9 Mich. 39 | Mich. | 1860
Under a bill to establish and enforce a vendor’s lien, it is necessary that the contract of purchase, both as to consideration and terms of payment, should be clearly ¡noven, in order that the court may compel the execution of the agreement of the parties, and not one of its own creation. In the present case no contract is set out in the bill, nor proven by witnesses. Even admitting that the consideration for the sale by the complainant to the defendant was $900, we have no allegation or proof of any contract for its payment, or the times, terms, or instalments upon and in which such payment should be made. What then can we declare the contract to be, or how can we enforce any hen for that of which we are ignorant ?
J. W. Mowrey’s testimony certainly does not corroborate Mrs. Johnson’s, for he testifies to a different contract, made at a different time; while if his testimony be regarded as corroborated Ify Charles Mowrey’s, then the complainant has no standing in court, for he has neither alleged such a contract in his bill, nor shown a refusal on the part of the defendant to “work out” the balance. He can not enforce a lien before a breach of contract has occurred.
But it is urged that the recital in the deed of nine
The decree of the court beloiv is affirmed, with costs.