39 Tenn. 143 | Tenn. | 1858
delivered the opinion of the Court.
The complainant’s bill was dismissed on demurrer. The bill seeks to subject a lot in the town of Nashville, to the satisfaction of a balance of unpaid purchase money, by force of an express lien reserved upon the face of the conveyance.
It appears, from the allegations of the bill, that, on the 1st day of December, .1848, .the defendant, Kirk-man, sold and conveyed the lot' in question to the defendant, Purcell, at ■ the price of $1500. At the time of said sale, Kirkman, the vendor, was indebted to the complainant; and it was mutually agreed between Kirk-man, complainant, and Purcell, that the- latter, in part discharge of the purchase money of. the lot, due to Kirkman, should-assume’and become., responsible for. the debt due from Kirkman to complainant. And, in pursuance of this agreement, Purcell executed two notes, one for $525,00, and the other for $825,00, “ payable in stone-work, to be done at any time called for, after the
It further appears from the bill, that, on the 19th of January, 1850, said lot was sold at execution sale, as the property of said Purcell, and was purchased by one Northrop. The sheriff’s deed to Northrop, in describing the lot, refers to it as “ being the same conveyed by John Kirkman to the said William Purcell, by deed, (unregistered,) on the 1st day of December, 1848.” On the 14th of January, 1841, Northrop sold and conveyed said lot to E. R. Cheatham, and in his deed of conveyance-he covenants, amongst other things; that said lot “is unincumbered, with the exception of the balance of the purchase money due from one William Purcell, on the purchase of said lot of ground by said Purcell from John Kirkman, on the 1st day of December, 1848.” And in the
The bill exhibits a copy of an instrument executed by John Kirkman to Cheatham, on the 17th of August, 1852, in which the former acknowledges the payment to him, by Cheatham, of the balance of the purchase money due on the two before mentioned notes, executed by Purcell to complainant, and in consideration thereof, he relinquishes to Cheatham all his interest in said lot.
The bill charges that, in fact, Cheatham paid nothing to Kirkman for said release, and denies that Kirkman had any interest in the notes, or in the lien reserved to secure their payment, or that he had any power to release or discharge said lien. It is further charged, in substance, that both Korthrop and Cheatham purchased with full knowledge of the fact that a portion of the purchase money of the lot remained' due to complainant, and, also, with knowledge of the existence of the lien, to secure the payment thereof: and that they, respectively, held said lot in subservience to, and consistently with the right of the complainant, and not adversely thereto; and that in the summer of 1857, Cheatham had promised to pay complainant the remainder of such purchase money.
It is further alleged that the note for $325,00 .still remains unpaid; and complainant states that “ he demanded payment of said note long since, and payment was refused.”
The bill seeks to subject said lot to the satisfaction
Taking the allegations of the bill to be true, for the present, we think the Chancellor erred in allowing the demurrer.
The pretended release of Kirkman might be left out of view, as entitled to no consideration in the determination of the main question intended to be raised by the demurrer. Upon the facts charged in the bill, the release is a mere nullity. Kirkman held the lien as a naked trustee for the complainant. No lien could, possibly, have existed in his own favor, for the simple reason that, by the arrangement stated in the bill, his claim for the purchase money of the lot was fully satisfied and extinguished at the time of the sale. And Cheat-ham, as is substantially charged, having knowledge of the facts, cannot avail himself of the release for any purpose. 'How it might be, if Cheatham occupied the footing of a bona fide purchaser without notice, need not be stated. It is clear, however, that Kirkman is a proper party defendant, either for the purpose of having the release annulled, or for the purpose of having a decree against him for the amount of the unpaid purchase money, which, by his deed, he acknowledges the reception of from Cheatham. For, although he had no right to receive the money, yet, having done so, he must be treated as holding it in trust for complainant. And his acknowledgement being under seal would be an estoppel upon him, at law, to deny the fact of having
But the Chancellor allowed the demurrer, as is stated in the argument, on the ground that the complainant’s equity was barred by the statute of limitations. This conclusion is erroneous, we think, for several reasons.
That it wras competent to the parties, by mutual agreement, to create the lien declared in the deed from Kirkman to Purcell, for the benefit of the complainant, admits of no doubt upon general principles of law. But the exact nature and legal effect of a lien thus created, seems not to be well defined, in any of the books to which we have had access. It certainly' is not, in all respects, equivalent to a mortgage; because the legal estate passes by the conveyance, and vests in the purchaser, notwithstanding the lien reserved in the deed.
And yet it must be regarded as, in some respects, different from, and as possessing greater efficacy than the vendor’s lien, properly' so called. The latter, where the legal estate has been conveyed to the vendee, is the mere creature of a court of equity. It exists only by implication of law; and is in the nature of a trust only, and not a specific lien upon the land conveyed, until a bill has been filed to enforce it. 10 Hum., 371.
But an express lien, created by contract and reserved on the face of the conveyance, though not a mortgage, must at least be regarded as a spécific lien, forming an
It is true, in the present case, that the deed from Kirkman to Purcell, reserving the lien, was not registered until after the sale by Northrop to Cheatham. But this is of no consequence, in this particular case, because the deed from Northrop to Cheatham expressly recognizes the existence of the lien declared in Kirk-man’s deed.
If this view of the nature and effect of the lien in question be correct, it certainly does not create between the parties a relation similar to that of a mortgage, as regards the application of the statute of limitations. The relation of the purchaser is more analogous to that of a trustee, by express contract, who may disclaim the trust; and after such disclaimer, and a knowledge thereof
It is altogether a mistaken conclusion, that, under the second section of the act of 1819, the complainant’s equity is barred by the mere lapse of seven years, before filing his bill, irrespective . of the character of defendant’s possession. To create a bar, under that section, the possession must be, in legal contemplation, adverse. Such has been the uniform course of decision since the case of Dyche v. Gass, 3 Yer., 397. And the case relied on, (Ray v. Groodman, 1 Sneed, 586,) when carefully examined, will be found to be in accordance with previous adjudications upon the statute. '
But, again: The case of Ray v. Goodman settles, that the purchase money must have been due seven years, before the filing of the bill, to enforce the payment thereof, by a sale of the land.
In other words, a cause of action must have existed for the full period of seven years before suit brought, which might have been asserted at any time within that period, in order to create a bar. This cannob be predicated of the case under consideration, from the face of the bill.
Erom the statement in the bill, that payment was demanded “ long since,” and refused, it cannot be inferred that it was demanded more than seven years before suit. This would be to reverse the rule, that, upon a demurrer, every reasonable presumption is to be made in favor of, rather than against the bill. It is only in cases where, it clearly appears, from the face of the bill, that the complainant’s equity is barred, that the bill will be dismissed upon demurrer, for that cause.
Decree reversed, and cause remanded.