Erickson v. Smith, 79 Iowa 374

Erickson v. Smith

79 Iowa 374 | Iowa | 1890

Given, J.

I. The right of vendors of real estate to a lien thereon for unpaid purchase money, though questioned by high authority, and rejected by many of the states, has been recognized in this state since Pierson v. David, 1 Iowa, 23. “It is a simple equity, raised and administered by courts of chancery. It is not measured by any fixed rules, nor does it depend upon any particular fact or facts. Each case rests upon its own peculiar circumstances, and the vendor’s lien is given or denied according to its rightfulness and equity, in the judgment of the court, upon the facts developed in the particular case.” Porter v. City of Dubuque, 20 Iowa, 440.

The right to this lien being limited to unpaid purchase money, it will not be sustained when the purchase price has been so blended with other considerations, by the contract or otherwise, that its precise amount cannot be ascertained. ‘ ‘ If land and personal property be sold together, under an entire contract, for a gross price, and in the sale there is no agreement of the parties determining what part of the price is for the land *378and what part for the personal property, the presumption is that the vendor did not look to the land for payment, but relied exclusively on the personal responsibility of the vendee.” 2 Jones, Liens, sec. 1072, and cases cited. Under the agreement Erickson sold nothing but real estate to Smith, and that for a definite and fixed price. At the time of the settlement, when the notes in suit were given, taking the whole transaction between the parties into account, except a few items that were omitted from the settlement, Smith owed Erickson $999.53, which Smith says they agreed to call one thousand dollars. The statement of that settlement, produced by Erickson, shows that it included the five hundred dollars to be paid in cash in thirty days, and the five hundred dollars which he had assumed to Rosenbaum Bros., the one hundred and thirty-one dollars’ balance due Rosenbaum Bros., and the bank account to Clark of seven hundred dollars.

While it is true that the transactions, other than that relating to the real estate included in that settlement, substantially balanced the account between them, leaving the one-thousand-dollar indebtedness as purchase price of the real estate, it is equally true that in making that settlement the parties did not so treat the items, but embraced • all of them in the settlement by which the balance due Erickson was reached, and in consideration of which balance the notes in suit were given. Under these circumstances, it is not possible to separate the purchase price of the land remaining unpaid from the other items that enter into the settlement, and say that the notes were given solely in consideration of the balance due on the land. By allowing the items to be thus blended, the plaintiff Erickson is presumed to have waived his right to a lien, and to rely exclusively on the personal responsibility of the vendee.

II. Appellee rests his right to bring this action before the maturity of the notes upon his claim for a vendor’s lien, and contends that, being entitled to a vendor’s lien, he could thus bring the action so as to *379charge third persons with notice of his claim, as provided in section 2628, Code. Appellee not being entitled to a vendor’s lien, it follows that the action was prematurely brought. We do not now decide whether a vendor, entitled to a lien, might bring his action, before maturity of the debt, to charge third persons with notice of his lien, or not. These views render it unnecessary that we consider the question made as to the amount of the judgment. The judgment of the district court is reversed, and the case will be dismissed, without prejudice to the claim of either party, and at the costs of the appellee. Reversed.