7 Watts 144 | Pa. | 1838
The opinion of the Court was delivered by
It is a well settled doctrine of a court of equity, that the vendor of land has a lien for the amount of purchase money, not only against the vend®*- himself and his heirs, and others privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid. This doctrine, it is said, was taken from the civil law; and the principle upon which the courts of equity have proceeded in establishing this lien in the nature of a trust is, that a person having gotten the estate of another ought not in conscience, as between them, to be allowed to keep it, and not to pay the consideration money. A third person, having full knowledge that the estate has been so obtained, ought not to be permitted to keep it without making such payment; for it attaches to him, also, as a matter of conscience and duty. It has been suggested, as is said in New v. Brown, 6 Ves. 59, and Chapman v. Tanner, 1 Vern. Rep. 267, that the origin of this lien of the vendor might be attributed to the tacit consent or implied agreement of the parties. This is doubted by Justice Story, in his Commentaries, 465. But whatever may have been the origin of the doctrine, whether from the cause just stated, or because it is a natural equity, it is now the uncontested doctrine of courts of equity. But in Pennsylvania it has not been held to prevail. Kaufelt v. Bower, 7 Serg. & Rawle 64. Where an absolute conveyance is made of land, a receipt given for the purchase money, and the possession given to the vendee, part of the purchase money being unpaid, and the bond of the vendee, or a surety, taken for the residue thereof, the vendor has not a lien for said residue of the purchase money against judgment creditors of the vender, whose judgments are subsequent to the conveyance, though they had notice of the balance of the purchase money due. This is undoubtedly in opposition to the rule established in chancery. There, generally speaking, it is held, that the lien of the vendor exists; and the burthen of proof is on the purchaser to establish that, in the particular case, it has been waived by the consent of the parties. if, under all the circumstances, the intention remains doubtful, the lien attaches. Taking a security, as a bond, bill or note, has been no more than a presumption of an intention to waive the lien under some circumstances, and not as conclusive of the waiver. Taking bills of exchange drawn on and accepted by a third person,
Judgment affirmed.