may be created on the purchase-money, due on the sale of an estate, in favor of a vendee, if it is agreed that the money shall be deposited in the hands of a third person, to be applied in discharge of prior incumbrances, to the extent of such incumbrances. Indeed, there is generally no difficulty in establishing a lien, not only on real estate, but on personal property, or on money in the hands of a third person, wherever that is a matter of agreement, at least, against the party himself, and third persons, who are volunteers, or have notice.— 2 Story’s Eq. Jur. § 1231. The original vendor may proceed against the land or the purchase-money in the hands of a subsequent purchaser for value without notice, if he has not paid. This is upon the ground, that where trust money can be traced, it shall be applied to the purposes of the trust. — 2 Story’s Eq. Jur. § 1232. Money, or other property, delivered by one person to another, to be paid or delivered over to and for the benefit of a third person, raises an implied trust in favor of such beneficiary. And if revocable, when it is revoked a trust results in favor of the party who originally created it. — 2 Story’s Equity Jur. § 1196.

Erom these recognized principles may be deduced that the incumbrancer may enforce the trust in favor of the vendee created by the deposit of the purchase-money; and that it is the receipt of the money for the purpose specified that gives rise to the trust against the party receiving it. This being the case, as Eariss received the money subject, by his agreement, to Steele’s demand, he is undoubtedly trustee for Steele of that money, unless some one else has a better right to it. The estate of Hickson can not have a better right, because the purchaser would have been informed of the lien, and graduated his bid accordingly. *623The administrator did not sell simply his intestate’s interest, but the entire property with a perfect title. This he was enabled to do by the agreement. The estate was not entitled to any of the money until after the superior right was satisfied. The bill does not contemplate fixing any liability on the estate in consequence of the act of the administrator, but simply an ascertainment of what belongs to it. It is necessary, because without the intervention of equity, the fund must be distributed as other assets. The estate is insolvent; the administrator did not promise to do more than to retain the fund subject to the lien to be established against the land. If there is no trust, he is responsible personally to Steele without recourse on the estate. If he is insolvent, Steele must lose his claim. There is no recourse upon his sureties. Whose rights or interests are jeoparded that these results must follow rather than a trust be decreed.

To constitute a trust, there need only be a trustee and a cestui que trust. And there is no difference between a trust created by the deposit of money in the first instance, and one where the money is raised by the sale or conversion of property deposited with a trustee to convert into money. As long as the trustee holds it capable of being distinguished from his own money, the trust will be presumed to exist.—Maury v. Mason, 8 Por. 211.

The complainant has proceeded against the administrator in his official capacity only. Perhaps it would have been better to have treated him as a trustee individually, and also to have made him a party officially to preclude the estate. But I do not know that it would. The fund is the subject of the suit, and it is indifferent into whose hands it is traced with notice of the trust. I think the decree ought to be reversed.