1 Iowa 23 | Iowa | 1855
This is an application to enforce what is technically termed a vendor’s lien. Under our law, where so much strictness is required, with regard to placing on the appropriate records evidences of liens and incum-brances, it would seem that in the absence of fraud, courts should be careful in the recognition of this lien. And yet, there'is much of good conscience, equity, and natural justice, in providing that the vendor shall not be regarded as. having lost all dominion over his property, until he is paid ■the agreed price. This lien or trust, though formerly objected to, as being in contravention of the policy of the statute of frauds, and for other reasons, is now firmly established. Its necessity is, indeed, too apparent — the beneficial conséquences too clear — and its equitable existence toa well sustained — to need now either authority or reason ta prove its origin or design.
Our courts have, however, gone still further in recognizing these claims. In the case of Marshall and Whitesides v. Bush, Morris, 275 (afterwards approved in the Supreme Court of the United States, see 6 Howard, 284), it was held, that where A. has a pre-emption right to a lot of land belonging to the United States, sells the same to B., and takes a mortgage to secure the payment of the consideration money ; if B. afterwards purchased the same lands from the United States at public auction, and thus prevents A. from
But notwithstanding tbe principle recognized in these cases, it is claimed tbat none of them go to tbe extent of recognizing tbe right of tbe vendor of a claim, or pre-emption right, in tbe absence of an express mortgage, to a lien on tbe land, subsequent to tbe obtaining of tbe patent. This vendor’s lien, it must be borne in mind, however, is an equitable mortgage, and does not contemplate any writing to evidence it. A trust estate is created by tbe contract, whereby tbe purchaser becomes tbe trustee, and tbe vendor tbe cestui gue trust.. Tbe payment is a part of tbe contract, and upon this, and tbe ground of good conscience, this equitable trust rests. This equitable lien, it is admitted, follows tbe property sold into tbe bands of tbe heirs, and even future vendees with notice. Tbe authorities and text books speak of it, as applied to both freehold and copyhold estates, and even as applied to such “preemption” rights, as is set up in this bill. See 2 Sug-den on Yendors, 57, and authorities hereafter cited. To our minds, we are free to say, it appears anomalous tbat tbe vendor of such a claim can follow tbe lands after tbe vendee has procured tbe government title, and enforce bis lien. And but for tbe strong tendency of tbe cases above cited in our own state, and a decision made by tbe Supreme Court of tbe United States, which is entirely conclusive on this subject, we should not so bold. We allude to tbe case of Thredgill, Admr. of Goodlove v. Pintard, 12 Howard, 24.
Pierson, in this case, then had an- interest in these premises, which was the subject of transfer, and when sold, he had a right to his lien on the land for the money. See, as to the character of this pre-emption right or estate, Bush v. Marshall and another, 6 Howard, 284.
This view disposes substantially of many of the points made by this demurrer, but we will now proceed to examine them more in detail. It is claimed, that petitioner could only have had a pre-emption right to one tract of land, and he does not aver which that was. If the lands were contiguous, or part of one entire claim, what was there to prevent his pre-empting both pieces as one claim? But ,he avers that defendants, upon the strength of his pre-emption right, were allowed and enabled to pre-empt this land. If so (and the demurrer admits it), then they are estopped from saying that his title was bad, for that reason, in the absence of fraud. O'Farrell v. Davis, above cited. The third and fourth causes are disposed of by the doctrine laid down in the case above referred to, in 12 Howard. It is there held, that such sale’s are not illegal, and that Pierson did not forfeit his claim to be compensated for his pre-emption right. The fifth cause, we do not think well taken. The plaintiff claims against defendants, who have a common interest in the subject matter of the bill, and while David purchased at one time, and David and Cameron at another, and though their titles might be distinct, still it is proper to make them all
The question arising on the statute of limitations, will next be examined. ’ And here the appellant claims, that this de-fence cannotbe set up by demurrer, but must be pleaded. The decision of this case does not necessarily involve this question, but as it is urged, we will dispose of it. We think the rule is now well established, that where upon the case stated in the bill, the complainant, by reason of lapse of time, and laches on his part, is not entitled to relief, the defendant may demur. The rule was formerly otherwise, and was so laid down by Lord Thurlow, in the case of Deloraine v. Browne, 3 Bro. Ch.Rep. 646. And this rule was followed for some time afterwards. If this defence was founded alone on the presumption of payment, arising from lapse of time, then, a the demurrer admits the bill, and thereby admits the debt to be still due, it would seem correct to raise it alone by plea. But a court of equity requires parties to be diligent in the assertion of their claims, as well as. good faith; and if either is wanting, it will withhold its aid. And upon this basis, Lord Redesdale, in the case of Hovenden v. Annesly, 2 Sch. & Lefr. 638, says : “ If the case of the plaintiff as stated in the bill, will not entitle him to a decree, the judgment of the court may be required, whether the defendant ought to be compelled to answer the bill.” And the Supreme Court of the United States, in the case of Weaxwell v. Kennedy et al., 8 Howard, 310, held, that this is the true rule, and that it applies with equal force to a case barred by lapse of time, as to one barred by the statute of limitation. See also, Piatt v. Vattier, 9 Pet. 416; Bowman et al. v. Walter et al., 1 Howard,
The question then remains, does this bill show affirmatively that this complainant, for this reason, is not entitled to relief? We do not propose, at this time, to examine how far courts of equity are governed by statute of limitations, especially as applied to trust estates, nor whether, in this case, there is such a continuing, direct and technical trust, as distinguished from those cases in which there is a legal as well as an equitable remedy, as will take it out of the statute. The question as to how far courts of chancery act in obedience to this statute, will be found open to much controversy; and as it is not necessary to decide it now in this case, we pass it until it shall be presented. The objection, in order to be made by demurrer, must appear affirmatively, as already shown. Story’s Eq. PI. section 484, and authorities there cited. This bill does not show, however, that six years had elapsed from the time of the maturing of the demand to the bringing of the suit. It is averred, that Wilson was to pay the money when he entered the land, and that Cameron and 'David promised to pay this sum, about the time of their purchase and subsequently. These averments are admitted by the demurrer. It is not shown but that this land was entered, and these promises made, within one year or one day before the filing of the bill. The want of this definitiveness, may make the pleading subject to the charge of uncertainty, but for the purposes of this question, that can make no difference. All the authorities will show, that it is only where the true time is raised by the bill, that a demurrer will reach the objection. The bar does not appear affirmatively, and the demurrer for this cause, is overruled.
One question only remains, and that is, should the complainant aver that the purchase money cannot be made from Wilson? We think not. We are aware that much
"We think the court below erred in sustaining this demurrer. The cause will be remanded, with leave to the defendants to plead or answer over.
Decree reversed.
Upon the reversal of the decree of the District Court, the appellant filed a motion for a final decree in this court, on the ground that in all chancery capses, where once the appellate court obtains jurisdiction, it must finally dispose of the cause, and cannot re-invest the District Court with jurisdiction.
The motion is overruled ; First. Because by sections 1555, 1556, 1557 and 1989 of the Code, appeals are contemplated from intermediate orders in all cases, and proceedings on the trial in chief in the District Court are not necessarily delayed. Second. Eor aught we know, the respondent did answer in the court below, and the cause may be there at issue, after the disposal of the demurrer. The demurrer and answer may be filed at the same time, and only part of the record need be brought here. Code, sections 1788,1739 and 1976. So that, as to the cause in chief, the District Court has not been divested of its jurisdiction, and therefore this court does not have to re-invest it therewith. Third. No law or authority is shown to sustain this motion, and, in the absence of express provisions, we should be unwilling to deprive a party of a further hearing in such cases. Fourth. The order here made is in accordance with the practice of this court. De Louis v. Meek, 2 G. Greene, 55; Austin & Spicer v. Carpenter, 2 Ib. 132 ; Franklin Fire Ins. Co. v. J. L. McClure et al.; Gilliss v. Mathews, decided June term, 1854.
Motion overruled.