| Kan. | Feb 15, 1865
By the OouH,
On the 21st day of October, A. D. 1859, Warren Brown, one of the defendants in error, being the owner of certain lots in Leavenworth, conveyed the same to Charles Mundee, another of the defendants in error, by a general
“Know all men by these presents that I, "Warren Brown, of the county of Leavenworth, territory of Kansas, in consideration of a certain promissory note bearing even date with these presents, for the amount of fifteen hundred dollars payable twelve months after date without interest, executed in my favor, by Charles Mundee of the county and territory aforesaid, and in further consideration of the sum of one dollar to me in hand paid by the said Ohailes Mundee, the receipt whereof, I do hereby acknowledge, have bargained and sold and quit-claimed, and by these presents do bargain, sell and quit-claim unto the said Charles Mundee, and to his heirs and assigns forever, all my right, title, interest, claim and demand, both in law and in equity, and as well in possession as in expectancy, in and to all that certain piece of land, situate in the county of Leavenworth, territory of Kansas, and known as lots number seventeen, (II) eighteen, (18) nineteen, (19) and twenty, (20) in block number, sixty-three, (63) according to the original plat of said city of Leavenworth; and all and singular the hereditaments and appurtenances thereunto belonging. In witness whereof, I have hereunto set my hand and seal this 1st day of September 1859.
"Warren Brown, [Seal].”
This deed was not acknowledged, or was insufficiently certified to have been acknowledged. It was recorded in the office of the register of deeds of Leavenworth county, on the 5th day of December, A. D. 1859. A note corresponding with that described in the above deed was executed by Mundee to Brown and delivered on the day the deed was delivered, viz: October 21st, 1859.
On the 3d day of January, A. D. 1860, Mundee mortgaged the above described lots to Simpson, the plaintiff in error, to secure a promissory note of that date for two
About Jrdy 1st., A. D. 1861, Brown delivered to Mundee his note which has since been lost or destroyed, and Mundee returned the quit-claim deed above set out to Brown, when Brown tore his name off it.
At the time Mundee mortgaged the lots, Simpson had no actual knowledge of the deed to Mundee; and at the time the note and deed were returned, Brown had no actual notice of the mortgage to Simpson. The amount of the note of Mundee to Simpson never was paid.
Simpson brought suit in the District Court of Leavenworth county, to foreclose his mortgage. Brown having been made a party defendant, by consent, filed an answer claiming a vendor’s lien upon the premises described in his deed to Mundee, for the amount of the note made by Mundee to him, together with interest;. the said note having been given for the purchase money.
The cause was submitted to tire court for trial, and having found -the facts substantially as set out above, the court found a conclusion of law that Brown had a vendor’s lien upon the property in controversy, and that it was prior to the lien of the mortgage to Simpson.
Counsel for Simpson excepted to the conclusion of law, and made motions for judgment in his favor and for a new trial, both of which were overruled, and he excepted; whereupon judgment was rendered subjecting the property to sale, and ordering Brown’s claim to be first satisfied out of the proceeds.
This proceeding is instituted to reverse that judgment.
Several points were made, the most prominent of which, are:
First. Simpson had no notice that the purchase money had not been paid by Brown to Mundee; and,
Second. Although he may have had such notice, yet Brown had no lien.
In the absence of any statutory provision to the contrary, a deed signed by a man would convey any interest in the land the deed might purport to convey, and although not acknowledged, would be good against him, and everybody claiming under him. The statute of this state requires that the conveyance of any estate or interest in lands exceeding ten years in duration, shall be in writing, signed by the person granting the same, or by his agent authorized in writing so to do. If it be in writing it is sufficient, without acknowledgment to “ affect real estate,” and every person having actual knowledge of such conveyance is bound by it. -
Section 13 of the act regulating conveyances, (Comp. L., p. 355,) provides that, “ no instrument affecting real estate, is of any validity against subsequent purchasers for a valuable consideration, without notice, unless recorded,” &c., by direct implication, declaring that any instrument affecting real estate, shall bo good against subsequent purchasers if recorded. The statute nowhere makes an acknowledgment necessary to the validity of a deed. If it be sufficient to affect real estate without acknowledgment, then it may be recorded, and if it be recorded, then subsequent purchasers are charged with notice. The statute only goes to the extent of providing, that if a deed be acknowledged and certified in the manner prescribed, the original may be read in evidence
The deed from Brown to Mundee having been in fact recorded in the proper office, although not acknowledged, Simpson had notice of its contents.
Second. Admitting that Simpson had notice of the nonpayment of the purchase money by Mundee, did Brown have a lien for the same as against his mortgage % This brings us to- the consideration of a very important question in our jurisprudence; one involving large interests, and for the first time presented to this tribunal. Having given the subject a careful examination, and having bestowed upon the general question much reflection, we can appreciate the earnestness of counsel in the maintenance of the doctrine of a vendor’s lien, and although it would be gratifying to us to be able to follow the apparent weight of authority, yet in this instance we cannot in conscience do so.
Stripped of all verbiage, the naked question is: When the conveyance is absolute on its face, has the grantor in this state a lien on the land for the unpaid purchase money ?
The higher courts of England have sustained the claim for a lien, but they have done so with apparent misgiving. It has been done of late years, not upon principle, but rather from precedent. The doctrine grew up there under circumstances peculiar to that country. At one time, under the laws of that country, the lands of a decedent were not subject to the claims of general creditors. His lands might be greatly in excess of the amount necessary to satisfy such claims, yet at law, they could not be subjected to their payment. Grantors of real estate, who had conveyed by deed absolute, were placed in the general category. At law they were wholly remediless unless the personal assets were sufficient. According to established
There was nothing in the contracts of either class indicating that they relied upon the real estate of the debtor for payment. In this condition of things equity was appealed to for relief. The chancellor deeming it unconscionable that the heirs should enjoy property which had not been paid for by the ancestor, regardless of any contract to that effect by the parties, improvised what is called the vendor’s lien. Having enforced it in a series of decisions, while the law remained unchanged, it grew into a precedent and was enforced after the law was altered, and when the reason of its original adoption had ceased to exist. The question arose many times in an incidental or collateral way, and without much consideration the doctrine was sustained, but when it was squarely presented, the court, although it was affirmed, yet expressed regret that the doctrine had ever been recognized. And some of the American courts who have adopted the doctrine, express in emphatic language, their doubts of its propriety.
There is a great variety of opinion among modern courts as to what the vendor’s lien is. Some of them regard it as a resulting trust, others as an equitable mortgage, and others still as a compound of both. Very manifestly it has none of the attributes of either. It does not ai’ise out of the contract of the parties, nor does it result from the operation of law. It is the mere ci’eature of a coui’t of equity, bx*eathed into existence independently of the original intention of the parties, and entirely without their aid. If the grantee at the time of the pinchase has not sufficient personal property out of which the purchase money can be made, the land is liable to the lien. If he
It is said that, this impalpable entity, this protean quality, this ethereal essence which no man can graphically describe, and of which hut few can bave anything like a clear conception, is a part of tlie law of this state wbicb tbis coxirt is bound to enforce; that we adopted it from the mother country; that it has been woven into the web of our legal polity, and is ineradicable except by the action of the legislature. Is such the melancholy fact ?
Some of the American courts when recognizing' the doctrine, speak of “ adopting ” it. This language presupposes the ability to reject it, and literally construed suggests on tbe part of the court, a sort of a claim to legislative power. But this evidently is not its meaning. They probably intend to be understood as saying, that having-derived . their jurisprudence from England, whose courts under certain circumstances enforced it, and the same being consistent with the general policy of our law, we will enforce it. And perhaps for the sake of completeness in their systems of jurisprudence it was proper that it should be enforced.
But here no such reason can exist. The general policy, of our real estate laws is to require everything concerning the title to, or rights in it, to be in writing. Secret trusts are discountenanced. In so far as real estate is concerned, directly or remotely, nothing is to be permitted to rest in parol.
The means of reserving and securing liens are simple and abundant. Real estate here, unlike in the earlier settled portions of the country, being one of the leading-subjects of purchase and sale, it is not only convenient but good policy, that the regulations concerning its transfer should be clear, simple, compact, and as much, as possi
The court is of opinion that the law of vendor’s lien, as administered in England is not necessarily a part of the law of this state. That being repugnant to the general real estate jurisprudence of the state as contemplated and established by statute, a recognition of its existence here would savor more of legislative than judicial determination. Hence it cannot and should not be regarded as a part of the law.
Other questions were presented in the argument, but the conclusion at which the court has arrived upon those already considered, dispenses with the necessity' of further examination.
The determination of this comt is that the deed from Brown to Mundee was a proper subject for record, without acknowledgment, and' having been in fact recorded, was notice of its contents to the whole world; and that the finding of the District Court as a conclusion of law, that Brown had a lien upon the lots for the unpaid pur