24 Am. Dec. 683 | Va. | 1832
This is a bill in equity to subject land to sale, under the lien for the purchase money. As the effort seems, of late, to have been to push this doctrine of equitable lien, beyond what seems to me its legitimate extent, I have thought it might not be amiss to look a little into it. It is a doctrine of comparatively modern date, and seems to have arisen from a supposed understanding between the parties. In Gilman v. Brown, 1 Mason, 212. 4 Wheat. 292. in notis, judge Story discusses the subject with much learning. He says, “ The rule is manifestly founded, on a supposed conformity with the intentions of the parties, upon which the law raises an implied contract; and therefore it is not inflexible, but ceases to act, where the circumstances of the case do not justify such a conclusion.” In that case, there was certainly no express waiver of the equitable lien: it was brought by an appeal to the supreme court of the U. States, 4 Wheat. 255. and the supreme court was clearly of opinion, that, from the circumstances, the parties contemplated no such lien, and therefore decided, without difficulty, against its existence. In Bailey v. Greenleaf, 7
In the case before us, looking at the facts of the transactions between Moore and Lee, Lee and Hancock, Hancock and Moore, and then between the three parties, the case does not appear to me, so much like a regular sale and transfer of land, as a cancelling, by the parties all round, of their contracts,—Moore paying Hancock 4000 dollars in timber for his speculation, and taking back his land : more especially, as, instead of regular conveyances, they agreed that the deed made to Lee should be destroyed, and that Lee should give Moore his bond for 500 dollars for the rents
I have discussed these questions, since what has been said may tend to put an end to the controversy; but they are not properly presented by the record ; since Murrell f
Without deciding the point, I am willing to consider Hancock as having the same rights that he would have had, if he had conveyed the legal title to Moore, and if the consideration for the purchase had been a pecuniary one. If there were no persons concerned in this case, other than Hancock, Moore and Franklin, it would be perfectly clear, that, as Franklin received notice of Hancock's lien, before he paid his purchase money, the land would be liable in his hands, for the unpaid purchase money due from Moore to Hancock; and it would be equally clear, that Moore, also, would have a lien on the lands for the purchase money due to him from Franklin; although that lien would be subordinate to the lien of Hancock. But there are other persons, whose interests are involved in the controversy. Franklin's bonds to Moore for the purchase money, have been assigned to Murrell Meem, for valuable consideration, and (it seems) without notice of any equity affecting them. This assignment of the bonds transferred to Murrell &f Meem, the lien on the lands which Moore had before the assignment. Is this lien, thus acquired, subordinate in the hands of Murrell fy Meem, to that of Hancock? I think not.
The doctrine of the lien of a vendor of lands is the creature of a court of equity. It ought not, therefore, to be so applied as to operate injustice. So long as it is confined to the parties and their heirs, and to those claiming under them with notice, it can never be liable to objection. But the lien of the vendor, whether it be regarded as a natural equity, or as a trust, is founded on no matter of record, or even of express contract, but is merely implied from the supposed intentions of the parties. It is, in itself, secret and invisible. The vendor had it in his power to make it other
The doctrine of lien, if thus understood and enforced, will have a just operation, and be freed from the reproaches so frequently cast upon it.
Murrell &f Meem, ought, therefore, to be made parties, thpy being the parties interested to contest the claim asserted by the appellees; and, if in the controversy between them and the appellees, their case shall turn, as it now appears, that they acquired these bonds, bond fide, by assignment for valuable consideration, and gave Franklin notice of the assignment, before they had any notice of the equity asserted by the appellees, their claim to the money due on the bonds ought no wise to be affected by that equity.
I shall consider this case, as if there had been an ordinary sale for money by Hancock to Moore, a deed made, and part of the purchase money in arrear; reserving for some other occasion the inquiry, whether the vendor’s lien extends farther than to secure the payment of purchase money; in other words, whether it can be extended to secure the performance of covenants to do some collateral act as the consideration of the sale.
In the view I take of the case, the material facts are simply these: Moore, after his purchase from Hancock, sold the land to Franklin, executed a deed to him, received his bonds for the purchase money, and assigned them to Mur
Where the vendee of land still retains the estate it is clearly liable for the whole of the unpaid purchase money by virtue of the vendor’s lien. Where he has sold to a sub-vendee, and the title has been made by him, and the money paid before notice of the original vendor’s lien, the sub-vendee holds discharged of'that lien. Where, however, a part of the purchase money is unpaid by the subvendeq, the land in his hands is liable for that unpaid portion, but for no more. The equity is, that he shall pay to the original vendor whatever he himself yet owes to his own vendor. If he owes any thing, he, and his land, are discharged, upon his paying up that to the original vendor’s demand; and if he owes nothing, neither himself nor his land is in any wise responsible.
Try this case by these principles.' Was any thing due from Franklin to Moore (when he received notice of Hancock’s claim) which equity demanded that he should pay over to Hancock instead of Moore ? JYothing was due. His bonds, indeed, had been due to Moore, but Moore had sold them, for value, to persons who knew no
It is true that assignees take every bond subject to the obligor’s equity against the obligee ; but I have yet to learn, that they take subject to an unknown equity of a stranger against the obligee. The equity set up by an obligor is against the bond : it is to avoid the bond. But the equity of Hancock is not to discharge or vacate, but to enforce, the bond, for his benefit. Can it be possible that the assignees take subject to this equity? They bought, indeed, subject to any equityof Franklin against Moore;—subject to the equity of Moore’s debtor against the bond, but surely not subject to any supposed equity of his creditor to enforce it, of which equity they had no notice.
That the vendor’s lien is lost as to the land by a sale to a subsequent vendee without notice, is clear. And if he has any lien upon the bonds given by the sub-vendee, why should not that lien also be lost by a sale of the bonds without notice ? I can see no reason for the distinction ; for as the assignee has possession of the bonds, and has by law a legal right to sue for them in his own name, and has therefore complete power to enforce payment at law, it is very clear that he has the legal' advantage. Shall equity take away this legal advantage from a fair purchaser without notice ? I think not. Murray v. Lylburn, 2 Johns. C. R. 441. Livingston v. Dean, Id. 479.
I am, therefore, of opinion to reverse the decree; and if the ihcts distinctly appeared in evidence as to the assignment, I should direct a dismission of the bill. In the present aspect of the case, I think it better to send it back, with directions that Murrell Meem be made parties, as the real contest is between them and the appellants. If the appellants refuse to make them parties, then their bill should be dismissed for want of proper parties.