able to his heirs named in the will, and unfavorable to the petitioner. Such intent was not equally within the knowledge of the witnesses and the deceased testator, it is true. But the witnesses belonged to the class of persons named by the statute as disqualified; and they appear to be within the reason of the rule of exclusion established by the statute, because they were testifying to statements of a deceased person made in their favor. There is no other means of showing what the testator did say, or of contradicting the witnesses. We are of opinion that there was no error in the ruling of the court in excluding the statements of the witnesses named above. We see no legitimate objection to the competency of the other witnesses called by the appellants, or to their testimony, because of irrelevancy or immateriality, or otherwise.

For the reasons stated, the decree of the court below is reversed, with costs, and that court is directed to grant a new trial.

MINER, J., and STREET, District Judge, concur.

JOHN FEATHERSTONE, RESPONDENT, V. S. P. EMERSON ET AL., APPELLANTS.

MORTGAGES SUBROGATION-WHEN ALLOWED.

1. Page borrowed from Featherstone $2,000, which was secured by mortgage upon land which was afterwards sold to Brown and Emerson for $5,000. Brown and Emerson paid $1,000 cash, and agreed to pay the $2,000 mortgage thereon, and gave a purchase-money mortgage for $2,000 back on the property to Page. Emerson afterwards paid $1,200 on the last mortgage, and Brown, with the tacit agreement with Page that it should be a part of the old obligation, gave a new mortgage on his undivided half of the land for $800, which was given as a purchase-money mortgage, and Page released the $2.000 mortgage. Emerson had notice of the transaction. The $800 mortgage was assigned to Featherstone, the plaintiff, who held both mortgages. After Featherstone had foreclosed the $800 mortgage, and obtained title to the undivided half of the land, Emerson paid $1,100, and tendered plaintiff the balance due on the $2,000 mortgage that Brown and Emerson had jointly assumed, provided that plaintiff would assign to Emerson the $2,000 mortgage. Plaintiff refused the tender or to make the assignment, but offered to assign the $2,000 and the $800 mortgage to Emerson, upon payment of the full amount due on both mortgages, which Emerson refused to do. Held, that Emerson was surety for Brown as to at least one-half of the two mortgages given and assumed by both; that the equities of Featherstone, as assignee of the $800 purchasemoney mortgage given by Brown to Page, were superior to Emerson's right; that Emerson was not entitled to be subrogated, without having paid or offered to pay the $800 mortgage; that, as between Brown and Emerson, both were bound to contribute towards the discharge of the common joint burden; that, when purchase money is the consideration of the instrument, it will continue to be the consideration of any other instrument, if expressed therein, executed

by agreement in substitution of the old one, unless superior equities intervene, which have not in this case.

2. The release of the $2,000 mortgage, which Brown and Emerson were both obligated to pay, on payment of $1,200 by Emerson, and the giving of the $800 purchase-money mortgage on one-half of the land by Brown to Mrs. Page, upon such release, coupled with the tacit agreement that such new $800 mortgage should be a part of the former obligation, and the express agreement that it should be a purchase-money mortgage, with notice to Emerson, was for Emerson's benefit to the amount of $800, and should not be used as a weapon in the hands of Emerson to defeat Mrs. Page, nor her assignee, who succeeds to her rights in the mortgage, from recovering the purchase price of the land sold, without first paying or offering to pay the same.

3. The property was the primary fund to meet the obligation of both, and Mrs. Page held the mortgage as a purchasemoney mortgage, and transferred her right to the plaintiff, whose equities are superior to those of Emerson or Brown, until tender or payment of the entire debt arising from the purchase.

(No. 687. Decided July 22, 1896.)

Appeal from the district court, Third judicial district, Territory of Utah. Hon. S. A. Merritt, Judge.

Action by John Featherstone against S. P. Emerson and others. From a judgment for plaintiff, defendant Emerson appeals. Affirmed. The facts are set out in the opinion of the Justices.

Breeze & Burris and Moyle, Zane & Costigan, for appellant.

As between purchasers in common of an estate bound by a joint lien or mortgage, each is bound to contribute only his proportion towards the discharge of the common burden and as to the remainder is to be considered simply as a surety; and if one of them is obliged to pay the

whole amount to protect his interests, he will be subrogated to the rights of the owner of the lien or of the mortgage, even without an express assignment of the lien or mortgage, and will be protected as far as equity can protect him. Subrogation depends not upon contract but upon natural justice, and "equality is equity." Gearhardt v. Jordan, 11 Penn. St. Rep. 325; Aiken v. Gale, 37 N. H. 501; Hubbard v. Mill Dam Co., 20 Vt. 402; Simpson v. Gardiner, 97 Ill. 237; Laylin v. Knox, 41 Mich. 40; Cornell v. Prescott, 2 Barbour 16, Ellsworth v. Lockwood, 42 N. Y. 89-97; Fisher v. Dillion, 62 Ill. 379; Young v. Morgan, 89 Ill. 199; Matthews v. Aiken, 1 Comstock (N. Y.) 595; Williams v. Perry, 20 Ind. 437; Duncan v. Drury, 9 Penn. St. 332; Champlin v. Williams, 9 Penn. St. 341; 3 Pomeroy's Equity Jurisprudence (1st Ed), secs. 1211, 1212, 1220, 1922, and notes; 2 Brandt on Suretyship (2d Ed.), § 302, § 309, § 315; Harris on Subrogation, secs. 103 and 143.

"The fact that the mortgage which the vendor takes at the time of the conveyance is expressed to be for the purchase money of the land is none the less a waiver of his vendor's lien." Avery v. Clark, 87 Cal. 619; Baum v. Grigsby, 21 Cal. 173; Camden v. Vail, 23 Cal. 633; Gaylord v. Knapp, 15 Hun. (N. Y.) 87; Pease v. Kelly, 3 Oregon 417; Rhynier v. Frank, 105 Ill. 326; Pomeroy's Equity Jurisprudence (2d Ed.) § 1252 and cases collected in note p. 1928.

Even if the Pages had not waived their vendor's lien by taking the $2,000 and the $800 mortgages and by canceling the $2,000 mortgage, that lien existed only for them and was lost by the assignment of the note and mortgage to the plaintiff Featherstone; for on principle and by the great weight of authority a vendor's lien is a strictly personal right, and is therefore not assignable. First Nat. Bk. v. Salem Flour Mills Co., 39 Fed. Rep. 89;

Hammond v. Peyton, 34 Minn. 529; Keith v. Horner, 32 Ill. 524; Bonnell v. Holt, 89 Ill. 71; Gruhn v. Richardson, 128 Ill. 178; White v. Williams, 1 Paige (N. Y.) 502; Jackman V. Hallock, 1 Ohio 318; Baum V. Grigsby, 21 Cal. 173; Avery v. Clark, 87 Cal. 619; 2 Jones on Liens § 1092 and cases collected in notes.

Featherstone, the plaintiff here, was not the vendor, and of course cannot avail himself of the equities embraced in a vendor's lien.

Even if a vendor's lien were assignable, the assignment of the $800 note and mortgage to the plaintiff would not and did not assign the lien to him.

The assignment (p. 50 of the abstract) of the note and mortgage of $800, does not purport to assign the vendor's lien, and there is no evidence or finding that it does do so. We submit that on the law it does not do so. White v. Williams, 1 Paige (N. Y.) 502; Jackman v. Hallock, 1 Ohio Rep. 318; Wellborn v. Williams, 9 Ga. 86.

The doctrine of vendor's lien is indefensible and should not be recognized and enforced where it has never been adopted. Ahrend v. Odiorne, 118 Mass. 261; Philbrook v. Delano, 29 Me. 410; Kauffelt v. Bown, 7 S. & R. (Pa.) 64; Hammond v. Peyton, 34 Minn. 529; Iliesler v. Green, 48 Pa. St. 96; Edmunster v. Higgins, 6 Neb. 265. We submit the doctrine has not been and should not be adopted in Utah.

The contention of the plaintiff Featherstone that the $800 mortgage of October 26, 1891, is superior in equity to the $2,000 mortgage of Dec. 17, 1890, or at least to the rights of Emerson therein acquired by subrogation, because it is expressed to be for the unpaid purchase money, and therefore is a purchase-money mortgage or is in the nature of a vendor's lien is unsupported by the law; for a purchase-money mortgage given to the vendor