43 So. 301 | Miss. | 1907
delivered the opinion of the court.
In the case of Griffin v. Byrd, 74 Miss., 32, 19 South., 717, in speaking of the cases in which a lien in favor of the vendor of real estate is raised, the court says: “The.rule of law on this subject is that the vendor’s lien is only raised when there is a fixed sum of money due from the vendee to the vendor as purchase money for the land conveyed” — citing Peters v. Tunnell, 43 Minn., 473, 45 N. W., 867, 19 Am. St. Rep., 252; 28 Am. & Eng. Ency., p. 166, note 2, and cases there cited.
The bill alleges that appellants failed to erect the stone plant, as it was understood that they should do, and because of their default in this, and failure to pay the balance of the purchase money due under the deed, they ask that a lien be established on the property conveyed for the $2,500 unpaid purchase money. We think they clearly have this right. Appellants cannot defeat the appellees in the collection of the balance of their purchase money by failing to establish a stone plant, out of which to create a fund to pay the balance due as purchase money for this property. There is nothing in this contract-
It is true that some allegations in complainants’ bill conflict with the exhibits filed, and it is also true that this court has held that where this is the case the exhibits control; but, after eliminating those parts of the bill that conflict with the exhibits, the record still shows that there was $2,500 due as purchase money, and that it was unpaid. This being the case, a good case is made out by the remainder of the bill and exhibits. The contract specifies no particular time when the appellees should erect the plant; but it was certainly contemplated by the parties that the plant should be erected and put in operation in some reasonable time, and since the bill alleges a total failure to erect the plant, and it is demurred to, no question is raised in the record as to whether or not a reasonable time has passed. Hall v. Eastman & Gardner Lumber Co., 89 Miss., 588, 43 South., 2.
Affirmed and remanded, with leave to answer in sixty days after mandate is filed.