Plaintiffs appeal from a judgment in a court-tried case denying them an equitable lien against certain real estate. To the extent pertinent to this appeal, plaintiffs sought a money judgment against defendant Group Enterprise for $12,300 earnest money paid by them on a sale contract for the purchase of a lot and residence to be built by Group Enterprise. They also sought to impose on the real estate an equitable vendee’s lien for the earnest money. They received a money judgment against Group Enterprise for the earnest money and interest but were denied a lien on the property. No appeal was taken from the money judgment. We reverse.
The contrаct was executed August 21, 1980, and plaintiffs had paid to Group Enterprise the $12,300 earnest money by August 29, 1980. On September 3, 1980, Group Enterprise applied to Hampton Metro Bank for a “presold” construction loan of $84,000. Attached to the loan application was the sale contrаct executed by plaintiffs and Group Enterprise and a permanent loan commitment obtained by plaintiffs. The loan was approvеd and construction of the house commenced. The Bank’s deed of trust was recorded on November 21, 1980. Closing was extended on several occasions because Group Enterprise had not completed construction. The final closing was aborted by the initiation of forеclosure proceedings by the Bank. Plaintiffs filed their initial petition against Group Enterprise and the Bank on August 21, 1981. Foreclosure sale occurred two days thereafter and the trustee’s deed was recorded two days after that with Bank as the purchaser. On December 3, 1981, Bank exeсuted a quit-claim deed to Group Enterprise which on the same day executed
Plaintiffs contend that as a matter of law they were entitled to a vendee’s equitable lien against the real estate. Devore v. Devore,
"... ‘it is an established principle in equity that where a conveyance is made prematurely before the payment of the pricе, the money is a charge on the estate in the hands of the vendee; and where the money is paid prematurely before conveyance it is, in like manner, a charge on the estate in the hands of the vendor’ ... And what is true of the premature payment of the purchase рrice as a whole is also true of a premature part payment, in which event the premature part payment operatеs as a lien pro tan-to.”39 S.W. 69 .
See also, Sanders v. Sheets,
The Bank and the Ellebreehts advance three theories to support the trial court denial of the lien. First, they contend that plaintiffs have, and elеcted to pursue, an adequate remedy at law by a money judgment for the earnest money paid. That contention confuses a cаuse of action for debt with the remedy available to collect the judgment for that debt. The proper action for establishing the debt is thrоugh a law suit for money had and received. Meyer v. Dubinsky Realty Co.,
Secondly, Bank and Ellebreehts con-,, tend that the sale contract contained no statements of intention that a lien should exist for the earnest monеy and that such was not in the contemplation of the plaintiffs. In reliance they cite cases involving loans made by plaintiffs from which defendants purchased real estate. Wilkinson v. Tarwater, supra; Craft v. Politte,
“ ‘An equitable lien arises either from a written contract which shows an intention to charge some particular property with a debt or оbligation, or is declared by a court of equity out of general considerations of right and justice....’” [6] (Emphasis supplied).
The cases relied upоn by the defendants arose under the first disjunctive; this case arises under the second. Devore, supra. It is further clear that the vendor’s lien exists independent of any еxpress agreement at the time of the conveyance or intention pn the part of the grantor at such time to claim it. Hunter v. Hunter,
Finally defendants contend the lien was properly refused because they were innocent purchasers for value. This status would defeat the lien. Hunter v. Hunter, supra, [9-12]. Clearly the Bank does not fit the category of an innocent purchaser. At the time it made the loan to Group Enterprise it had, as part of the loan application, documents which reveаled
Judgment against Group Enterprise and Cоnstruction Company and in favor of plaintiffs affirmed. Judgment against plaintiffs on their request for an equitable vendee’s lien reversed and cause remanded with directions to the trial court to impress said lien.
Notes
. Sec. 527.260 RSMo 1978 requires that in any civil action based upon any equitable right, claim оr lien affecting real estate a notice of lis pendens be filed and such filing serves as constructive notice to purchasers. In the аbsence of proof to the contrary it is reasonable to assume that plaintiffs followed that statutory requirement. No notice of lis рendens was introduced in evidence, possibly because the parties did not at trial appear to be litigating the question of innocеnt purchase. By supplement to the legal file, plaintiffs have filed here a notice of lis pendens filed on the same day as their original petition. We need not consider that document.