137 N.W. 411 | N.D. | 1912
There is no dispute regarding the facts in .this case. Prior to 1906, one Targeson owned a tract of land in Benson county,
This court, under similar facts, has repeatedly held that the vendee is the equitable owner of the land, while the vendor holds the legal title as security for his claim. In other words, the parties to this suit are in practically the same position as though Targeson had deeded the
With this principle in mind it is easy to decide that Spalding took the interest acquired from Targeson, which we have seen to be practically a mortgage, free from the lien of plaintiff. Later on Spalding acquired a further interest in the land upon the abandonment to him by Haney. This last-acquired interest, however, was taken subject to plaintiffs’ lien. Hpon acquiring the legal and equitable titles to the land, Spalding became the absolute owner, subject to the lien of plaintiff and other possible lien holders. The two titles did not merge so as to allow those liens to become a first lien upon the land. See May v. Cummings, 21 N. H. 281, 130 N. W. 826, and cases cited. The recital in the deed, to the effect that Spalding took the land subject to the liens of record, and his oral agreement with Targeson to the same effect, amount to nothing more than a release to T. of the recitals of a clear warranty, and show plainly that it was not an outright sale of the land, but rather a sale of the mortgage for the purchase price. It certainly does not amount to an agreement that Spalding would pay those liens to obtain a first lien upon his own land. So, also, was the agreement between Haney and Spalding to the same effect. The lumber company was no party to these agreements and in no position to urge a promise of Spalding to pay, if it be conceded that he so agreed.
The position of the parties seems to be this: Spalding has a mortgage lien for the amount due upon the Haney contract. Next he is the owner of two liens against Haney’s equity bought by him; and then .comes the lien of the plaintiff. After .all these comes the interest of Spalding acquired from Haney when he surrendered his contract. If plaintiff wishes to enforce his lien in this order he may do so, and upon acquiring Haney’s interest in the contract may redeem from Spalding by paying him the amount due up oil the Haney contract and the two assigned liens.
„ This being the decision of the trial court, such decision is affirmed.