210 F. 223 | 7th Cir. | 1913
(after stating the facts as above).
“No” is the general answer of the numerous authorities cited by ap-pellee,
“By clear implication of the statute, as between vendor and vendee, a lien exists upon the land sold for the purchase price' of the land; and it does not seem to be seriously contended that if it appeared, either from the contract or extrinsic evidence, what price in the trade was put upon the realty and what upon the personalty, a lien would not exist upon the land for that proportion of the unpaid purchase money which was applicable to the sale of the land.”
But the statute plainly does not cover a case of the joint sale of realty and personalty for a gross sum, and the court resorted to equitable considerations in reaching its conclusion:
“We think it proper to treat this transaction as one sale; and, assuming, for the purpose of argument, that no lien exists upon the personalty, even as between vendor and vendee, after possession has been parted with, we see nothing inequitable in subjecting that part of the property which the court can reach to a vendor’s lien for the unpaid purchase money due upon all the property sold in the same transaction.”
However, the preponderance of the authorities, certainly in number, support the general proposition that no vendor’s lien exists where realty and personalty are sold jointly for a sum in gross. But do these cases mean- that whenever such a contract is exhibited the vendor is inevitably remediless in equity, and must necessarily be remitted to his action at law? We think not. Whether the vendor’s lien historically
“A vendor’s lien upon land for its purchase money is not impaired because the obligation taken for its payment includes the price of personal property sold at the same time, when the amount to be paid for the land can he ascertained by proof”
- — and the proof there consisted of a statement in the contract of the price per acre. Bergman v. Blackwell (Tex. Civ. App.) 23 S. W. 243, was a case where the vendor sold real and personal property for the gross sum of $3,000. The deed of the land was for an undivided interest, and recited that the purchase money was not fully paid. The ven-dee paid $1,500 of the $3,000, and gave for the remaining $1,500 his note in which a contract lien for $1,500 was created on the land in favor of the vendor. In partition proceedings the tract on which a
“Tlie note itself creates a lien on tlie land, to secure it, and as a contract lien it is good against Means and purchasers from him with notice of it. Whether the recital in the deed would affect appellants with notice of such a lien — that is, with notice of any lien except a vendor’s lien for the purchase money — is a question which we need not decide. Notwithstanding the fact that both land and chattels were embraced in the sale to Means, such portion of the consideration, at least, as represents the value of the land sold, is secured by a vendor’s lien on the land, and it was competent to ascertain, by any legitimate evidence, what that was. There being no agreement between the parties at the time of the sale, fixing the value of the land (unless the note is to be treated as such), equity will ascertain the part of the consideration which it formed by fixing the proportion .which its value bore to the whole value of the property.”
In McCauley v. Holtz, 62 Ind. 205, the suit was upon a note and to enforce a vendor’s lien upon land, in part payment for which it was alleged the note was given. The facts are stated in the opinion as follows :
“The maker of the note purchased of the payee the real estate, a lien upon which is in question, and also a stock of liquors, two billiard tables, bar fixtures, furniture, etc., for the gross sum of $2,526, $1,900 of which was paid at the time the deed of conveyance was made, and the note of $600, now in suit, was given for the balance, less $26, which was paid after the note was executed. The real estate at the time of the sale was estimated at the value of $1,600, and the personal property at $926. At the time the payments were made, nothing was said by either party whether they should be applied to the payment of the real qr personal property; and no such application was made by either party. The money was paid upon the whole debt.”
. On these facts the court applied the payments upon the personalty, and held that the unpaid $600 was a lien on the land, inasmuch as the parties at the time of the sale had recognized that the land had a much higher value than $600. How the estimate of value was proved, whether by recital in the contract or by extrinsic evidence, neither the reported case nor the record discloses. But that is immaterial. The case is valuable as showing how a court of equity will hold a conscienceless vendee if possible, first, by applying his payments upon the personalty, and, secondly, by fixing a lien on the land for the unpaid part of the gross consideration if that balance does not exceed the value of the land as recognized by the vendee at the time of purchase. The New York Court of Appeals, in Zeiser v. Cohn, 207 N. Y. 407, 101 N. E. 184, met the contention that there can be no vendor’s lien if lands and chattels are jointly sold for a gross sum by saying that that is a generalization which must be answered by considering the particular facts of the case. To conclude this part of the discussion, we have found no authority that the mere fact of joinder of land and chattels in one contract for a gross sum inevitably bars the door of equity against the vendor, and that permits the vendee to hold both land and money against the power of the chancellor if the vendor is able to show, by
Thus far the question has been considered from the viewpoint of a vendor. This case, however, is one of an asserted vendee’s lien. In many respects the two equitable fictions are identical. They both grow out of the transaction of the sale and purchase of land. They both originated {though not at the same period, Mackreth v. Symmons, 15 Ves. Jr. 329) from the same motive, from the desire of the chancellor to compel righteous dealing between vendor and vendee. But when the two cases reach the court, we believe certain distinctions, which should be given effect, may justifiably be drawn. When the vendor sues, the transfer of title has been made, and he is seeking a lien for the unpaid balance of the gross consideration. Therefore the whole of the consideration necessarily has to be viewed and weighed. It may be that, unless means are afforded for apportioning the whole consideration between land and chattels with accuracy down to the.last dollar, the chancellor would be constrained to withhold a charge upon the land on account of the uncertainty. But when the vendee sues in equity for the return of the earnest money, no transfer of the ¡property has taken place, and he is not seeking a lien for the balance of the gross sum. Therefore the whole of the consideration does not necessarily have to be viewed and weighed. That is, from the standpoint of the vendee, the court, applying the doctrine of application of payments, would apply the earnest money upon the land (the converse of what was done in McCauley v. Holtz, 62 Ind. 205); and then, if it clearly appeared that the earnest money was but a very small part of the value of the land according to any valuation that the vendor could have honestly asserted at the time of the sale, the court would not need to apportion the total consideration between land and chattels with accuracy down to the last dollar, the court, without regarding the value of the chattels or determining to a nicety the excess of value in the land, could decide with certainty that no charge was being put upon the land beyond the money the vendee had invested in the land, and therefore equitably owned to that extent.
This is an Indiana case; and of course the federal court in Indiana cannot properly declare a vendor’s or a vendee’s lien unless the Supreme Court of the state recognizes the existence of such liens. Fisher v. Shropshire, 147 U. S. 133, 13 Sup. Ct. 201, 37 L. Ed. 109; Slide & Spur Gold Mines v. Seymour, 155 U. S. 509, 14 Sup. Ct. 842, 38 L. Ed. 802. Both liens have frequently been upheld in that jurisdiction. Shirley v. Shirley, 7 Blackf. (Ind.) 452; Dart v. McQuilty, 6 Ind. 391; McCauley v. Holtz, 62 Ind. 205; Stults v. Brown, 112 Ind. 370, 14 N. E. 230, 2 Am. St. Rep. 190; Coleman v. Floyd, 131 Ind. 331, 31 N. E. 75. Indeed, we have found in our investigation of this subject no court more zealous to uphold a high standard of righteous conduct between vendor and vendee of land through the compulsive power of equity than the Indiana court.
The decree is reversed and the cause remanded for further proceedings.
2Jones on Liens, § 1072; 3 Pomeroy, Equity Jurisprudence, § 1251;. 39 Oye. 1830; 29 Am. & Eng. Ifineyl. of Law (2d Ed.) 745; Wabash, etc., R. R. Co. r. Ham, 114 U. S. 597, 5 Sup. Ct. 1081, 29 L. Ed. 235; Welch v: Farmers’ Loan & Trust Co. (C. C. A. 6th Cir.) 165 Fed. .561, 91 C. C. A. 399; -Koeli v. Roth, 150 Ill. 212, 37 N. E. 317; Warner v. Bliven, -127 Mich. 665, 87 N. W. 49; Suddeth v. Knight (Ala.) 14 South. 475; Bridgeport, etc., Co. ,v. American Fire Proof, etc., Co., 94 Ala. 592, 10 South. 704; Sykes v. Betts, 87 Ala. 537, 6 South. 428; Betts v. Sykes, 82 Ala. 378, 2 South. 648; Alexander v. Hooks, 84 Ala. 605, 4 South. 417; Stringfellow v. Ivie. 73 Ala. 209; Peters v. Tun-ell, 43 Minn. 473, 45 N. W. 867, 19 Am. St. Rep. 252; Griffin v. Byrd, 74 Miss. 32, 19 South. 717; Snyder v. Snyder (Sup.) 115 ST. Y. Supp. 993; Erickson v. Smith, 79 Iowa, 374, 44 N. W. 681; Sutton v. Sutton, 39 Tex. 549; Wilson