55 Ark. 542 | Ark. | 1892
The appellant, by absolute deed acknowledging the receipt of the purchase money, conveyed to the appellee, Lewis W. Chapman, certain lands, and took from him a mortgage upon the same lands, conditioned that, in ■consideration of the conveyance, he would support the appellant and her husband during their lives, or in default would pay her $2000 as the purchase price, in annual installments of $200, with interest at the rate of 10 per cent, per annum. The appellee, Lewis W. Chapman, failed to support the appellant and her husband. The appellee, J. H. Hicks, as sheriff of Lonoke county, levied an attachment upon the lands as the property of said Lewis Chapman, to satisfy a debt of his to M. & J. Rumby, who obtained a judgment therefor and an order condemning the lands to sale. The sheriff was proceeding to execute the order of sale, when the appellant filed her complaint in equity to enjoin the sale and to assert a vendor’s lien upon the lands. M. & J. Rumby were made defendants on their motion, answered the complaint and set up their attachment and judgment, and claimed a prior right to have their debt satisfied out of the lands.
The acknowledgment of the mortgage was defective, and though it was recorded prior to the attachment, it was not. entitled to record and constituted no lien upon the lands-therein conveyed, as against third parties. Main v. Alexander, 9 Ark., 112; Jacoway v. Gault, 20 Ark., 190; Hannah v. Carrington, 18 Ark., 105.
In the absence of an express waiver of a vendor’s equitable lien for unpaid purchase money of land, or circumstances which show that it was his intention to waive it, the lien exists. “ If under all the circumstances it remains in doubt, then the lien attaches.” Generally, the acceptance of security other than the obligation of the vendee is evidence of intention to waive the vendor’s lien and rely upon the other security. But this is only prima facie evidence of waiver. Each case must be determined upon its particular citcumstances. Where the lien is intentionally displaced or waived by consent of the parties, fairly given and obtained* it ceases to have existence. Richardson v. Green, 46 Ark., 270; Harris v. Hanks, 25 Ark., 510; Stroud v. Pace, 35, Ark., 103; Mackreth v. Symmons, White & Tudor’s Leading Cases in Eq., vol. I., pt. 1, p. 447; Gilman v. Brown, 1 Mason, 192.
Had the mortgage in this case been valid, there would be strong, if not conclusive, evidence that in taking it the vendor waived her equitable lien, intending to rely upon the mortgage as her security for the payment of the purchase money. But it cannot be supposed that she intended or consented to waive her equitable lien and rely upon a mortgage that could be no security as against third persons.
It is evident that she did not intend or consent to waive her vendor’s lien until the execution of a valid mortgage, which would be good against third parties when placed upon record. This she did not receive. Her intention to waive her vendor’s lien did not take effect, and the lien still exists so as to cut off the rights of attachment—and judgment— creditors with notice of it.
In discussing this equitable lien in Mayes v. Hendry, 33 Ark., 246, this court, through Judge Eakin, said: “It is not easily comprehensible what is meant by saying that it is neither a jus ad rem nor a jus in re, and that it has no existence until a bill be filed to enforce it. It is plainer language to say that it does not bind innocent purchasers, before lis pendens, and that it is merely personal to the vendor, and does not pass to the assignee of the debt. Within its scope, however, as carefully guarded by courts of equity, it is a specific lien co-existent with the debt—binding from the beginning, as well before suit as after, all who take the land with notice.”
The appellees, M. & J. Rumby, do not stand in the attitude of bona fide purchasers. In fact they are not purchasers at all. They have paid nothing, and it does not even appear that their debt was created after the sale of the land to their ■co-defendant, Lewis W. Chapman. They have no equity, then, equal to the equity of the appellant. They must be postponed, therefore, in the collection of their debt out of this land, until the purchase money due appellant is paid.
The decree is reversed, with directions to the chancery-court to render a decree for the appellant in accordance with this opinion.
