in favor of the plaintiff; and the first and most material question on this appeal is, whether the covenant creates a charge or lien, in the sense of a court of equity, that can be enforced in the manner contemplated by the plaintiff's bill? It is objected that the covenant creates only a personal obligation on the defendant, and that, consequently, there is no jurisdiction in a court of equity to take cognizance of the case. If this were a mere personal covenant, and nothing more, the objection just stated would certainly be well founded. But that is not our conclusion as to the nature of the covenant. That the covenant does create a personal obligation on the defendant is doubtless true, and one that could be sued on at law; but it does not necessarily follow from that being so, that there may not be also an equitable lien or charge created at the same time. The covenant does not, as may be observed, stipulate in express terms that the land shall be sold and the proceeds of sale applied to the discharge of this particular debt. But we think that is the fair and reasonable implication from the terms employed. In a case like the present, the question whether there has been a charge created depends in a great measure upon the intention of the contracting parties; and here we think it manifest, as well from the language of the covenant itself as from the circumstances leading to it and under which it was made, that the parties contemplated the sale of the farm, and the proceeds of sale as the fund from which the debt was to be paid. In other words, the farm was to be sold, and a sufficient amount of the purchase-money specifically appropriated to the payment of the debt due the plaintiff. If such be the fair construction of the agreement, it created a charge on the land as a security to the plaintiff; for, as was said by Chancellor Sugden, in Rolleston v. Morton, 1 Dr. & W., 195, if a man has power to charge his lands, and agrees to charge them, in equity he has actually charged them; and a court of equity will execute the charge. Here, as we have seen, there are no express words creating the lien or charge upon the land; but there is no doubt of the proposition, that a charge may be created by fair and reasonable implication as well as where express words of trust or charge are employed in the covenant or agreement of the parties. Perry on Trusts, sec. 122, and authorities there cited; and 2 Story's Eq. Jur., sec. 1246. This case in principle does not differ from that of Legard v. Hodges, 1 Ves., Jr., 477, and same case on rehearing, 4 Bro. C. C. 421. There, a party having obligated himself to pay a certain sum for a particular purpose, as means of raising that sum, covenanted with trustees that he would set apart and pay to such trustees onethird part of the annual profits of his particular estates; and failing to make the application of the profits according to the covenant, and having appropriated them to other purposes, the trustees filed their bill to have a trust declared as to the third of the profits of the land; and although it was there contended, as it has been contended here, that there was no lien upon the land, but a mere personal covenant only, it was held, that the covenant created in equity a lien on the land against the covenantor, and those claiming under him with notice. And in deciding the case, the Lord Chancellor said that there was a maxim which he took to be universal, and that was, wherever persons agreed concerning any particular subject, that in a court of equity, as against the party himself, and any claiming under him voluntarily or with notice, raised a trust. To the same effect is the doctrine fully stated by Mr. Justice Story, Eq. Juris., sec. 1231. He there says: "Indeed, there is generally no difficulty in equity in establishing a lien, not only on real estate but on personal property or on money in the hands of a third person, wherever that is matter of agreement, at least against the party himself, and third persons, who are volunteers, or have notice. For it is a general principle in equity, that, as against the party himself, and any claiming under him, voluntarily, or with notice, such an agreement raises a trust." See also Power v. Bailey, 1 Ball & Beat. 52. And such being the well established principle upon the subject, the agreement in this case must be taken as having created a charge upon the land, and raised a trust in respect thereto, as security for the payment of the plaintiff's debt; and hence it is the right of the latter, upon failure of the defendant to perform the trust, to have that trust specifically executed by a decree of a court of equity. The case of Berrington v. Evans, 3 Y. & Coll. 384, relied on by the defendant is not an authority to affect this case. There the covenant was that if the covenantor did not pay certain debts by a given day, he engaged to sell so much of his estates as might be necessary for that purpose. The learned Baron of the Exchequer, who decided the case, said that it did not appear to him that the covenant was anything more than a personal undertaking; but if it were, the case of Williams v. Lucas, 1 P. Wms. 430, n., shewed that the words of it were too general to create a specific lien upon the lands of the covenantor. This latter reason was all sufficient for the case, for it was expressly decided in the case referred to in P. Wms., and also in the case of Freemoult v. Dedire, 1 P. Wms. 429, that a covenant to mortgage or settle lands to secure sums of money, without mentioning or referring to any certain lands, was not sufficient to create any specific. lien; and as the covenant in the case of Berrington v. Evans, according to the construction of the learned judge, referred to no particular lands or estates, it created no specific lien, and hence it could be nothing more than a mere personal undertaking. That case, therefore, can have no application to this, even conceding it to have been well decided; a proposition in regard to which we express no opin ion, in view of what was held in the case of Wellesley v. Wellesley, 4 My. & Cr. 561. See Mornington v. Keane, 2 De G. & J. 293.10 It is thought that, as the covenant fails to fix any definite time for the payment of the money, or to designate any time within. which the farm should be sold, or how to be sold, the defendant was left free to exercise his discretion as to the time and mode of sale, and that a court of equity cannot enforce the sale to be made, as by so doing the defendant would be deprived of a discretionary right of which he was not deprived by the agreement. But, in reply to this suggestion, it is sufficient to say, that there is no such want of certainty and definiteness in the agreement as to prevent its execution by the court; and as it is alleged and proved that the defendant, although repeatedly requested, has utterly neg-, lected and refused to sell the farm, but retains it for his own profit,' and as a reasonable time had elapsed before filing the bill, a court of equity under such circumstances, will not permit him, under the pretense of exercising a discretion as to the time and manner of sale, to evade the performance of his contract. Wellesley v. Wellesley, 4 My. & Cr. 579. The money agreed to be paid the plaintiff out of the proceeds of sale of the farm became due and payable after the lapse of a reasonable time, within which the farm could have been fairly sold, and the proceeds of sale realized by the defendant on the usual and ordinary terms of sale; Farrel v. Bean, 10 Md. 233; Triebert v. Burgess, 11 Md. 452; and this time having expired, and the defendant failing to show any good reason why he has not performed his contract, the land has become liable to be proceeded against for the enforcement of the charge on it. Another objection to the decree of the court below is, that, instead of appointing a trustee to make the sale, it should have required the defendant, himself, to make the sale in execution of the contract. This objection we do not regard as well founded. The defendant, by his own neglect or refusal to perform his contract, has occasioned the present application for relief, and as the court proceeds with the matter upon the footing of a trust, it is quite competent to it, in order to make its relief effectual, to appoint an officer of its own to execute its decree. The defendant has been allowed ample time for the sale of the farm or the payment of the money due the plaintiff; and if he does not desire the farm to be sold, he may still avoid that alternative by payment of the money without further delay. 10 That the agreement must specify the property seems uncontrovertible. Langley v. Vaughn, 10 Heisk. (Tenn.) 553. But in the case of fungible property it may be sufficient specification to name a quantity to be taken from a larger mass. Thus in Dunman v. Coleman, 59 Tex. 199, an agreement charging 1,000 cattle in a herd of a larger number was enforced. So in Payne v. Wilson, 74 N. Y. 348, an agreement to mortgage one of several houses was enforced. Cf. Williston, Sales, § 159. The decree appealed from will be affirmed, and the cause remanded that the decree may be executed. Decree affirmed, and cause remanded.11 VANIMAN v. GARDNER APPELLATE COURT OF ILLINOIS, 1901. On April 11, 1895, Anthony Roberts and his wife entered into the following written agreement with their son, Moss Roberts: "Agreement between Anthony Roberts and Sarah J., his wife, of first part, and Moss Roberts, their son, second part, Witnesseth, that said Anthony Roberts is the owner of the N. W. 14, section 24, township No. 12, range No. 6, west of the 3rd P. M., in Macoupin county, Illinois, on which all of said parties reside and occupy as a homestead; and, whereas, it is desirable that a new house shall be erected on said tract of land for the comfort and use of all said parties so long as they shall live upon said tract of land. It is therefore agreed by the said parties that said Moss Roberts shall erect on said premises a house which shall be convenient and suitable for the use of said parties, including the family of Moss Roberts. That Moss Roberts shall have the right to pull down the old house now on said premises and use the material thereon fit to be used in building the new house, and said new house shall be built and completed within the next ninety days after the date of this agreement. And in consideration of the said building, the said parties of the first part agree that in case they shall sell the said tract of land, then there shall be due and payable to said Moss Roberts out of the money arising from such sale the sum of $500, together with interest thereon, from the time of the completion of said house until paid, at the rate of six per cent. per annum, and in case of the death of the said Anthony Roberts leaving no will by virtue of which said Moss Roberts shall become devisee and owner of said tract of land, then and in that case, there shall be paid to said Moss Roberts, out of the estate of said Anthony Roberts, the said sum of $500, together with six per cent. interest thereon from the completion of said house until paid. (Signed) ANTHONY ROBERTS, SARAH J. ROBERTS, Moss ROBERTS." (Seal) (Seal) (Seal) 11 Brown v. Brown, 103 Ind. 23, and Blackburn v. Tweedie, 60 Mo. 505, are substantially like the principal case, except that possession of the land was given to the creditor to be retained until the land was sold, and it was held that an equitable mortgage was created. The instrument was filed for record and recorded in the recorder's office of Macoupin county, July 12, 1895. The house was built by Moss Roberts with money obtained from a bank at Virden, Illinois, on notes executed by him and George Vaniman as security. The written agreement was delivered to Vaniman and afterward indorsed as follows: "I assign the benefit of the within contract to George Vaniman as security to him for signing notes. (Signed) Moss ROBERTS." In 1898 Anthony Roberts and wife conveyed the land to Martha J. Roberts, wife of Moss Roberts, who on August 18, 1900, executed note and mortgage on the land to Alva L. Gardner, to secure an indebtedness of $500, due ten days after date. Gardner filed a bill to foreclose. Appellants, the administrators of George Vaniman, who were made defendants, together with others, answered and filed a cross-bill, in which they set up that there was a lien in favor of the deceased, by virtue of the above quoted agreement, and its assignment, and a payment by them, as administrators of Geo. Vaniman, of the notes on which he was surety for Moss Roberts. The court sustained a demurrer to the cross-bill, holding that appellants had no lien on the land, and rendered a foreclosure decree in favor 'of Gardner. Mr. PRESIDING JUSTICE HARKER delivered the opinion of the court. It is contended by appellant, first that under the written agreement of April 11, 1895, an equitable lien or mortgage was given Moss Roberts upon the land in question, whereby equity will enforce the payment of the $500 specified in the agreement, as a first lien upon the land; second, that appellants are subrogated to all rights of Moss Roberts under the agreement by virtue of his assignment thereof to George Vaniman. While as a general rule, any written contract entered into for the purpose of pledging property or some interest therein as security for a debt, which is informal or insufficient as a common law or statutory mortgage, but which shows that it was the intention of the parties that it should operate as a charge upon the property, will constitute an equitable mortgage and may be enforced as such in a court of equity, yet a mere promise to pay out of the proceeds of the sale of the property is not sufficient to create an equitable mortgage upon the property itself. "The intention must be to create a lien upon the property, as distinguished from an agreement to apply the proceeds of a sale of it to the payment of a debt." Jones on Liens, sec. 32; Gibson v. Decius, 82 Ill. 304; Hamilton v. Downer, 46 Ill. App. 541. We are unable to see in the written contract involved in this case an intention on the part of Anthony Roberts to create a lien or |