176 Ky. 61 | Ky. Ct. App. | 1917
Opinion of the Court by
Affirming as to R. E. Grace and reversing as to W. W. Berry.
R. E. Grace and E. C. Phelps were the owners of a house and lot in the town of Barlow. They exchanged the house and lot for a small farm owned by Nat L. Miller. The house and lot were valued at $2,000.00 and the farm at $2,400.00. There was a $1,000.00 mortgage on the farm. Grace and Phelps paid Miller the sum of $400.00 and to secure .themselves against the mortgage lien on the farm retained a lien on the house and lot. Thereupon; Nat L. Miller made a deed to Grace and Phelps. Subsequently Nat L. Miller entered into a written contract with T. A. Miller, whereby he agreed to convey the house and lot to T. A. Miller in exchange for ten acres of land belonging to T. A. Miller, and situated in McCracken county. The latter assumed the $1,000.00 lien on the house and lot and retained a lien on the ten-acre tract for an equal sum. T. A. Miller then sold the house and lot to W. W. Perry, who agreed to assume the payment of the $1,000.00 lien in favor of Grace and Phelps, and to execute his note for $1,000.00, the balance of the purchase price. To avoid the expense of recording the numerous transfers, Grace and Phelps conveyed the house and lot in Barlow to W. W. Berry by deed bearing the same date as their original deed to Nat L. Miller; the deed reciting a consideration of.“One dollar in hand paid, the receipt of which is acknowledged, and one note for $500.00 of even date due and payable on May 7th, 1914, and one note for $500.00 of even date therewith due and payable Mav 7th, 1915, each note to bear interest at the rate of 6% until paid.” At the same time, Berry executed to T. A. Miller a note for $1,000.00, which was not mentioned in the deed to him from Grace and Phelps,
This suit was brought by John IT. Pace to enforce his $1,000.00 lien not only against the house and lot in Barlow, but against the 200-acre tract of land sold in the bankruptcy proceeding to B. E. Grace. On final hearing, the chancellor adjudged that B. E. Grace, who then owned the two $500.00 notes executed by W. W. Berry, was entitled to a lien on the house and lot to secure their payment. He further adjudged that Pace was not entitled to a lien either on the house and lot or on the 200-acre tract of land, and awarded the house and lot to W. W. Berry, as a homestead., From this judgment Pace appeals.
Appellant contends that the sale of the 200-acre tract of land, on which he had a mortgage for $2,000.00, free from all liens and encumbrances, was void as to him, because he was not served with process or otherwise notified of the proceedings so as to afford him an opportunity to oppose the sale of the property. It appears,- however, from the stipulations of the parties that the referee, on June 2, 1914, issued a combined notice and order of sale of the 200-acre tract of land, free from any and all liens and encumbrances, to take place at the court house door in Wickliffe, Kentucky, on June 29,1914; that on the day| of the sale appellant filed exceptions and objections to' the sale, and on the same day his attorney withdrew his objections. It further appears that appellant and his
When we come to consider appellant’s right to a lien on the house and lot, a different question is presented. Section 2358 of the Kentucky Statutes is as follows:
“Liens for purchase money — recital in deed. When any real estate shall be conveyed, and the consideration, or any part thereof, remains unpaid, the grantor shall not have a lien for the same against bona fide creditors and purchasers, unless it is stated in the deed what part of the consideration remains unpaid.”
While this section provides that the grantor shall not have a lien for any portion of the consideration remaining unpaid as against bona fide purchasers and creditors, it is the established rule in this state that, as between the vendor and vendee, the vendor, in the absence of an agreement to the contrary, has a lien for the unpaid portion of the purchase money, although it does not appear from the deed that any part thereof remains unpaid. Ross v. Adams, 13 Bush 370; Tate v. Hawkins, 81 Ky. 577; Brown v. Ferrell, 83 Ky. 417; White v. Taylor, 107 Ky. 20, 52 S. W. 820. In view of the fact that the deeds from Grace and Phelps to Nat L. Miller, and from Nat L. Miller to T. A. Miller were not put to record, but the final transaction was consummated by a deed from Grace and Phelps to W. W. Berry, we conclude that T. A. Miller was, in effect, the grantor of W. W. Berry, and the evidence failing to show any agreement by which T. A. Miller was not to have a lien on the house and lot, he was entitled to a lien thereon as between him and Berry for the $1,000.00, which represented the portion of the purchase price going to him. That being true, Pace, the assignee of the note, acquired the same lien.
It is not clear from the judgment whether the chancellor, in adjudging Berry a homestead in the house and lot, intended merely to give effect to the action of the bankrupt court, or to hold independently of that action that Berry was entitled to a homestead, but, in either
However, there is no merit in the contention that appellant’s lien is of equal dignity with that of Grace. If the numerous trades had been carried out as originally intended, they would have resulted as follows: Grace and Phelps would have conveyed the house and lot to Nat L. Miller and have retained a lien thereon for $1,000.00; Nat L. Miller would have conveyed to T. A. Miller, who would have assumed the payment of this lien; and T. A. Miller would have conveyed to W. W. Berry, who would have assumed the same lien and executed his note to T. A. Miller for $1,000.00, thereby making the lien to secure the latter note subordinate to the lien retained by Grace and Phelps. To save the expense of the numerous transfers, Grace and Phelps conveyed direct to Berry, reserving a lien on the property to secure the two $500.00 notes which Berry executed in lieu of their original lien which both he and T. A. Miller had agreed to assume. At the same time, Berry executed the $1,000.00 note to T. A. Miller, which was not secured by any lien or mentioned in the conveyance. Since Grace and Phelps would have had a lien superior to that of T. A. Miller if the transaction had been carried out as originally intended, and since they did nothing to waive this right, but, on the contrary, reserved in the deed to Berry a lien to secure the payment' of the two $500.00 notes, which he executed in lieu of their original lien, which both T. A. Miller and Berry had agreed to assume, it is clear that T. A. Miller’s lien to secure the purchase money note for $1,000.00, executed to him by Berry and
Judgment affirmed as to R. E. Grace and reversed as to W. W. Berry, and cause remanded with directions to enter judgment in conformity with this opinion.