delivered the opinion of the court.

This was a bill in chancery, filed by the defendants in error, to enforce their vendor’s lien for the unpaid purchase-money of a tract of land.

The material facts appear to be as follows: In November, 1841,, the defendants sold to Christopher Bullard the tract of land, receiving from him two notes for the purchase-money, one payable in December, 1843, and the other in December, 1844, and executing to him their bond conditioned to make title to him on the payment of the notes, and delivering possession to him. Bullard died prior to August, 1853, after having made certain payments upon the notes, and upon petition of his heirs, the land was sold by order of the Court of Probates, and purchased by one Wynne, who executed his two notes for the purchase-money, payable, one in one year and the other in two years, each for the sum of $2150, which were delivered to the administrator of Bullard. Shortly afterwards, a settlement was had by the bank with the administrator, by which the latter transferred in payment of the balance of Bullard’s notes, then ascertained to be $2825 03, one of the said notes of Wynne, and a note of one Hall for $735; and at the same time, the administrator executed the following agreement in writing: “ If any of the above notes are not paid, or the payment of the same, or any one of them, is *532evaded by any technicality of the law, and payment thereof refused, I bind myself, as the administrator of the estate of said Bullard, to make up the deficit; and furthermore, that the deed from the bank to the heirs of Bullard for said land shall not be recorded, until the attorneys are satisfied as to the payment of the same. August 10th, 1853. Geo. Foote, Admr.” The deed here mentioned was afterwards recorded, without objection of the attorneys of the bank. The original notes of Bullard were given up to his administrator, when this settlement was made.

Afterwards, suit was brought upon one of the notes of Wynne, which he defended on the ground of failure of consideration, arising from the invalidity of the sale under which he had purchased, and judgment was rendered in his favor. He then refused to pay the balance due upon his note transferred to the bank, as above stated, and surrendered the land to the heirs of Bullard, who sold it to one Tate, who, it is alleged by the bill, purchased with notice of the claim of the bank, and, by agreement with the heirs, retained an amount of the purchase-money sufficient to pay the debt of the bank.

The bill is filed against the administrator and heirs of Bullard and Tate, praying the enforcement of the vendor’s lien of the bank; and upon personal service of process upon some.of the defendants, including the present plaintiffs in error, and upon publication as to certain others, the bill was taken pro confesso. A guardian ad litem was appointed for certain minor defendants, and the usual •answer filed as to them ; and upon final hearing, a decree was made ordering the land to be sold in payment of the debt due the bank.

Part of the defendants,.against whom the bill had been taken pro confesso, afterwards and in vacation, presented their petition praying that the pro confesso and decree be set aside, and the cause opened with permission to them to answer the bill; which application was- denied.

The first error insisted upon is, that under the state of facts shown by the bill and the proofs taken, the decree enforcing the vendor’s lien was erroneous, because it appears that the bank had taken other security for the purchase-money due her, having sur*533rendered the original notes given therefor, and executed an absolute conveyance of the land.

This objection appears to be well taken. It is too well settled to admit of controversy, that where a distinct and independent security is taken for the purchase-money, the lien is discharged. Here the original notes, which constituted the indebtedness of the purchaser for the purchase-money, were given up and cancelled, and the bill expressly states this was done upon receiving from the administrator notes executed by other persons, and a written guaranty by the administrator, for the payment of the same, which instrument also states that the notes so transferred were in payment of the original notes for the purchase-money. This was clearly an abandonment of the claim existing under the original contract, and the acceptance of a new and distinct security in lieu of it.

If it be conceded, that the guaranty of the administrator was binding upon the estate of the intestate, still that does not destroy the effect of the transferred notes as a distinct and independent security for the debt. For the transferred notes would be the principal security, and the liability of the estate would be secondary and collateral ; and it would be a liability not directly for the performance of the contract of the intestate to pay the purchase-money to the vendor, but that the makers of the notes should pay the same. It would, therefore, be a much clearer case of waiver of the vendor’s lien, than if the vendee had given collateral security upon his notes for the purchase-money, he continuing primarily bound for their payment, which would clearly have discharged the lien.

But the guaranty of the administrator did not bind the estate of the intestate. If the note of Wynne, transferred by the administrator, had been proper assets of the estate in his hands, he had no authority in law to bind the estate by a collateral guaranty for its payment; and if the guaranty had any effect, it was to bind him individually. The note, however, was not legitimately in his hands as assets. It was executed for the purchase-money of the land sold under a decree of the Court of Probates, upon the application of the heirs, and for the purpose of division among them, by a commissioner appointed for that purpose, and was made payable to the commissioner. The bill alleges that it was “turned over” to Foote *534the administrator, but in what manner, and under what authority, does not appear. It is probable that it was by private arrangement with the heirs, who consented that he might use it in discharging the original notes for the purchase-money. But be that as it may, it is clear that it was not legally in his hands as assets of the estate, and therefore, he was incompetent, under any circumstances, to create an obligation upon the estate by his guaranty. And hence the debt against the estate must be considered as wholly discharged, and that the bank held in lieu of it the transferred notes and the guaranty of Foote; and, of course, under such circumstances, no vendor’s lien could be enforced.

It is immaterial that the deed conveying the land to the heirs of Bullard, upon the settlement made with the administrator, was delivered to him, on his agreement that it should not be recorded until the attorneys of the bank were satisfied as to the payment of the notes transferred. For the original debt for the purchase-money having been paid and discharged, and the liability of the estate of the vendee thereupon extinguished, there was nothing on which to base a bill to enforce the vendor’s lien; for the party bound upon that contract was discharged. If the deed was properly recorded, with the sanction of the attorneys for the bank, no lien was retained; for there is^no pretence that any lien was retained when the settlement was made, except what arose from the agreement to withhold the deed from record. It is not alleged in the bill that the deed was recorded without authority, and in violation of the agreement made between Foote and the attorneys of the bank w'hen it was executed. On the contrary, the bill appears to hold the idea, that the registration of the deed was proper and valid; for it states that it was done, “ if not with the consent, at least without objection from complainants’ attorneys,” and no objection is made on the ground of improper registration of the deed. Upon such a state of case, the vendor’s lien cannot be sustained upon the assumption that the deed was recorded improperly, and ■in violation of the agreement and of the reserved right of the •bank.

But if the bill were framed with that view, and contained the proper allegations to that effect, though it might entitle the bank to have the deed set aside as having been fraudulently recorded, *535and the legal title to the land restored to her, as though the deed had never been executed, with the right to enforce her equitable claim upon the land; upon which view, we do not intend to express any opinion; yet it does not entitle her to maintain a bill to enforce a vendor’s lien. For, 1st, the contract of the purchaser, which it is the object of the proceeding to enforce, is entirely discharged; and 2d, if the deed is inoperative as a conveyance, the legal title is in the bank, and it presents no ease in which the vendor can come into a court of equity to enforce his lien for unpaid purchase-money. His remedy, if any, is by another mode of proceeding than by a bill framed, as-this is, for the enforcement of the vendor’s lien.

This view disposes of the case, and renders it unnecessary to consider the other assignments of error.

Let the decree be reversed, and the bill dismissed.