3 Indian Terr. 555 | Ct. App. Ind. Terr. | 1901
The appellant has filed two specifications of error, as follows: ‘‘First. The court erred in sustaining the demurrer, and létting it relate back to the complaint of plaintiff, dismissing that part of plaintiff’s complaint which asked for a lien upon the purchase price. Second. The court erred in holding that no lien existed or could exist in the Cherokee Nation upon improvements situated upon Cherokee [lands owned by one citizen of the Cherokee Nation and sold to another citizen of the Cherokee Nation by said citizen. ” It appears from the answer filed by appellees (defendants below) that the purchase of the improvements was made by J. L. Newton, one of the defendants, as the agent of his wife, Sidney Newton, and with funds belonging to his said wife, and that the bill of sale made by the plaintiff was, by direction of said Sidney Newton, made to William and Walter Newton, children of defendant J. L. Newton and his said wife; that the defendants W. D. Mitchell and G. W. Ward were sureties for said J. L. Newton on the said $600 note sued upon; that the plaintiff was paid $1,200 in cash, and was given the note sued upon for the balance of the purchase price of said improvements. But the defendants deny that said improvements were conveyed to them, or either of them. These allegations of the answer are admitted by demurrer of the plaintiff. Under the decisions of Arknasas the vendor unquestionably has an equitable lien for the purchase money, though it is said in Stephens vs Shannon, 43 Ark. 464, that ‘ ‘a vendor’s lien upon the land is not an estate in the land, but is a charge or right which has its inception only on bill filed. ” The lien is not confined to a legal title or title in fee. It applies to leaseholds, and appears to be received as to all recognized titles. It arises in favor of one who has merely an equitable interest. ‘ ‘It attaches to a
Thus, if land is bought by one as the agent of another, and a conveyance is made to the principal, the real purchaser, and the vendor accepts the obligation of the agent for the unpaid purchase money, he will waive his lien as vendor.” In Andrus vs Coleman, 82 Ill. 26, 25 Am. Rep. 289, the court says: ‘ ‘The question is whether appellant waived his right of lien as vendor when he conveyed the land to the appellee, Martha J. Coleman, having taken her husband’s warranty deed for certain lands in Kansas in part payment, and his individual note to secure the payment of the residue of the purchase money. We consider that appellant, having conveyed to appellee, is estopped from questioning her title. He did this knowingly and voluntarily, and it is too late now to say that the title in fact belonged to the husband, with whom he contracted. This is ample recognition of his knowledge of the husband being the agent for the wife in the transaction, as she swears he was; and therefore, when he accepted his covenants of warranty for the Kansas lands, and his individual note for the residue of the purchase money, he knew that he was relying on the obligations of a person other than his grantee for payment of the purchase money.” The demurrer to the answer in the case at bar admits that J. L. Newton was agent for his wife. Besides, two other defendants, strangers to the transaction, were on the note with him. As to the first assignment of error-, it is only