63 Fla. 608 | Fla. | 1912
It appears that in March, 1903, John N. D. Cloud conveyed certain land to J. L. Cloud, the consideration being $1,100.00, for which a note was given by J. L. Cloud to John N. D. Cloud, payable January 1st, 1905. John N. D. Cloud died in 1904. By will he bequeathed the land and the note to his mother, Nancy J. Cloud, who being a resident of Georgia and non com
A demurrer to the bill of complaint upon the specific grounds of laches, and that the note was barred by the statute of limitations, and, the vendor’s lien being merely an incident to the debt is also barred, was sustained with leave to amend, and the complainants appealed from such order, which is assigned and argued as error.
By Section 1725 of the General Statutes, Section 1294, Revised Statutes, an action upon any contract, obligation or liability founded upon an instrument of writing not under seal must be commenced within five years. This suit is to enforce a vendor’s lien upon land that is raised only by implication of law, and the suit was not commenced within five years from the date of the conveyance of the land or from the date of the maturity of the note not under seal given for the purchase price.
A vendor’s lien upon land conveyed by him does not result from agreement, but it is a right given by implication of law and enforceable in equity while the vendor is entitled to it. See Johnson v. McKinnon, 45 Fla. 388, 34 South. Rep. 272; McKinnon v. Johnson, 54 Fla. 538, 45 South. Rep. 451.
Where land is conveyed and a note is taken for the purchase price without any collateral security or contract mortgage upon the property to secure the payment of
Where in a suit to enforce a vendor’s implied lien it clearly appears by the specific allegations of the bill of complaint admitted by the demurrer, that the remedy for recovery of the debt for the purchase price of land conveyed is barred by the statute of limitations, the vendor’s implied lien will not be enforced; and in the absence of other equities to sustain the bill of complaint, it is subject to appropriate demurrer. See 2 Jones on Liens (2nd ed.), Sec. 1099; 2 Warvelle on Vendors, Sec. 709; 29 Am. & Eng. Ency. Law (2nd ed.) 759; Trotter v. Erwin, 27 Miss. 772; Stephens v. Shannon, 43 Ark. 464; Borst v. Corey, 15 N. Y. 505; Howard v. Windom, 86 Tex. 560, 26 S. W. Rep. 483.
A contrary rule in Maryland seems to be based on analogy to the English statute of limitations ■ as to the right of entry. See Baltimore & O. R. R. Co. v. Tremble, 51 Md. 99. The Alabama cases and possibly others do
The order is affirmed.