delivered the opinion of the court.

Johnson sold to one Fisher a lot of ground, for which Fisher gave him two promissory notes, each for three hundred *132dollars, in each of which notes it was specified, that it was “part consideration given” for the lot bought of the plaintiff, it being also stated as follows: “ His title bond to me bears even date herewith.”

The plaintiff gave to Fisher his title bond, in which he recited the sale and the execution of the two notes, called therein bonds, as the considerations for the sale, and bound himself to make to “ Fisher, his heirs or assigns, a good and sufficient general warrantee deed to the lot of ground, with all the appurtenances thereto belonging, so soon as the two bonds aforesaid, together with accruing interest, according to the tenor and effect of said bonds, are fully paid.” Fisher assigned the title bond to the defendants Nolley & Scott. Nolley subsequently assigned the same to Scott.

This suit was brought by Johnson to enforce his vendor’s lien for a portion of the purchase money.- The petition stated that the second of said notes had been nearly all paid, and that the plaintiff took, in lieu of the first one, a note of Nolley and the other defendant Ford, dated on the day of the maturity of the first note, (November 15, 1858,) and payable on the first day of October, 1859. Nolley and Ford did not answer the petitions.

Scott answered and denied that the note of Nolley and Ford was given in lieu of one of the notes given by Fisher, and averred that he had fully discharged and satisfied the notes given for the original purchase money for said property, and produced them in court, and prayed judgment that the plaintiff be compelled to make him a deed of conveyance of the property.

At the trial the plaintiff called Fisher as a witness, who described his purchase of the lot from the plaintiff and his giving notes therefor, and stated that the notes had never been surrendered to him. He then called Ford, who testified that he signed the notes sued on as surety for Nolley, but that he did not know what was the consideration of it, and had no further knowledge of the transaction.

He then called Nolley, who testified: “ I gave the note *133sued on in this case in lieu of the note that he held on Fisher. I wanted the use of the money and gave my note with D. D. Ford as security, and took up the note he held on Fisher. Scott and myself borrowed the money to pay the note off, and the money was placed in my hands for that purpose. I do not remember that anything was said by me to Johnson about the lien upon the property ; I think nothing was said about it. I do not remember that anything was said to me by Johnson about the money in my hands to pay the note. I believed at that time that the note I was making to Johnson was perfectly good with Ford as security. I wanted to settle the matter at that time with Scott, and made this change of notes with Johnson- that I might do so.”

The defendant Scott only gave in evidence the title bond and the two notes given by Fisher to the plaintiffs.

Judgment was given for the plaintiffs against Nolley and Ford for the balance due on their note, and also subjecting the lot of ground to a lien for the amount of that judgment, and ordering its sale for the satisfaction of that judgment.

Scott has brought the case to this court by writ of error.

In this case the bond expressly stipulated that the conveyance was to be made so soon as the consideration was paid, and consequently, unless there was an express waiver of the lien, (which would not result from the mere acceptance of other security,) the lien remains in force until full payment of the consideration.

The question is, therefore, whether the consideration has been paid. The evidence does not show payment; although the old note was in effect cancelled, another was substituted for it, and the debt still remained unpaid.

The hardship upon Scott of having to pay a portion of the consideration twice, does not result from the action of the plaintiffs, but from the fraudulent conduct of Nolley.

Judgment affirmed.