90 Mass. 536 | Mass. | 1864
The bill sets out a case which clearly entitles the plaintiff to equitable relief. The rule is perfectly well settled, that a party may by express agreement create a charge or claim in the nature of a lien on real as well as personal estate of which he is the owner or possessor, and that equity will establish and enforce such charge or claim, not only against the party who stipulated to give it, but also against third persons, who are either volunteers or who take the estate on which the lien is agreed to be given, with notice of the stipulation. Such an agreement raises a trust which binds the estate to which il relates ; and all who take title thereto, with notice of such trust can be compelled in equity to fulfil it. Legard v. Hodges, 1 Ves. Jr. 477. Roundell v. Breary, 2 Vern. 482. Power v Bailey, 1 Ball & Beat. 49. Gardner v. Townsend, Coop. Eq Cas. 303. Wellesley v. Wellesley, 4 Myl. & Cr. 561. It is ob. vious that the law gives no remedy by which such a lien can bo established, and the trust thereby created be declared and enforced. Equity furnishes the only means by which the property-on which the charge is fastened can be reached and applied ti the stipulated purpose.
On looking at the agreement set out in the bill, there is no room for doubt as to the intent of the parties to give to the plaintiff a claim on the lands therein described, as security for the money which they stipulated to pay to him. The agreement is not only that he shall have an interest in the proceeds of the sale of said lands, if the same should be sold, of a certain amount of stock in a joint stock company, if one should be formed, for the amount which they agreed to pay, but it is expressly stipulated that the amount due to him, “ whether of cash or stock, is to be a charge on the joint estate of the parties, in proportion to their respective interests,” to the extent of five thousand dollars, and the residue of the sum, being fifteen hundred dollars, “ is to be a charge on the separate estate ” of one of the parties. It is difficult to see bow an intent to create a lien on the lands named could be more clearly expressed. The precise form in which the plaintiff may be entitled to relief cannot be determined, until the case is heard on its merits. The only order which we can now properly make is. Demurrer overruled.
