51 Miss. 869 | Miss. | 1876
delivered the opinion of the court:
The question to be decided in this case is, whether the obligee of a bond for title to land, who has paid part of the purchase money and owes a part, and bargains the land to another, assigning him the bond for title, the assignee stipulating to pay the obligor in the bond the balance of purchase money due him, and executing his note to the obligee of the bond, has a vendor’s lien on the land for the payment of the note after his assignee has paid the purchase money due to the obligor in the bond for title, and received a deed for the land ?
There is no precedent for this case among the adjudications in this state, but the principle which must govern it is well settled here and elsewhere, and the precise question has been decided in Kentucky. Richardson v. Bowman, 40 Miss., 782; Russell and wife v. Watt et al., 41 id., 602; Warren v. Fenn, 28 Barb., 333; Stewart v. Hutton, 3 J. J. Marsh., 178; Wiseman v. Reid, 7 id., 249; Ligon v. Alexander, id., 288.
In the last mentioned case, the precise point was decided. The declaration by the court that “before an assignor can have such a lien, he must show himself to have been the beneficial owner of the property by payment of the purchase money to his vendor,” had reference to the practical enforcement of his claim, it being true that his claim would be subordinate to and not enforceable against the paramount claim of his vendor in case of conflict with it. The expression quoted occurs after an express announcement of the existence of a lien in favor of the assignor of a bond for title, and is used as an answer to the objection “ that this extension of the lien against a remote assignee is calculated to produce a war of irreconcilable'and conflicting liens.” The payment by the assignor of the title bond of the purchase money due his vendor is not necessary to the existence of the lien in his favor as against his assignee, but does affect the value of his claim as being subordinate to the claim of the first vendor. In the case at bar, the holder of the bond for title had paid some part of the purchase money, and his assignee was to pay the balance, and did so.
In Russell v. Watt, cited above, Russell had neither legal nor equitable claim on the land. The title was in Booth, who permitted Russell and wife to live on the lot as mere occupants, and he conveyed at the request of Russell and wife to one to whom they bargained the land by parol, and the vendee executed his note to Russell and wife, and it was held that a lien arose in favor of the payment of the note. A fortiori, should a lien be declared to exist in favor of one who held the written obligation of him in whom was the legal title to convey it, and who has assigned that obligation to one to whom he bargained the land. In such case, the assignee of the title bond, having obtained a deed from the obligor, vesting in him the legal title, holds it as a trustee for his vendor, the assignor of the bond for title.
The bill seems to have been carelessly drawn, but it is substantially good. It shows that complainant held a “ bond for title,” and had paid part of the purchase money, and owed a balance, and sold the land to Anderson, who executed his note to complainant for $450, and agreed to pay complainant’s vendor the balance of purchase money he owed him, and that Anderson had paid this balance and got a conveyance of title from said vendor, and had sold to one Stevens, who knew of complainant’s unpaid claim for purchase money, and that Stevens had sold to one Henderson, who owes the purchase money which is sought to be applied to complainant’s demand.
