225 Ill. 326 | Ill. | 1907
delivered the opinion of the court:
The aid of equity is invoked by this bill to enforce the claim under a vendor’s lien alleged to have arisen from a failure to carry out the contract under which the exchange of property was made, and also for alleged fraudulent misrepresentations inducing the exchange of real estate. Appellants insist that if any of their allegations are sufficient to entitle them to a vendor’s lien, thereupon equity, having thus taken jurisdiction of the cause for the purpose of enforcing those items, will, in order to do justice between the parties, take jurisdiction of all matters germane to the transaction, even though such matters, standing alone, might not be such as could be enforced under a vendor’s lien.
The facts averred in .the bill must in themselves state a good cause of action. “The demurrer only admits that which is well stated or pleaded.” (Stow v. Russell, 36 Ill. 18.) The allegations of the bill, as set forth heretofore in the statement, wifh reference to the lease that was executed to Stephens, do not clearly show that the responsibility for the $400, or thereabouts, alleged to be due as a part of the purchase money on account of this lease, rests upon appellees. So far as .the pleadings show, Stephens may have been accepted as a responsible tenant by appellants after the exchange of the deeds in August, 1903. The representation that appellees are responsible for the $400 rent alleged to be due here, as a part of the purchase money, is purely a legal conclusion, .the sufficiency of which the demurrer does not admit. The allegations that certain other rents due were part and parcel of the purchase money, and that the damage for decorations and for renting a certain flat, and for heating the same, would amount to $100, and that suitable vases to be placed at the entrances of the flats would cost $150? and that all these amounts should be considered a part of the consideration money, are conclusions of law by the pleader and are not admitted by the demurrer. Johnson v. Roberts, 102 Ill. 655; Canal Commissioners v. Village of East Peoria, 179 id. 214.
A vendor’s lien, in general, is viewed with disfavor, having arisen in times whose peculiar conditions and institutions were alien to our own. It is from its nature secret and unknown to the world,—often productive of harm. (29 Am. & Eng. Ency. of Law,—2d ed.—-737; 2 Warvelle on Vendors,—2d ed.—par. 679.) This court has therefore frequently held that the rights under such a lien ought not to be enforced except where they are distinctly and clearly made out; that they should not be extended beyond the requirements of the settled principles of equity. (Cowl v. Varnum, 37 Ill. 181; Boynton v. Champlin, 42 id. 57; Doolittle v. Jenkins, 55 id. 400; Lewis v. Shearer, 189 id. 184.) The vendor’s or grantor’s lien is only permitted as security for unpaid purchase money, which must be a certain, ascertained amount. The lien does not exist in behalf of any contingent, uncertain or unliquidated demand. (3 Pomeroy’s Eq. Jur.—2d ed.—par. 1251.) This doctrine has been quoted with approval in Koch v. Roth, 150 Ill. 212, as has also the rule laid down by Devlin on Deeds, (2d ed. sec. 1256,) that “the vendor cannot claim a lien for security for an uncertain demand.” Perry on Trusts (5th ed. sec. 235,) holds that “no lien will arise * * * if the amount of .the consideration is uncertain and unliquidated.”
Under these authorities the claims for damages on account of unpaid rent and for decorating and heating, which were manifestly uncertain and unliquidated, cannot be enforced under a vendor’s lien. While it is true that specific articles of personal property may be substituted for cash as a part of the purchase price, yet if they are not delivered, in order to have a vendor’s lien for the amount they must in the contract have an agreed pecuniary value. (2 Jones on Liens,—2d ed.—sec. 1072; 2 Warvelle on Vendors,— 2d ed.—sec. 690; 29 Am. & Eng. Ency. of Law,—2d ed.— 744.) Such value was not fixed in the contract for the vases and cannot legally be inferred from the pleadings. It has been held .that a vendor who has taken other lands with covenants of warranty of the vendee is deemed to have waived his lien, and that the acceptance of the deed of other lands in payment for a part of the purchase price is a waiver of the lien, although the title to such other lands appears to be bad. (2 Jones on Liens,—2d ed.—secs. 1086, 1088.) This court has held that by taking a distinct and independent security for the purchase money the right to a vendor’s lien will be waived. (Chicago and Great Western Land Co. v. Peck, 112 Ill. 408, and cases there cited.) We have also held that any act manifesting the vendor’s intention not to rely upon his lien will operate as a waiver. (Blomstrom v. Dux, 175 Ill. 435.) This court does not appear ever to have had before it the question as to whether the taking of land in exchange will waive a vendor’s lien. On principle it does not differ from the taking of other security on other property.
The misrepresentations as to the amount of rent that could be received from the flats or apartment buildings furnish no ground for equitable relief through the enforcement of a vendor’s lien, but, as the Appellate Court said, “might, if proven, furnish at law a basis for damages in an action for deceit,” or might justify an action to rescind the contract. But this is very different from the relief claimed here, where appellants evidently wish to retain the consideration already received, and, without rescinding the contract in any way, obtain damages for the property exchanged. The Supreme Court of Michigan, in discussing a similar question in Graham v. Moffett, 119 Mich. 303, held that such a ruling would “revolutionize the doctrine of rescission, which requires a party to rescind a fraudulent contract in toto or affirm it as made.”
The amount for which a lien is here claimed as an unpaid portion of the purchase price for the lots is in every instance, according to the allegations of the pleadings, obviously uncertain and unliquidated. It may range anywhere from a few hundred dollars to many thousand dollars. Under no decisions in this State or any well considered authority in other jurisdictions would we be justified in enforcing a vend- or’s lien for such uncertain and indefinite claims.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
