42 W. Va. 794 | W. Va. | 1896
Mansfield sold Dameron an interest in real estate in Wayne county, the contract stating the consideration as five hundred dollars, and then saying, “And the said Mans
The single question is: Was the Yinson note, in and of itself, payment of the purchase money, entitling Dam-eron at once, upon its execution, to a clear deed for the property sold? It is a clear principle of justice and of courts of equity that a- vendor of real estate retaining title shall never be required to surrender it without payment, unless he clearly agrees otherwise; Does this contract show that Mansfield agreed otherwise? That depends on its construction. But it is important, before- deciding on its construction, to lookatsome law showing how averse the courts are to compelling a man to yield his property to a purchaser until he gets his pay for it, as it will guide us in construing this contract. Dunlap’s Ex’rs v. Shanklin, 10 W. Va. 662, held that giving a receipt for notes on a third person, specifying that it is for purchase money, will not, while the title remains in the vendor, be an extinguishment of the lien. In Knisely v. Williams, 3 Gratt. 265, a vendor retained title and took a bond for purchase money, and later accepted an order on a third person, andgave up the bond, and it was held the lien remained valid. In Yancey v. Mauck, 15 Gratt. 300, land was sold to be conveyed when the first payment was due, and before that an arrangement was made by which the purchaser gave his bond with the vendor as surety to a third person for a debt due from the vendor, and the purchase-money bonds were surrendered. The purchaser became insolvent, and did not pay the bond to the third party. The seller, not having parted with the legal title, was allowed to subject the land to the purchase money, as his lien had not been waived. Judge Allen said the arrangement did not change the character of the debt; it was
Counsel for appellant, admitting that the mere taking of a new note is not payment of an antecedent debt, ingeniously draws the distinction that such rule does not apply here, because there is no antecedent debt, but it is a contemporaneous debt; and quotes 2 Daniel, Neg. Inst. § 1264, saying that where a debtor transfers the note of a third party for a contemporaneous debt there is strong reason for saying it is an exchange of that note for the thing sold the debtor, the debtor parting with his note, the other party with his goods. They cite 18 Am. & Eng. Enc. Law, 182, for the proposition that, “where a note of a third person is taken in payment for goods sold at the time, and not for a precedent debt, it is taken at the risk of the vendor.” That applies to goods in terms, not land. Where chattels are sold, there is no lien; the legal title passes. But in sales of realty there is an equitable and there is a legal title. That doctrine does not apply to sales of realty by executory contract. To so apply it, would overrule decision after decision . Dunlap’s Ex’rs v. Shanklin, supra, and others. Besides, in sales of personalty on credit there is only one security, in realty, two — the personal security and the lien besides. It can not be said it is a hardship on Dameron. So it would be on Mansfield. The right of one to be exempt from loss is as strong as that of the other. But, construing the contract as we do, Dameron assumed that risk. Affirmed.