Brown v. Ferrell

83 Ky. 417 | Ky. Ct. App. | 1885

JUDGE PBYOB

delivered the opinion of the court.

Section 24, article 1 of chapter 63, General Statutes, provides, '“that when any real estate shall be* conveyed, and the consideration, or any part thereof, .remains unpaid, the grantor shall not have a lien for* the same against bóna fide creditors and purchasers,, unless it is stated in the deed what part of the consideration remains unpaid.”

The conveyance in this case by William Ferrell to-his son John contains this provision: to have and to hold “unto said John Ferrell during life, and at. his death to his heirs by blood.”

At the time of the conveyance John, the son, had no children, but subsequently married, and has one child, an infant, who is a defendant to the action, and a party to this appeal.

The purpose of this proceeding by the father was. to subject the land sold the son to the payment of' the purchase money; and regarding the infant as. being vested with the title in remainder, both the vendee, John Ferrell, and his infant child, were-made defendants.

It is plain that the notes for which the land was-sold were executed for the purchase money, and although the recital in the deed acknowledges payment in full, no part of, the purchase money was, in. fact, paid. The parties to the conveyance supposed, that the recital in the notes that they were executed. for the land gave to the vendor a lien for the purchase money.

In order to retain a lien against bona fide creditors and purchasers, it must appear from the conveyance what part of the consideration remains', unpaid; but as between the parties to the instrument, the vendor and the vendee, the lien exists for* the purchase money whether mentioned in the deed or not, and, therefore, the vendor in this cáse had the right to subject the entire estate to the payment, of the purchase money. '\

The infant child had a vested interest in the land,, but still those in remainder occupied the position of purchasers as well as the life tenant, and held the-land subject to the vendor’s lien.

Section 10, article 1 of chapter 63, General Statutes, provides: “If any estate shall be given by deed or will to any person for his life, and after his death’ to his heirs, or the heirs of his body, or his issue or’ descendants, the same shall be construed to be an estate for life only in such person, and a remainder in fee-simple in his heirs, or the heirs of his body, or his issue or descendants.”

This conveyance, by reason of the statute, under which it must be construed, gives to John an estate for life, remainder to his heirs.

The child, who is now the remainderman, and who would take the estate in the event the father should die, being before the court when the judgment was rendered directing the land sold for* the purchase money, the purchaser at the decretal sale became vested with the absolute title.

Neither after-born children, nor the heirs of John, the grantee, can assert any “claim” after John’s death, because all who had any interest •either for life or in remainder were before the ■court when the judgment of sale was entered. To hold differently would preclude the vendor from enforcing his lien, or cause the judgment or proceedings to be opened by those who might possibly have an interest in the land if the life tenant .had never been divested of title.

The proceedings below were had in good faith, rand whether so or not, the court below having ■complete jurisdiction over the subject-matter, as well as all the parties in interest, the purchaser’s title is perfect, and the judgment below requiring .him to take the land must be affirmed.