Murphree v. Countiss

| Miss. | Apr 15, 1881

Chalmers, C. J.,

delivered the opinion of the court.

Mrs. Newberger sold to defendant, Murphree, a tract of land in Calhoun County, delivering to him an executory agreement, in writing, to make title upoji the payment of the purchase-money, $1,200. No note for the purchase-money was executed, but Murphree held possession of the land. When called upon to pay, Murphree applied to complainant, Countiss, to aid him. At a conference held between Murphree, Countiss, and Mrs. Newberger’s agent, it was agreed that the latter should receive from Countiss as cash certain securities owned by him; that Murphree should execute his note for the purchase-money of the land directly to Countiss ; that Mrs. Newberger, having received the securities turned over by Countiss in full of her demands on the land, should execute a deed to Murphree, who should in turn execute a trust-deed to Countiss to secure the note given to him.

This agreement was carried out, except as to the execution of the trust-deed by Murphree; that is to say, Countiss delivered the securities to Mrs. Newberger, and received at the same time from Murphree a note representing the amount due on the land. A few weeks afterwards Mrs. Newberger, through her agent, delivered to Murphree a deed to the land acknowledging receipt of payment; but the latter, having thus obtained all the benefits of the arrangement, refused to execute the trust-deed, and is personally insolvent.

Such are the allegations of the bill, which is filed for the purpose of subjecting the land to the payment of the note, and to which a demurrer is interposed.

It is iusisted by the demurraut that the bill is an attempt by the lender of money to fasten a lien upon land on the ground that with his money the title has been procured ; and that this cannot be done, is settled by the case of Skaggs v. Nelson, 25 Miss. 88" court="Miss." date_filed="1852-10-15" href="https://app.midpage.ai/document/skaggs-v-nelson-8256442?utm_source=webapp" opinion_id="8256442">25 Miss. 88, even where it has been so agreed between the parties. That decision was based upon two grounds : First, that the vendor of the land, who received his money in full eo instanti with the delivery of the deed, could not be said to have ever had a lien; and, second, that if he did, such lien is not assignable.

But the case at bar is distinguishable from that cited, in the fact that here there was a previously existing executory contract to convey, under which the vendee held possession. It stood, therefore, up,on the footing of a sale by title-bond, and in such case the lien of the vendor is assignable. True, no note was delivered at the date when the executory agreement was entered into and possession taken : but it was delivered, not to the vendor, but to the equitable assignee of the vendor, before the execution of the deed. Between the time of the execution of the note to Countiss and the reception of the deed by Murphree, the latter held the laud under a title-bond, or its equivalent, owing a note for the purchase-price, which by agreement of all the parties had been made payable to Countiss, the assignee of the vendor. Such a lien, being assignable, will not be defeated by a subsequent reception of a deed, so long as the land remains in the hands of the vendee or his grantees with notice. Not only is the lien assignable, but if, after the note in this case ivas executed to Countiss, Mrs. Newberger had without his consent delivered the deed to Murphree, she would be personally liable to Countiss for defeating that lien, if it had been defeated by the sale of the land to an innocent purchaser. Cummings v. Oglesby, 50 Miss. 153" court="Miss." date_filed="1874-04-15" href="https://app.midpage.ai/document/cummings-v-oglesby-7984405?utm_source=webapp" opinion_id="7984405">50 Miss. 153.

Affirmed, and sixty days to answer given.