45 Ky. 67 | Ky. Ct. App. | 1845
delivered the opinion of the Court,
In 1826, John A. Honoré sold and conveyed to Bell and Barbaroux, two lots in Louisville, for $12,500, payable in twelve years, with interest on said sum at the rate of six per cent, per annum, payable quarter yearly. The consideration and terms of payment were expressed on the face of the deed. In 1828, Barbaroux sold and con
Bakewell elected to make payment to Honoré, and executed his note or notes to him for the amount, and Honoré executed his acquittance to Bell, crediting the amount on his demand against him.
The note or notes of Bakewell to Honoré, were renewed from time to time, until the amount, by payments, was reduced to $2,400, and a note for that balance was executed by Bakewell to Honoré on the 28th December, 1841, payable four months after date. On one occasion, prior to the execution of this last note, Bakewell paid, in cash, about one half of the amount then due, and gave a check to the Bank for the residue, which Honoré retained a few days without presenting it to the Bank for payment, and returned it to Bakewell, and the check, by mutual consent, was cancelled, and Bakewell’s note given for the amount, which by renewals, produced the note in question.
In 1842, Bakewell being much embarrassed and about to fail, executed a mortgage deed .to A. & 0. Hite, on the parcel of ground sold to him, and on other real and personal estate, to secure them a debt which he owed them, and to indemnify and secure them as his sureties and accommodation endorsers to the Bank of Kentucky, the Northern Bank and other Banks in and out of the
The Chancellor disallowed Honore’s lien and dismissed his bill, and decreed upon the cross bill a foreclosure and sale of the mortgaged estate as prayed for, and Honore’s executor has appealed to this Court.
It is contended, 1st. That Honoré, by his acquittance to Bell, discharged his lien upon the parcel of ground in question, springing out of the sale to Bell and Barbaroux, and that the law implied no lien in his favor for the consideration of Bakewell’s purchase. 2nd. That if a lien would be implied in his favor, that that lien was waived and lost forever by the receipt of the check which was afterwards surrendered and cancelled. ' And 3rd. That if the lien was not waived, that A. & 0. Hite had no notice of it, nor the means to acquire notice.
1st. There is no question that Honoré, by his acquittance to Bell, surrendered his lien to the. extent of his acquittance on his original sale to Bell and Barbaroux; but we are clearly of opinion that upon the sale by Bell to Bakewell, and the election on the part of the latter of the alternative stipulation in the deed, to pay Honoré the consideration of his purchase, and his assumpsit to pay and the acquiescence in the arrangement, by Honoré, and his acceptance of Bakewell’s assumpsit and acquittance of Bell from the amount, a lien on the parcel purchased by Bakewell, was raised in his favor for the amount of the consideration so assumed to be paid to him. Had Bell received Bakewell’s notes for the consideration, a lien would be implied in his favor; and had those notes been assigned to Honoré as payment of so much and an acquittance for the amount executed to him, as assignee of Bell, Honoré would certainly have held a lien on Bakewell’s purchase for their payment; and had these assigned notes been lifted and other notes, in the form of
Nor is ther,e any evidence, that by the sanction which ! he gave to the transaction, and acceptance of Bakewell’s / assumpsit, that he intended to waive all lien upon the / ground, and look to Bakewell’s personal responsibility } alone for payment. Nor are there grounds for the implication of such an intention. Prima facie, a lien is implied in his favor, as the holder of the notes for the con-1"!' sideration, under the arrangement which was made, and ) the presumption can scarcely be indulged, that he would have released his original lien upon the ground, and personal claim upon Bell & Barbaroux, on his original sale, without looking as well to the lien which attached to the consideration of Bell’s sale, made payable to him, as to Bakewell’s personal reponsibility. The presumption may be fairly indulged, or at least the contrary'has not been shown, that he intended to occupy the place of Bell, in all respects, in his claim uponBakewell and the ground sold for payment of the consideration, and as such, may assert such lien as Bell could have asserted, had the notes been executed to and held by him.
It is true that it has been stated that this lien is confined to vendor and vendee, and will not be raised in favor of a third person. And from this general text laid down in the elementary books, the conclusion might be deduced, that no other than the vendor and general grantor could assert this lien. But this principle has been deduced from the cases of Coppin vs Coppin, (2 P. Williams, 496,) and the dictum of Lord Hardwick, in the case of Pollexfen vs Moore, (3 Atkyns, 272.) By referference to these cases, it will be perceived that the principle is merely asserted, that in marshaling assets a legatee will not be substituted to the lien of the vendor, who
2d. We are equally clear that Honoré has not waived or surrendered his lien, by the acceptance of a check on the Bank, which was never presented or paid. By the subsequent surrender and cancelment of the check by the rautual consent of Bakewell and himself, who were at (he time the only interested parties, it must be under- , , TT . , , . stood that Honoie was intended to be placed in statu ^%Q ¡n rela(jon (0 his demand.
The check was no payment, bula means or mode by which Honoré might obtain payment. It was no more a payment than the execution or renewal of a bond or note or bill of exchange, for the consideration, which is aceepted but not paid, which was formerly regarded as payment, or rather as a surrender ot the lien, but which by later and more enlightened decisions, has been determinec^ otherwise;' 1 The lien is a lien to secure the payment of the consideration, and prima facie it continues until payment is made, or it is waived or abandoned by some overt act on the part of the claimant, indicating an intention to do so, as taking and looking to other security for the payment, or until it has been lost by the transfer of the land to an innocent purchaser for a valuable consideration, without notice, or the means of notice. The bond, note, bill of exchange or check, is but the evidence of the amount due, and the means by which payment may be obtained or coerced, and may be changed orre
3d. A. & O. Hite are not innocent purchasers, without notice, or the means of notice. By reference to the deeds from Honoré to Bell and Barbaroux, and from Bell . ... . to Bakewell, through which they derived title, they might have learned that Honoré had not received the considerafion, but had sold on a credit of twelve years, and that Bell ■had not received the consideration of his sale, but had also sold on a credit, giving to Bakewell the privilege of making payment to Honoré. With the information thus afforded, it was their duty to enquire of Bell, Bakewell and Honoré, to whom Bakewell bad assumed payment, whether payment had been in fact made. Upon such inquiry they could not have failed to arrive at. the truth, and failing to make it, they have been guilty of such negligence as precludes them from occupying the condition of innocent purchasers wiihouf notice.
The decree of the Chancellor is therefore reversed, and cause remanded, that the lien of Honoré may be allowed and enforced.