27 Ill. 431 | Ill. | 1862
The question in this case is, whether the vendor’s lien for the purchase money of land, passes to the assignee of the note given for the purchase money, by the simple assignment of the note, so that the assignee of the note can enforce it in his own name and for his own benefit.
The vendor’s lien arises from principles of equity alone, and finds no foundation or support in the principles of the common law, or our statute. Courts of equity have created this lien independent of any express contract, upon the mere supposition of the intention of the parties, and whenever from any circumstance, the court can infer that the vendor did not rely upon this lien, for his security, the courts have treated it as waived. Thus the taking of any security, either personal or material, or the neglect to enforce the lien for a considerable time, though short of the time prescribed by the statute of limitations, has been considered as a waiver of the lien. Conover v. Warren, 1 Gilm. 498; Trustees v. Wright, 11 Ill. 603. This species of incumbrance upon real estate has never been looked upon with favor in this State. It is a secret lien, not spread upon the records, which the policy of our law designs should exhibit the true condition of the title to all real estate; and not even resting in any contract or agreement, either in writing or parol. In the first case cited, this court said: “ These equitable liens on real estate are generally unknown to the world, and frequently operate injuriously on the rights of creditors and purchasers, and ought not to be enforced, but in cases where the right is clearly and distinctly made out.” And again, in the last case, it is said:
“ These secret liens on real estate, because generally in point of fact—however it may be in legal contemplation—unknown to the parties to be affected by them,- are often productive of much injustice, and ought not to be encouraged.” We ought not, therefore, to extend this lien beyond the requirements of the settled principles of equity law. In the common law, it has no existence. In England, where it was first created by' the court of chancery, acting upon the conscience of the vendor, as it professed, the vendor’s lien has never been held ¡ assignable in any way by the vendor, although it is held to j pass by devise or descent. The right of this lien is confined to the person of the vendor alone, and the apparent exceptions J above stated, are not in fact exceptions, for they are common attributes of nearly all personal rights, except those springing from torts. In Maryland, this question is discussed with much Í learning, by Chancellor Bland, in Iglehart v. Armiger, Bland Ch. R. 519; and the right is held not to pass to the assignee of the note given by the vendee, for the purchase money. And in the same way was the question decided in Briggs v. Hill, 6 How. Miss. R. 362; and so by Chancellor Walworth, in White v. Williams, 1 Paige, 501. And the Supreme Court of Ohio, in Bush v. Kinsley, 14 Ohio, 20, held the same rule, although they held that the lien was not absolutely extinguished by the assignment of the note, where the liability of the vendor continued upon the note, by reason of the indorsement, but was in a sort of abeyance and might be revived by the vendor, after he should have paid the note on his liability as indorser. Kentucky alone has held a different rule, so far as our researches enable us to judge. See Thomas v. Wyatt, 5 Monroe, 132. The case of Eskridge v. M'Clure, 2 Yerger, 84, is not a case in point, for there the lien was created by a written memorandum at the bottom of the note, declaring that the land should be held as security, for the payment of the note. This was in fact a written mortgage and was of course assignable, and was an incumbrance widely different from this secret, intangible, vendor’s lien, which springs up without bargain and without promise, and very frequently, no doubt, without any intention or even suspicion of either party, at 'the time of the original transaction, but is the fruit of the will of the chancellor. We are satisfied, that the law does not authorize the vendor to transfer this lien with the note, taken for the purchase money, even though he expressly professes to do so, and we are not inclined to make a law to enable him to do so.
The decree must be affirmed.
Decree affirmed.
