36 F. 858 | Cir. Ct. Del. | 1888
This suit' is brought to establish and enforce a vendor’s lien on certain lands, with an iron foundry erected thereon, in the city of Wilmington, now owned by the defendant Morris. James H. Rice, ■the complainant, and John V Rice, one of the defendants, on the 10th of September, 1864,. were copartners in the business of iron founders at ■the foundry aforesaid, and seized in fee of said lands; and on that day James H. Rice and John V. Rice, by an agreement and indenture in writing under their hands and seals, dissolved their partnership, and James sold to John the undivided part and share of James “in the joint trade and of all the property, goods, wares, merchandise, money, debts, and effects thereto belonging, or in anywise appertaining, or in which the said James H. Rice has any. right, title, or interest by virtue of said copart-nership, and all the right, title, and, use of James H. Rice of, in, and to the said cápital, joint stock, property, effects, money, and debts, and any and every part thereof, and all the profits, gains, and proceeds thereof;”
“West Chester, September 10th, 1864.
“Ten years after date wre promise to pay to James H. Rice five thousand dollars, without defalcation, for value received, su¡ ject, however, to the conditions expressed in the article of agreement between James H. Rice and John V. Rice, bearing this date.
“$5,000.00. [Signed] J. Y. Rioe,
“TlIEO. IT Y ATT.”
Seven months afterwards, on the 10th of April, 1865, James conveyed the said real estate to John, by a deed of bargain and sale, for the consideration of $5,000, the receipt of which sum is duly acknowledged. The complainant says that this deed was prepared for execution at the time of making the agreement of dissolution of partnership, and as part of that transaction, but was not in fact executed until the day of its date. Within less than two years and a half after the execution and delivery of this deed, the defendant John V. Rice borrowed from the defendant Morris several sums of money, to secure the payment of which ho gave to Morris three several mortgages on the foundry property, as follows: one dated February 6, 1866, for $12,000; one dated September 22, 1866, for §3,000; and a third, dated September 2, 1867, for $10,000, all of which mortgages were duly recorded. On this last mortgage Morris recovered a judgment, on a writ of scire facias, in the superior court of Delaware, for New Castle county, at the November term, 1875, against John V. Rice and wife, and under a writ of levari facias to the May term. 1876, on said judgment, the sheriff sold the property described in the mortgage to the defendant Morris, for $3,100, subject to the first two mortgages. The sale was confirmed by the court, and the sheriff, by deed, dated June 6, 1876, conveyed the property to Morris, who still owns it. The complainant alleges that Morris accepted the three mortgages, and afterwards became the purchaser of the real estate, with full knowledge and notice that the consideration money, and its interest, .for which the complainant had convoyed the property to John V. Rice, had never been paid, and therefore took and holds the property subject to aii equitable lion in favor of the complainant for the unpaid purchase money and interest; that John V. Rice is insolvent, and the complainant without remedy, except by enforcing said lien. The bill does not allege that the vendor’s lien was expressly reserved, but claims that it exists
The English doctrine of the vendor’s equitable lien for unpaid purchase money, upon an absolute conveyance of land, is adopted in some of the states, rejected in some, and remains undecided or doubtful in others. It is-conceded that unless this doctrine is in force in Delaware this court cannot recognize and apply it in the present case. It is also admitted on the part of the complainant that, so far asjudicial decisions have gone in Delaware, the question is an open one. In Budd v. Busti, 1 Har. (Del.) 69, the question of the existence of the lien was directly made to the court of appeals, and appears to have been the only one argued by the able and learned counsel who took part in the discussion. The whole law relating to the subject was brought under review, and, after a full consideration, a majority of the court were disinclined to accept the doctrine as a part of the law of Delaware. The court below had decidedly refused to recognize it. This was in 1833, and, so far as we are informed, no application to enforce this lien has been made to the court of chancery of Delaware from that day to this. In Godwin v. Collins, 3 Del. Ch. 199, to a bill for the specific performance of a contract for the sale of land, the defense was made that the payment of the purchase money was not in any manner secured to the vendor, to which it was replied that he was made secure by the vendor’s lien. In referring to this, Chancellor Bates said:
“This, if true, would anrord only a precarious security, since the vendor’s lien does not follow land into the hands of a purchaser for value without notice. But whether what is known in England as the ‘ vendor’s lien,’ is recognized here, remains in doubt since the case of Budd v. Busti, in the court of errors and appeals. In that cáse, though the decision went upon other grounds, a majority of the judges expressed opinions decidedly adverse to the recognition in this state of a vendor’s lien for purchase money. The policy of our law is against liens not of record, and the necessity for the vendor’s lien is practically superseded by the long-settled and uniform habit of our people to take special securities for unpaid purchase money.”
On appeal the decree in Godwin v. Collins was affirmed. 4 Houst. 28. This last case came down to the year 1869. It has been generally understood that the supreme court of the United States will not consider the
Even admitting the law of England, respecting the lien of vendors for the purchase money after the execution of a deed, to be the law of Delaware, — a point we do not mean to decide, — we think it perfectly clear, on