The opinion of the Court was delivered by

The ground of the plaintiff’s claim is the liability of John Chappell, at his decease, as guardian for her estate unaccounted for. She now seeks to subject the former estate of his *155guardian to her demand, after the lapse of many years, — after it has passed into the hands of devisees, and after third persons have acquired legal rights therein through alienations by devisees.

The questions relating to the Simkins tract will be first examined as arising upon the appeals on both sides.

John Chappell devised the tract here designated, the Simkins tract, with certain limitations. J. C. Simkins became the purchaser of this tract in 1859, taking title through such devisees. He made a cash payment of $5,000 at the time of the purchase, and gave three notes in equal amounts, payable in one, two and three years, for the balance of the purchase money.

The first question to be considered is, whether the plaintiff, as a creditor of the devisor, has a right, either at law or in equity, to subject to her claim the devised lands purchased by Simkins in the hands of those taking his estate at his decease.

Whatever right the plaintiff may have at law against the devisee or his alienee is founded either upon the statute of 3 and 4 W. and M., (2 Stat., 533,) or upon 5 George II, Chap. 7. The remedy conferred by the first mentioned of those statutes is assimilated to that of the action at common law against an heir by reason of assets descended. Bona fide alienation by the devisee defeats the right of the creditor to pursue the land, but leaves the devisee liable personally to the value of the devised land. The right of the plaintiff at law to follow the devised lands into the hands of the alienee of the devisee depends, so far as effected by 3 and 4 W. and M., upon the question whether the alienation was bona fide in the sense of that statute.

5 George II makes no change in this respect. This statute has in view three distinct objects — first, to render lands “in the plantations and colonies of America” “chargeable and liable” for all debts; second, to make such lands “assets” for satisfaction of all debts “in like manner as real estates are by the law of England liable to the satisfaction of debts by bond or other'specialty; ” and, third, to subject real estate to all the remedies, processes and proceedings for the recovery of debts, either at law or in equity, precisely as personal property is subject.

As it regards the first object, namely, the creation of a general charge or liability against real estate for debts of all classes, its provisions will be hereafter examined with special reference to the question of the equitable rights of creditors under it. The remedial *156part of the statute is that embracing the'second and third objects as above stated. It is to them that we must look for the remedies that are to be taken at law under this statute. The remedies pointed out there reach to two cases — first, where the real estate thus charged is in the hands of an heir or devisee of the debtor, in which case the statute reaffirms the effect and operation of 3 and 4 W. and M., by declaring such estates “assets.” As was said in Jones vs. Wightman, (1 Hill, 579,) these two statutes must be construed together, from which it would result that the proper remedy at law, in cases of that class, is an action against the heir or devisee on the ground of assets descended or devised, and the exemption as to lands bona fide alienated would be applicable. The second case is where lauds so charged are held by some person liable to some process or proceeding in law or equity for the collection of debts, and in whose hands personal property could be subjected to such process or proceeding. This provision is, in substance, that realty so charged shall be liable to like remedies and in like manner as personal estates “ are seized, extended, sold or disposed of for the satisfaction of debts.” — Martin vs. Latta, 4 McC., 128, note.

A judgment recovered against the executor by the plaintiff would not have enabled her to seize the lands in question in the hands of the alienee of the devisee. — Bird vs. Houze, Speers’ Eq., 250. The only mode of reaching them at law would be by an action under the statute, in which the devisee would be entitled to show bona fide alienation as a defense quoad the land.

But it is clear that creditors acquire, under 5 George II, an equity to compel the application of lands subjected by the statute to their debts. Such an equity has been constantly recognized and acted upon, and has been enforced by statute provisions intended to facilitate the application of the real estate of decedents to the payment of their debts through the powers of executors and administrators acting as representatives of the interests of creditors.

It must be concluded that this action can be maintained either as in the nature of an action at law against a devisee, his alienee being joined on the ground of assets descended, or in the nature of a bill based upon the equity of 5 George II to reach the property in question as assets applicable to the payment of debts. Regarding it in either light, if the defendant can show that the alienation was bona fide and for a valuable consideration and without notice, the *157suit must fail as it regards the lands under immediate consideration.

It is not claimed that there was actual fraud on the part of Simkins. It is alleged, however, that he cannot be regarded as a purchaser who has paid a valuable consideration before notice of the plaintiff’s equity.

On the question of notice, the conclusions of the Circuit Judge appear to conform to the evidence. There was certainly evidence in the case from which a conclusion of fact could be drawn as to whether Simkins had, at the time of purchasing, knowledge of the existence of plaintiff’s claim. Simkins was dead at the time of the trial, and direct proof that he had no such notice was not attainable. It does not appear that it was in the power of the defendants to produce additional proofs, and the question of notice was properly before the Circuit Judge as a question of fact to be determined from the testimony before him. There is no overbearing weight of evidence against his conclusions such as would justify this Court in setting them aside; and it must be concluded that Simkins purchased in ignorance of plaintiff’s claim as an outstanding demand against the assets of the estate.

The conclusion of the Circuit Judge on the question of notice is not prejudiced by the fact that he considered, as part of the evidence bearing on the question of notice, the facts that the claim of the plaintiff was not brought forward during the period of time when, in contemplation of law, all demands against a decedent are presented; that at the time of the sale there were personal assets in the hands of one of the executors adequate to discharging all the debts of the estate, including that due to the plaintiff; and that the dealings of the plaintiff with such executor were such as might give rise to a conclusion that such executor was holding assets appropriated to the payment of her demand at her request, and for her convenience, and at her risk. These facts may have affected the mind of Simkins in a manner bearing on the state of his knowledge, for the existence of which the conduct of the plaintiff might be in equity responsible. We are not required to say what force these circumstances should have had in the mind of the Circuit Judge, for the duty of drawing such inferences rested primarily on him, and it is only where he acts in the face of and against the force of overbearing testimony that this Court can properly disturb his conclusions. Such a case is not presented here.

*158If is denied that Simkins is to be considered as having paid a valuable consideration. The fact that a part of the payments that have been made upon the purchase money notes was made after notice of the plaintiff’s equity, is referred to as showing that Simkins was not in the position of a purchaser who had paid the consideration of the purchase before notice. The evidence establishes the fact that the consideration of the purchase was a cash payment of $5,000 and the giving of certain notes; that the cash payment ■was made and the notes given accordingly, and thereupon title "was conveyed to Simkins. This was a complete and executed consideration. The notes were a personal obligation of the purchaser, their subsequent payment or non-payment being immaterial as it regards the completeness of the consideration on which title was conveyed. It is not a case where the contract of purchase was inchoate by reason of the non-performance of some of the conditions or stipulations that entered into it.

In considering the equity of a purchaser for a valuable consideration without notice, the Court will not, where the purchase is bona fide, look into the amount or adequacy of the consideration paid. — Bassett vs. Noseworthy, 2 Lead. Cases Eq., 1; Bush vs. Bush, 3 Strob. Eq., 131. The equitable doctrine that affords protection to a purchaser is not based upon the idea that such protection is due to the extent only of the consideration paid, but rests on the idea that the character of an honest purchaser, who has parted with value, precludes his being subjected, as to his purchase, to equities by which his conscience is not affected.

It follows that the plaintiff had no equity as it regards the notes unpaid, as against Simkins or those who held his estate. The obligation arising on the notes was res inter alia as it regards the plaintiff, both legally and equitably. She might trace the notes so long as they remained assets of the estate indebted to her, and through the lawful holder of the notes reach satisfaction by compelling their payment; but in doing so she could not go beyond the rights of the holder of the note through whom she was compelled to work out satisfaction of her demand. As there was no lien on the purchased land to enforce the payment of the notes, the plaintiff can have no such lien. It follows that while the decree is correct in allowing the plaintiff to pursue whatever remedies may exist for the payment of the only note that remains due, yet it was erroneous in charging such payments upon the land specifically, or hold*159ing it as an equitable lien on the land. In this respect the decree should be modified. Subject to this modification, the decree is correct as it regards the Simkins tract.

The questions relating to the Payne tract were substantially the same as those that are presented in the case of the Simkins tract. The question of notice as a question of fact is the controlling one as it regards this tract. The conclusion of the Circuit Judge was adverse to the existence of notice. There is no clear and overbearing state of evidence affording ground for disturbing his conclusions in this respect.

It is unnecessary to consider the question of the effect of the clauses of the will directing the payment of debts, in creating a charge, generally, or in the case of lands devised to one made the executor under such will, for, whatever may be the nature of the plaintiff’s equity, the defendant would stand in the same position under the plea of purchaser for a valuable consideration and without notice. If a charge was made out under the terms of the will, it would' create an equity alone, and an equity no stronger than that arising under the statutes charging realty for debts of a decedent.

The decree should be modified in the manner already pointed out, and in all other respects affirmed.