1. That a vendor retains a lien for the unpaid purchase money of land, even when he'has conveyed the same to the *429vendee, and has not waived or discharged the lien, is a settled principle of law. That the taking a bond or note of the vendee has no effect in waiving the lien, is as clearly settled. That a lien may be waived by the act of the parties showing that it was not intended to be retained, has been admitted in all the cases in which the subject has been considered. Chancellor Kent, in Carson v. Green, 1 John. Ch. R. 309, says : “ Prima facie, the purchase money is a lien upon the land, and it lies upon the purchaser to show that the vendor agreed to rest upon other security.” Chancellor Walworth, in Fish v. Howland, 1 Paige’s Rep. 20, reviews the English cases and many American cases upon the point of waiving the lien, and arrives at the conclusion that the lien is waived, whenever any security is taken upon the land, or otherwise, for the whole or any part of the purchase money, unless there is an express agreement that the equitable lien on the land shall be retained. In Gilman v. Brown, 1 Mason’s R., 212, Mr. Justice Story held, that taking the notes of the vendee, with other persons as security, was a waiver of the lien, and this opinion was sustained by the Supreme Court of the United States. Brown v. Gilman, 4 Wheat. 291. The mass of American authorities agree with the opinion expressed by Justice Story.
2. But we have in the present case not a conveyance of the land, but a bond to convey upon a certain day, which is stated in the bond to be, “the day mentioned by a note given by the said- George W. Hoy, bearing equal date with this bond, for the last payment of the purchase money.” Now, although the purchaser gave a note with security for the first instalment of the purchase money, it is evident that, as the conveyance was not to be made until the payment of the last instalment, the title was retained as a security for the payment of the whole purchase money. It would be absurd to suppose that the vendee, under such an agreement, could obtain a specific execution of the contract to convey, without paying the purchase money. Reason and authority both forbid it. The agreement of the parties, as evidenced by the instruments they executed, was, *430that the vendors should, at least, be secure in the first instalment of the purchase money, and for that purpose, they were to have personal security for its payment, and they were to rely upon the land for the payment of the other instalments, if the vendee was otherwise unable to pay them, and to give effect to this agreement, the title was retained in the vendors. Where the vendors have title in themselves at the time of the agreement to sell, and, instead of making a conveyance, they make an obligation to convey at the time the last note for the purchase money becomes due, it would require the clearest possible evidence of their intent to release the land, from a lien for the purchase money, to justify a court in holding them bound to convey without being paid. No such intent appeal's in this case. In Basevi v. Serra, 14 Ves. 313, Sir Wm. Grant says : “ If a party selling an estate chooses to stipulate that the contract shall he completed, and the land conveyed, trusting for the payment of the purchase money to the personal obligation of the purchaser, he cannot afterwards say, you shall not have the estate before you pay, because, under the contract, the right to a conveyance is not dependent on the payment of the purchase money. But if the time had come when the covenant was to be performed, and the consideration was to be paid, the court would not permit the party to receive that which he had purchased, without taking care that he paid the stipulated price for it.” Corsbie v. Free, 1 Craig & Philips, 74. Batten on Contracts, 108, 65 Law Lib. 79.
3. The fact that the vendors had the notes for the purchase money allowed against the estate of the vendee, after his death, does not affect their right to resort to the land for the payment of- the balance of the purchase money. As it is the admitted law, that taking the notes of the vendee for the purchase money has not the effect of waiving the lien for the purchase money, it follows that the enforcement of the notes, in the modes authorized by law, can have no such effect. Clark v. Hunt, 3 J. J. Marsh. 558.
4. The fact that the plaintiffs requested the administrator of *431Hoy to procure a sale of Hoy’s interest in tbe land, does not affect tbeir right to have the land sold to pay the purchase money. The third section of the third article of the administration act authorized the county court to order the sale of the interest of the intestate in the land, when there was not sufficient assets to pay for the real estate purchased. A proceeding under this section would have substituted another purchaser in the place of the intestate, and from him the plaintiffs would expect to receive their .purchase money. It was their expectation that such would be the effect of the sale, for they attended, at the sale, and gave notice to the bidders that there remained', a large part of their purchase mopey unpaid, and that they held the land bound for the balance. Such also must have been the expectation of the defendants, when they bid ten cents per acre for the land, with such notice of the plaintiffs’ right, unless they supposed that there was some trick in the law by which they could get the land out from under the plaintiffs? claim, and hold it for the ten cents an acre. Accordingly, they insist that, as purchasers at an administrator’s sale, they hold the land discharged from the debts of the intestate. But they forget that they have not a title to the land. They have purchased only an equity, evidenced by a bond which binds the plaintiffs to convoy upon the payment of the purchase money. While the right they have purchased may not be subject to sale-for the payment of the debts of the intestate, in the modes provided by the statute for such sales in the course of administration, still the debt to the plaintiffs is a specific lien upon this land, which is to be enforced against it, when claimed by any person under the intestate, and without the payment of which, equity will not recognize the right of the defendants to have the title. It will be enforced against the land in the hands of any person holding under Hoy, with notice.
5. It is objected to the right of the, plaintiffs that they are not able to comply with the terms of the title bond, because, in the acknowledgment of the deed from Pratte and wife to the plaintiffs, conveying the title of Mrs. Pratte, she acknowiedg*432ed that she “ relinquished her dower in the premises,” when' her own estate was conveyed. This deed is not spread upon the record, and we have to take the objection to the acknowledgment as it appears to have been made when the deed was before the Circuit Court. The deed was dated October 13th, 1841. This objection was considered in the case of Chauvin v. Wagner, 18 Mo., 531, which arose under the act of 1825, and a majority of the court held, that it was not a substantial objection to the acknowledgment, thereby overruling McDaniel v. Priest, 12 Mo. 545. The act of 1825 was more particular in regard to such acknowledgments than the act in the code of 1845. As this record presents the case to us, there was no necessity for the court, in its judgment, to correct the mistake in the acknowledgment, and therefore we take no notice of the question, whether it is competent for a court to correct such mistakes.
6. The judgment or decree in this case requires that, out of the proceeds of the sale which is ordered to be made, there shall be paid to the defendants, the sum which they paid for their purchase at the administrator’s sale, with interest thereon. This judgment is not appealed from by the plaintiffs, and therefore we cannot correct an error made in favor of the defendants. If we could, it is certain that the defendants would not be allowed to speculate upon terms of such safety as the decree permits. The sum they paid belongs to the representatives of Hoy, for the right of Hoy, which the defendants purchased, and under that purchase, they are entitled to the surplus which the land may produce, after satisfying the claim of the plaintiffs. But the consideration of their purchase should be distributed among Hoy’s representatives. If the land does not satisfy the claim of the plaintiffs, then the speculation of the defendants should produce a loss to them of the amount they have paid for their purchase of Hoy’s interest.' But as there is no appeal before us, in which complaint is made of this, part of the decree, we cannot reverse so much as we hold to have been erroneously in favor of the defendants. The judgment is, with the concurrence of the other .judges, affirmed.
AI-generated responses must be verified and are not legal advice.
