After the conveyance has been executed, the purchaser may (n) discharge, out of any purchase-money which remains unpaid, (although secured,) any incumbrances which either have been created by the vendor himself, or are covered by his covenants for title; but not incumbrances paramount to his title, and not covered by his covenants (o): and this right, it is conceived, would not, where security has been given for the purchase-money, prevail, as against an assignee, for valuable consideration and without notice, and who, previously to taking the assignment, had ascertained from the purchaser the existence of the debt; otherwise, no one could safely take a transfer of a mortgage by a purchaser to a vendor for securing part of the purchase-money: the case seems to be within the principle of one where it was decided, that, where a tenant for life with power of sale had sold an estate, and covenanted that it was free from incumbrances, and the money had been paid to the trustees of the settlement and invested, the purchaser, on discovering the existence of incumbrances, had no claim upon the vendor's life-interest in the money as against an annuitant, to whom, for valuable consideration, and without notice of the fraud committed by the vendor, the trustees of the stock had, at the vendor's request, given an irrevocable power of attorney to receive the dividends (p): and Lord Thurlow, on appeal, intimated an opinion, (which however was extra-judicial,) that (irrespectively of the claim of the annuitant) the purchaser could not have followed the money when deposited with the trustees; the case is cited by Sir E. Sugden as an authority for the proposition that, notwithstanding incumbrances have been fraudulently concealed, "the purchaser has no hen on the purchase-money after it is appropriated by the vendor" (q).

Whether he can, after conveyance, retain incumbrances out of unpaid purchase-money

D'Este, 2 Y. & C. C. C. 581; and Murray v. Palmer, 2 Sch. & Lef. 490; but see, contra, the judgment, ibid. 489.

(k) See 2 Y. & C. C. C. 581.

(l) See Jac. 165.

(m) Donovan v. Fricker, Jac. 165. (n) See Serjeant Maynard's case, Freem. Ch. R. 1.

(o) Thomas v. Powell, 2 Cox, 394.