116 Ill. 113 | Ill. | 1886
delivered the opinion of the Court:
The first error assigned is, that the court erred in overruling the demurrer to the amended bill. This raises the same questions, practically, as the fourth assignment of error, and will be considered in connection therewith.
The second error assigned is, that the circuit court erred in rendering a money decree against Frederick and Alsina Beal. A sufficient answer to this objection is, that they are not before this court, and can not assign errors for themselves; and even if it be conceded that the decree is erroneous in the respect urged, it is in no way prejudicial to the appellant, and he can not assign for error matters appearing in the record relating in nowise to himself, but to other defendants, and which do not affect his rights. Fonville v. Sausser, 73 Ill. 451; Walker v. Abt, 83 id. 226; Kennedy v. Kennedy, 66 id. 190; Greenman v. Harvey, 53 id. 386; Havighorst v. Lindberg, 67 id. 463; Morse v. Smith, 83 id. 396; Smith v. Hickman, 68 id. 314.
The third assignment of error is, that the circuit court had no jurisdiction of the person of Thomas Beal. As we have seen, the summons was returned not served as to Thomas Beal, but it is recited in the record that the defendants interposed a demurrer to the original bill, which was sustained, and leave given complainants to amend. It is also recited that the defendants, by their attorney, came, etc., upon consideration of the demurrer. This demurrer, as already said, is not set out in the record, so that we can see whether all the defendants joined in it or not. The record is brought into the Appellate Court and this court by the appellant, Thomas Beal, and he has seen fit to rest the ease upon the recitals in the record of the circuit court. No suggestion of a diminution of the record is made, or an attempt to supply the demurrer, which, if produced, would at once show whether he joined in it or not. We think that where the record of the circuit court contains recitals that certain papers were filed by the-defendants, and one of the defendants brings the case to this court without incorporating in the record the papers so purporting by the recitals to have been filed by him, the presumption should be indulged that the paper, if produced, would sustain the recitals in the record. There is no hardship in this rule. We therefore hold that the recitals in this record are sufficient to show an appearance of all the defendants.
The fourth and last error assigned is, that the bill failed to show such a state of facts as entitled complainants to a decree for a vendor’s lien. This presents the same question as the first assignment, and is the real matter of controversy in the case.
It is contended by counsel for appellant, that when a vendor of real estate takes collateral and independent security for the purchase money, he thereby releases or waives all right to a vendor’s lien, and numerous authorities are cited to support the position. This principle is undoubtedly correct, and if it is applicable here, is conclusive of the case. But does it apply to the facts of this case ? What collateral or independent security did the vendors take ? It is claimed that they conveyed, or caused to be conveyed, to Alsina and Frederick Beal, the land against w'hich a vendor’s lien is now claimed, and took the promise of Thomas Beal to convey other property to them in payment therefor, and that amounted to a collateral security, or a security independent of the land conveyed, and, therefore, a waiver of their vendor’s lien. This is a misapprehension of the fact. The sale was made to Thomas Beal for a certain consideration, $1000 of which was to be paid by the conveyance of the lots in the village of Wyoming. When the deed was made, it was to his two sons, by his direction and for his convenience, but delivered to him, on liis obligation to pay for the same according to the contract, by delivering the stock of goods and conveying said village lots. The sons took the title simply in trust for then-father, and as mere volunteers, having no pecuniary or personal interest therein.
It is said by appellant’s counsel, that the case of Andrus v. Coleman, 82 Ill. 26, is a parallel case with this. We think there is a marked distinction between this case and that one, as well as all other cases cited by appellant’s counsel. In that case, Andrus conveyed to Martha J. Coleman the land and took her husband’s deed of conveyance for certain lands, in Kansas, and his note for the balance of the purchase price of the land sold the wife. The court, in passing upon that case, say: “We consider that appellant, having conveyed to appellee, is estopped from questioning her title. He did this knowingly and voluntarily, and it is too late now to say that the title, in fact, belonged to her husband, with whom he .contracted. This is ample recognition of his knowledge of the husband being the agent for the wife in the transaction, as she swears he was; and, therefore, when he accepted his covenant of warranty for the Kansas lands, and his individual note for the residue of the purchase money, he knew that he was relying on the obligation of a person other than his grantee for the payment of the purchase money. ” In this case, the sale was made to Thomas Beal by appellees. The relation of purchaser and seller existed between them, and them alone. True, the deed was made to the sons of Thomas, but it is not claimed or pretended that they were purchasers in fact, or claimed to have any interest in the land or participated in the transaction in any way, except to receive the title in trust for their father. Nor is it shown or pretended that the vendors (appellees) claimed that any person other than Thomas Beal became liable to them for any portion of the purchase price of the land. It will be conceded that as between Thomas Beal and his sons, he was the equitable owner of the land conveyed by Hurlbut.
It is also contended that appellees can not enforce a vend- or’s lien, because the legal title was in Hurlbut, and the conveyance made from him to the grantees in the deed. Hurlbut was not the vendor or seller. As we have seen, appellees were the owners, in fact, of the land,—were, in fact, the vendors to Thomas Beal, and the conveyance by Hurlbut was made by him on their order and request, and to prevent the necessity of a conveyance to them, and from them to appellant or his sons. It is a familiar rule that equity disregards mere forms, and looks to the substance in the application of equitable principles, and this is especially so in the enforcement of vendor’s liens.
In Carey v. Boyles et al. 53 Wis. 574, it was held, where A purchased a tract of land for B, taking the deed to B, who agreed to repay A the purchase price, that, in equity, A and B stood in the relation of vendor and purchaser, and the former had a vendor’s lien for the unpaid purchase money. In this ease, if the real parties chose to consummate the trade by taking a deed directly from Hurlbut, and to sons of the purchaser, it should not follow that the equitable right to enforce the vendor’s lien is thereby lost. The principle that will govern courts of equity in the enforcement of vendors’ liens, is the implied agreement held to exist between the •vendor and vendee that the former shall hold a lien on the lands sold, for the payment of the purchase price, on the ground that a person who has the estate of another ought not, in conscience, as between them, keep it and not pay the purchase money. (2 Story’s Eq. Jur. secs. 1219-1224.) Usually lien is given to the grantor in the deed who is the vendor as well, but, as we have said, the substance is to be regarded, and the useless form of a conveyance by Hurlbut to appellees, that they might convey to appellant, will not be necessary to preserve, in equity, the right to enforce this lien. If Hurlbut had conveyed to appellees, and they to appellant, under this contract, and appellant, even for consideration, had conveyed to his sons, with notice, and they to Johnson, with notice of appellees’ rights, can it be questioned that the right to enforce the lien would exist ? Here appellees were the equitable owners of the land, controlled the legal title, caused the ■conveyance to be made, and are entitled to the purchase money, and we can conceive of no principle of equity that will defeat their right to enforce a lien therefor against this land in the hands of mere volunteers, in whose hands the land, for all equitable purposes and considerations, must be treated as belonging to Thomas Beal. Neither appellant nor appellees are strangers or third parties to this transaction. Loomis et al. v. Davenport and St. Paul Railroad Co. 3 McCrary, U. S. Ct. Court, 489; Austin v. Underwood, 37 Ill. 438 ; Magee v. Magee, 51 id. 500; Carey v. Boyles, supra.
We are of opinion that a vendor’s lien existed in favor of appellees for the price of the lots agreed to be conveyed by appellant as part, of the consideration for the sale of the land to him, and that there has been no waiver of it. We think the conclusion reached is fully sustained by authority, as well as the reason of the rule.
Finding no error in this record, the judgment of the Appellate Court will be affirmed.
Judgment affirmed.
The record in this cause was originally assigned to Mr. justice Dickey, and no opinion having been prepared by him, it was re-assigned in November, 1885.
