Richardson v. Bowman, 40 Miss. 782

Richardson v. Bowman

40 Miss. 782 | Miss. | 1866

HARRIS, J.,

delivered tbe opinion of tbe court.

Tbe point submitted for our decision in this case is, whether the vendor of leasehold estate in lands, has an equitable lien on tbe estate in tbe bands of tbe purchaser, for tbe unpaid purchase-money.

"We are unable to discover any reason why the general rules applicable to tbe sale of real estate should be made to depeud on tbe gucmtity of interest which tbe vendor has in tbe land. The principle upon which courts of equity have proceeded in estabbsbing this lien, in tbe nature of trust is, that a person *784wbo has gotten the estate of another, ought not in conscience, as between them, to be allowed to keep it, and not to pay the full consideration-money. 2 Story’s Eq. Ju., page 666, section 1219. And Judge Story further says, that by the Roman law, from which the doctrine had its origin, it was equally applied to movable as to immovable property; and the close analogy, if not the absolute identity, of the English doctrine of the lien of the vendor with that of the Roman law of privilege, on the same same subject, seems to demonstrate a common origin; although in England the lien is ordinarily confined to cases of immovables.

Sir Edward Sugden, in his treatise on vendors, 2d volume, page 62, says: When a vendor delivers possession of an estate to a purchaser, without receiving the purchase-money, equity, whether the estate be or be not conveyed, and although there was not any special agreement for that purpose, and whether the estate be freehold or copyhold, gives the vendor a lien on the land for the money; and he subsequently cites and comments on the case of Elliott v. Edwards, at page 72, cited from 3 B. & P. 181, where the vendor had assigned a leasehold estate to the purchaser, upon payment of part of the purchase-money ; and Lord Alvanly was of opinion that the vendor had an equitable lien. No question, however, is made either by Mr. Sugden or by Lord Alvanly, as to whether there was any distinction in this respect between the sale of land and the assign ment of a leasehold interest therein.

The case of Matthew v. Bowler, 31 Eng. Ch. R., page 110, was a case of the sale and assignment of a life interest in leaseholds ; and it was held, that the vendor was entitled to a lien on the life estate in the leaseholds, which was the subject of the assignment, for the weekly payment to the purchaser covenanted to be made.

These are the only cases, or dieta, which have been cited by counsel, or which we have been able to find, where the question has occurred.

Perceiving no reason for the distinction set up, we think the demurrer should have been overruled.

*785For tbis error, let the decree be reversed, and cause remanded for further proceedings.