Morse v. Adams

2 S.C. 56 | S.C. | 1870

The opinion of theCourt was delivered by

Moses, C. J.

We are left by the brief without the particular circumstances which attended the contract of sale by the plaintiffs to Adams, further than that the vendee gave his own note, and that of Glover and Durisoe. as the consideration of the purchase.

Lord Eldon, in Mackreth vs. Symmons, 15 Ves., 349, (a leading case,) says: “The more modem authorities upon the subject have brought it to this inconvenient state, that the question is not a dry question upon the fact whether a security was taken, but it depends upon the circumstances of each case, whether the Court is to infer that thelien was intended to be reserved, or that credit was given, and exclusively given, to the person from whom the other security was taken.” Here the transfer and acceptance of the note of third persons for almost two-thirds of the price might go far toshewthcin-tent of the parties that no lien was to be retained by the vendor.

We propose to deal with the general question submitted by the appellant, whether in South Carolina the vendor, by the mere fact of the sale, has an equitable lien on the land for the purchase money ?

While it is not to be denied that in the English Chancery, and the Courts of several of the States of the Union, the vendor is held to have a lien on the land as. a security for the purchase money, without any mortgage or other instrument creating it, in the case of Wragg vs. Comptroller General, as long ago as 1808, the application of the doctrine in this State was repudiated. The decision there was declared to be in conformity with the law prevailing in South Carolina for the past sixty years, and in 1859 the Court, in McCorkle vs. Montgomery, 11 Rich. Eq., 132, emphatically endorsed it.

It would require circumstances of a strong and controlling character to induce ns to reverse a rule so long existing in regard to property, against which no complaint has been made, and which the Legislature, by its silence, and the Bar, by its acquiescence, have approved. So well has it been understood that a sale of real estate is seldom made on credit without the execution of a mortgage to secure the promised consideration.

It would ill comport with the province of the Court, whose duty it is to administer the law as it is found to exist, by rash changes to unsettle rules of property, and undertake to annex conditions to sales of real estate which never entered into the conception or understanding of the contracting parties.

The decree of the Chancellor is affirmed, and the motion dismissed.

Willard, A. J., and Wright, A. J., concurred.