1 Paige Ch. 20 | New York Court of Chancery | 1828
The Chancellor :—So far as the bill seeks to charge the lands conveyed to Daniel Howland, or any of the defendants personally, with the legacy of $340 to Jonathan Howland, and charged by the testator on his real estate, it would seem that the legatee was a necessary party. In Morse v. Sadler, (1 Cox’s Cases, 352,) the Master of the Rolls decided, that every legatee, whose legacy was charged upon the real estate, must be a party to the bill. It is true, that case was overruled by Chancellor Kent, in Brown v. Rickets, (3 Johns. Ch. Rep. 553,) where it was held, that one legatee might file a bill in favor of himself and all others who might choose to come in under the decree. But even there, Chancellor Kent considers it necessary that the bill should state the fact that it is filed in behalf of the complainant and all
The release of the 16th of November, 1819, indorsed on the deed, can by no possible construction, operate as a re-conveyance of the farm, or any part thereof, to Samuel Howland. And although I am not satisfied from the testimony, that Daniel was actually deranged at that time, so as to render his acts void on that account, it is very probable he was so far intoxicated, that he does not recollect what did take place. There is not, however, that certain and satisfactory evidence of what agreement, if any, was made on that occasion, which would warrant this court in decreeing a specific performance, or in correcting the terms of the papers then executed.
The right of the vendor to an equitable lien on the estate sold, for the payment of the purchase-money, has frequently been drawn in question both in England and in the courts of this country. In England, and I believe in every state of the Hnion which has a court of chancery to give effect to such a lien, it is admitted to exist. But what is to be construed a waiver or abandonment of the implicated lien, is a
The earliest case which I have been able to find, in relation to this implied lien, is Chapman v. Tanner, before Lord Guilford, in 1684, (I Vern. Rep. 267.) By the report of that case, in Yernon, it appears the vendee had become bankrupt, and the question was, whether the vendor had a preference to be paid the purchase-money out of the proceeds of the lands, or must come in as a general creditor under the statute. And the lord keeper decided that there was a natural equity that the land should stand charged with the unpaid purchase-money, without any special agreement for that purpose. But, by a reference to the register’s book, it appears "^there was a special agreement in that case, that the seller should retain the title deeds until the purchase-money was paid. (Ambler’s Rep. 726; 1 Bro. Ch. Rep. 424, note b.) The next case, Bond v. Kent, (2 Vern. 281,) was decided a few years afterwards, while the great seal was in commission, after Chancellor Jeffries was killed by the populace. In that case the vendor took back a mortgage on the land for part of the purchase-money, and took the vendee’s note for the residue. And it was decided that there was no lien upon the land, as to that part of the purchase-money not included in the mortgage. Then followed the case of Coppin v. Coppin, (2 Peere Wms. 291,) where Lord King decided in favor of the vendor’s lien, notwithstanding a receipt for the purchase-money was indorsed on the conveyance of the estate. In Pollexfen v. Moore, (3 Atk. 272,) Lord Hardwicke charged the estate, in the hands of an heir at law, with the unpaid purchase-money due to the vendor. But in that case, too, as appears by the note of Mr. Sanders, the vendor retained the conveyances of the estate as security for the payment. Then followed the dictum of Sir .Thomas Clark, Master of the Rolls, in Burgess v. Wheat, (1 Eden’s Rep. 211,) where he expressly recog
In Mackreth v. Symmons, (15 Ves. 329,) a bond had been given for the payment of the purchase-money, in the manner therein stated; and it was held, that the equitable hen on the land existed as against a purchaser with notice. Lord Eldon there refers to most of the previous decisions and dicta in relation to the general principle, which he considers well settled. But he renders the question, as to what shall be deemed a discharge of the lien, if possible, still more obscure. He even intimates, in opposition to the opinion of Sir William Grant, in Nairn v. Rouse, and taking a mortgage upon another estate, as security for the purchase money, might not be considered a waiver of the
*In Ex parte Peake, (1 Mad. R. 346,) Sir Thomas Plumer decided, that the vendor’s receiving bills of exchange in payment of the purchase-money, did not discharge his lien upon the land. And in Ex parte Loaring, (2 Rose’s Ca. in Bank. 79,) where the vendor had taken a negotiable note from the purchaser at four months, and had it discounted, but which was returned to him on the .vendee’s becoming a bankrupt, it was held, that the equitable lien on the estate was not waived; Lord Eldon at the same time expressing his wish that this species of lien had never been admitted, where the vendor had accepted a different security. In the case of Saunders v. Leslie, (2 Ball & Beatty, 514,) before Lord Manners, in Ireland, about the same time, it was decided, that the acceptance by the vendor of the bond or note of the purchaser, payable at a future day, was no waiver of the lien. And a still more recent case is referred to in a note of Simmons & Stuart, where it was admitted, that the giving of the bond of the vendee did not discharge the lien, although, from the nature of the covenants in the bond given in that case, and the special circumstances then stated, it was decided the lien was gone. (Ex parte Parks, 1 Glynn & Jameson’s Rep. 228.) And in Winter v. Lord Anson, (1 Simons & Stuart’s Rep. 434,) which is the last
*It appears, from this review of the English cases, that the question, as to what shall be considered a waiver of the implied lien on the lands conveyed, for the unpaid purchase-money, is still unsettled in that country. But I am gratified to find, that in the American cases, so far as I have been able to discover, with one exception, there is a uniform current of authority in favor of what I consider, at this day, as the only correct rule on this subject; a rule which will enable vendors and purchasers to understand their respective rights, without the necessity of resorting to a court of chancery, to give a construction to the varying circumstances of each particular case.
The American case which I consider an exception to the uniform current of decision in this country, is The Representatives of Wragg v. The Comptroller General, in the chancery court of South Carolina, (2 Dessaus. Rep. 509,) and is founded upon the decision of Earl Bathurst, in Farwell v. Heelis, that the acceptance of the bond of the purchaser, payable at a future day, is a discharge of the equitable lien upon the land conveyed.
The same principle has been recognized in the court of appeals in Virginia, In Cole v. Scott, (2 Wash. Rep. 141,) it was decided, that no security having been taken for the purchase-money, the vendor had a lien upon the land. But Pendleton, president, observes, “ If he hath taken a security, or the vendee hath sold to a third person, without notice, the lien is lost.” And in a subsequent case, where the vendor* had conveyed the land and taken a bond for the purchase-money, in which a third person joined as security, it was decided the lien was lost. (Wilson v. Graham's ex'r., 2 Munf. Rep. 297.)
In Gilman v. Brown, (1 Mason’s Rep. 214,) Judge Story held, that taking the notes of the vendee for the purchase-money, indorsed by a third person as his security, was a waiver of the lien; and his decision in that case was after-wards affirmed in the Supreme Court of the United States. (4 Wheat. 290.) In the case of Gurson v. Green, in this court, (1 John. Ch. R. 308,) Chancellor Kent recognizes the general doctrine of equitable liens for the purchase-money, and decides that taking the vendee’s note does not discharge the lien. But he does not attempt to lay down any general rule as to what will and what will not operate as a discharge.
Lord Eldon seems to think that the question of lien or no lien depends altogether upon the intention of the parties,
Applying this rule to the case now under consideration, the lien which is claimed in this case, upon the land conveyed by Samuel Howland, cannot be sustained. The deed to Daniel Howland purports to be made in consideration of natural love and affection, and divers other good considerations. The object of the grantor was to dispose of his property after his death, and secure a legacy to his sonand, in the meantime, to retain the control of the property, so far as to secure to himself a maintenance out of the rents and profits thereof during his life. He did not rely on any implied lien upon the farm for this purpose, but carved out his own seciirity for his support, by a direct incumbrance
The bill, as against the defendants, Solomon Howland and Robert Haight, must therefore be dismissed with costs. The complainant, as executor of his father-in-law, has a valid claim against the other defendants, for the use and occupation *of the premises after Daniel ceased to support the old gentleman, until the termination of the life lease; and that claim being now fairly before this court, I shall retain the bill against them for the purpose of an account and satisfaction of the rents and profits of the premises during that time.
The declarations of Samuel Howland, as to the abuse and bad conduct of Daniel, are certainly not legal evidence on which to found a claim in behalf of his personal representative. But the habitual intemperance of Daniel, and the consequences which must necessarily follow therefrom,
Stafford v. Van Rensselaer, 9 Cow. 316; Bradley v. Bosley, 1 Barb. Ch. 125; Warner v. Van Alstyne, 3 Paige, 513; Bailey v. Greenleaf, 7 Wheat, 46; Watson v. Wells, 5 Conn. 468; Jackman v. Hallock, 1 Hammond, 318; Tierman v. Beam, 2 id. 383; Patterson v. Johnson, 7 id. 226; Evans v. Goodlit, 1 Blackford, 246.
In Connecticut, the doctrine of an equitable lien for the purchase-money has been somewhat modified. See Meigs v. Dimock, 6 Conn. 458. Church, J., in Atwood v. Vincent, 580, et seq. In Pennsylvania, it does not exist after the vendor has conveyed the legal title, as against a subsequent judgment creditor: Kauffelt v. Bower, 7 Sergt. & R. 64; Semple v. Burd, id. 286; Megargel v. Saul, 3 Whart. 19: and has been exploded in North Carolina. Womble v. Battle, 4 Ired. Eq. Ca. 182. The Supreme Court of the United States held, that it cannot be asserted against creditors, holding under a bona fide conveyance from the vendee, nor a subsequent bona fide purchaser without notice: Bailey v. Greenleaf, 6 Wheat, 46; 5 Cond. 229. This decision is condemned in Swelves v. Williams, 3 Whart. 493; and in New York dissented from, unless the conveyance or mortgage to the creditor be founded on some new consideration, without notice of the lien. See Shirley v. Sugar Refinery, 2 Edwards, 505. But if the vendor takes security from a third person, he loses his lien. Vail v. Foster, 4 Comst. 312; either in whole or in part; Shirley v. Sugar Refinery, supra. But the mere taking of a promissory note from the vendee, subsequent to the conveyance, will not act as a waiver; and it rests on the purchaser to prove that it was intended to operate as such. Id. Chancellor Kent favors the decision of the Supreme Court in Bailey v. Greenleaf, 7 Wheat. 46; see 4 Kent, 154, n. f.
This doctrine in regard to vendors’ liens seems to be derived from the Roman law, which passed the property unconditionally to the purchaser, if the seller took another pledge, or other security: Venditce vero res et traditos non aliter emptori acquiruniur, quam si is venditori preiivm solverit, vel alio modo ci satisfecerit, veluti ex promisors out pignore data. Just. 2, 1, 41.