20 Iowa 440 | Iowa | 1866
The doctrine of vendor’s lien had its origin long prior to the system of registration and the constructive notice resulting therefrom. And it is said by the learned editors of Leading Cases in Equity (vol. 1, p. 375), that “ there can be little doubt that this principle of an implied lien for purchase-money has no just application in a country where every debt may at once be made a lien by a judgment, and where debts generally are alien on the lairds of a decedent.” And in view of the fact that some of our American States have adopted, while others have rejected, the doctrine, the same learned editors remark: “ That the courts of those States which have wholly expelled the doctrine, have exhibited a more accurate appreciation of its nature and purpose than those which have retained it.”
Whether the doctrine shall obtain in this State, has not been directly determined by an adjudication involving the question of vendor’s lien, independent of the express lien resulting from the title bond or otherwise. The following cases are cited as containing some reference to the doctrine, and a recognition of it to a limited or certain extent. Pierson v. David, 1 Iowa, 23; Crow, McCreary & Co. v. Vance, 4 Id., 434; Blair & Co. v. Marsh et al., 8 Id., 144; Rakestraw v. Hamilton, 14 Id., 147; Baldwin v. Thompson, 15 Id., 504; Kephart v. Butcher, 17 Id., 240. It may, therefore, be regarded as still, to a great extent at least, an open question; and it is one which we are not required to settle, in order to determine this case.
Where it appears that a note or bond was substituted (and accepted as and) for the consideration money, the lien will be lost. Mackreth v. Symmons, supra. An agreement though by parol, to accept a security and rely upon it alone, will discharge the vendor’s lien for unpaid prrrchasemoney. 1 S. & S., 445. Where an express lien is reserved or taken for a part of the purchase-money, no vendor’s lien will exist as to the balance. Bond v. Kent, 2 Vern., 281. Where a vendor has taken an express lien for the purchase-money and afterwards surrenders the same, no implied lien will.be recognized. So also the personal estate must be first exhausted. Mackreth v. Symmons, 1 Lead. C. in Eq., 336, et seq., and English and American notes and authorities cited; Sugd. on Vend., 886.
Applying these rules to this case we have no difficulty
Affirmed.