59 P. 101 | Ariz. | 1899
On the fourteenth day of July, 1896, the appellant, A. E. Baker, sold and conveyed to S. J. Fleming and B. T. Tustin, by deed absolute, certain mining property situated in Yavapai County, receiving part of the purchase price thereof in cash and the written obligations of the said Fleming and Tustin for the residue. No express lien was reserved, however, for the unpaid portion of the purchase money. On or about the twentieth day of August, 1896, the Providence Gold Mining Company took a conveyance of said property from Fleming and Tustin, with full knowledge on its part of the existence of the said purchase-money indebtedness to Baker. Thereafter, in a suit brought by Baker, it was sought to establish and enforce a vendor’s lien against the property for the balance of the purchase money owing to him. From the judgment of the district court denying his right to such lien he has prosecuted this appeal.
The sole question presented for decision here is whether a grantor of real estate by absolute conveyance has an implied equitable lien thereon for the unpaid purchase money. If such a lien arises at all, it must, on principle, prevail alike against the grantee himself and all subsequent purchasers with notice. The doctrine of the English court of chancery, which recognizes and upholds such a lien, has been adopted in some of the states, rejected in some, and remains undecided or doubtful in others. There seems to have been no settled adjudication of the question in this territory,, and we therefore feel at liberty to determine it as one of first impression. A considerable diversity of opinion exists concerning the origin of the vendor’s lien. It has been accounted for as a trust,. as an equitable mortgage, as arising from natural equity, and as a contrivance of the chancellors to evade the unjust rule of the early common law by which land was free from the claims of simple contract-creditors. The grounds upon which the doctrine seems generally to have been rested in the earlier English cases were those of natural equity, a supposed intention of the parties, and a trust arising out of the unconscientiousness of the vendee’s holding the land without paying the price. In Ahrend v. Odiorne, 118 Mass. 261, Mr. Justice Gray, now of the supreme court of the United States, after an elaborate examination of the question, concluded that the foundation of the doctrine was that justice
Street, C. J., and Doan, J., concur.