56 Iowa 128 | Iowa | 1881
I. The defendant Caroline Eggleston, formerly Caroline Schilling, bought the land now in controversy from Jeremiah Eggleston, for the sum of $4,400.' She paid for the land m money and by the transfer of certain notes, amongst which was a note on John Zulauff for $3,000, on which $1,000 had been paid, which note she indorsed in blank. Jeremiah Eggleston deeded the land to Caroline Eggleston and her two minor children, Clara and Louisa Schilling. At the time this deed was made Caroline Eggleston owned over six thousand dollars worth of property in her own right, which she obtained from her former husband, and was not in debt. Afterward Jeremiah Eggleston traded the Zulauff note to the plaintiff, William Kendrick, for land and stock, and Kendrick’s own note for $359. The Zulauff note was secured by a mortgage on land and mill property. At the time of these transactions all the parties to the sale and transfer of the Zulauff note considered it good, and the maker solvent. The Zulauff mill property was, in fact, incumbered by a judgment which was prior to the lien of the Eggleston mortgage. Zulauff proved to be insolvent, so-
In leading cases in equity it is said: “It may be considered as settled by the unanimous concurrence of the cases in this country, that wherever this lien is recognized at all it will not be affected by the vendor’s taking the bond or bill single of the vendee, or his negotiable promissory note, or a check drawn on a bank by' the vendee, which is not presented or paid, or ally instrument whatever, involving merely the personal liability of the vendee; but that taking a mortgage of other property or the bond or note of the vendee with a security, or a negotiable note drawn by the vendee and indorsed by a third person, or drawn by a third person and indorsed by the vendee, will repel the lien presumptively.”
That the taking of security is prima facie a waiver of the lien, see 2 Washburn Real Property, 9; Vail v. Foster, 4 Coms., 312; Fish v. Howland, 1 Paige, 20; Traid v. Smith, 2 Mich., 243; 4 Waits Actions and Defenses, 323; Boyton v. Champlain, 42 Ill., 57; Landers v. McAfee, 41 Ga., 684; Durette v. Briggs, 47 Mo., 356; Yaryan v. Shrener, 26 Ind., 364; Schurz v. Stein, 27 Id., 112; Brown v. Gilman,
It is true as held in Garson v. Green, 1 Johns. Ch., 309, that prima faxie the purchase money is a lien upon the land, and it rests upon the purchaser to show that the vendor agreed to rest on other security. But, when it is shown that other security was taken, the presumption that a lien was intended is rebutted, and the burden of proof is then east upon the vendor to show that a waiver of the lien was not intended. The plaintiff relies upon Cordova v. Hood, 17 Wallace, 1. In this case the purchaser executed for the purchase money his own note secured by his son. There was evidence showing clearly that neither party understood the note to be taken as a substitute for the lien. It was said by the court that the taking of a note or bond from the vendee with a surety has generally been held evidence of an intention to rely exclusively upon the personal security taken, and, therefore, presumptively to be an abandonment of the lien, but that this raises only a presumption, open to rebuttal by evidence that such was not the intention of the parties. The case of Wilson v. Lyon, 51 Ill., 166, also cited and relied upon by the appellee, is one where a vendor’s lien clearly existed at the time of the sale, which it was held was not displaced by the subsequent assignment of a policy of life insurance, the proof showing that the assignment was not taken as independent security; Most of the other cases cited by appellee hold simply that the acceptance of a note of a third person for goods does not constitute payment unless so agreed, and that payment in forged or worthless paper does not satisfy a debt. It is evident that these cases are not applicable to the question of a waiver óf a vendor’s lien by taking collateral security.
The plaintiff insists that the presumption of waiver arising from the taking of collateral security is rebutted by the fact that the security was worthless. In support of this position appellee cites McDole v. Purdy, 23 Iowa, 277. That was a case of the exchange of lands, in which the de
Reversed.
