10 Barb. 626 | N.Y. Sup. Ct. | 1851
Stephen W. Oadwell and Harry Baldwin respectively complain of so much of the order made in this proceeding, at the special term, as postpones their claims to parts of the surplus moneys which are the subject of this litigation, to the other claimants. The other parts of the order are acquiesced in by the parties interested. There is some question whether a rehearing is the proper method for reviewing the order in this case, and whether such proceeding is not abrogated and an appeal substituted, in cases like the present. But as no formal objection was taken by the adverse parties, to the regularity of the proceeding, we will not further notice it, but consider the claims of the parties who have sought a rehearing, upon their merits. The claim of Mr. Oadwell will bo first examined. He claims that for his advances and payments beyond his proportion, towards the improvements upon the mortgaged premises, he acquired an equitable lien upon the interest and share of Thomas, not only as against him, but also as against the other claimants; and that his equity in virtue of such lien
But the claimant relies particularly upon the doctrines advanced in the same work, in §§ 1234 to 1240, to sustain the claim in this cause. The author in that • part of the work is treating of implied trusts, which are defined to be, 1st, those which stand upon the presumed intention of the parties, and 2d, those which are independent of any such intention and are forced upon the conscience of the party by operation of law, as for example, in eases of meditated fraud, imposition, notice of an adverse equity, and other cases of a similar nature. (§1195.) There is no foundation for presuming an intention of the parties to create a lien in this case: neither is there any fraud or imposition pretended on the part of Thomas which should force an implied trust upon his conscience. Whether the provisions of the revised statutes in relation to trusts would affect the class of trusts referred to by Judge Story, or any and which of them, may perhaps be a question, but we do not deem it necessary to examine it here. In § 1234, the writer first speaks of the lien which is claimed to exist here, as one upon which he proposes to speak, and then says, 11 this lien, as we shall presently see, sometimes arises from a contract express or implied between the parties, and sometimes it is created by courts of equity upon mere principles of general justice; especially when any relief is sought by the party who ought to pay his proportion of the money expended in such repairs and improvements; for in such cases the maxim well applies, Nemo debet locupletari ex alterius incommodo.” In this section the author merely lays down the proposition that in certain cases equity will create this lien, but does not define in what cases this will be done, leaving that to the following sections. He speaks very differently of the lien of the vendor of land for the purchase money. He speaks of that lien as existing in all cases, and as well established in equity, (lb. § 1217 and seq.) In § 1235, the common law writ
The case of Scott v. Nesbitt, (14 Vesey, 444,) also referred to in the note to that section, merely establishes the doctrine that for advances upon a West India estate in behalf of the English owner, a lien attaches, but the Lord Chancellor expressly rests his decision upon the nature and situation of the property and the situation of the parties, and not upon the doctrine of lien. He says, “ I must lay the doctrine of lien out of the question, except with reference to the distinction between an estate in Jamaica and in this country.” This case is cited by authors as establishing this and no more, and not as establishing a lien generally for advances for repairs and improvements. (Com. Dig. Lien, note b, § 79. Id. Chancery app. Lien, § 7.)
In § 1237 the author states that in many cases the doctrine may proceed upon the ground of express or implied agreement, and cites Gladstone v. Buly, (2 Mer. 403,) which was a bill filed in- respect to a charter party, and in which the master of the rolls says : “ There are to be sure liens which exist only in equity, and of which equity alone can take cognizance; but it can not be contended that lien for freight is one of them.” Hot one word said in the case, of liens upon real estate. Judge Story then in the same section proceeds to speak of cases other than those of agreement or joint purchase, in which liens have been allowed, and then, as if speaking of the only case of a lien which would exist for repairs by one joint tenant, says : “ So money bona fide laid out in improvements on an estate by one joint owner will be allowed on a bill by the other (not by him
II. The doctrine of constructive liens will not at this day be extended and applied to cases not within the rule, and the reason of the rule, which has been clearly established. Secret trusts in, and constructive liens upon real estate, are now discountenanced ; at least they are not encouraged. «The lien of a vendor of real estate for the purchase money is disallowed in many of the states of the union, and were it now a new question in this state, it is at least doubtful whether it would be established. See upon this subject the note of the American editor to case of Mackreth v. Symmons, 1 White & Tudor’s Leading Cases in Eq. (Vol. 65, Law Library,) 194, and per Marshall, Ch. J. Bayly v. Greenleaf, (7 Wheat. 46.)
III. Upon the facts disclosed in this case no lien can be established, upon any principle contended for by the counsel for the claimant. (1.) There is no agreement express or to be implied from the facts proved, that a lien should be created. No intention to charge the premises for the advance can be presumed. On the contrary the evidence shows conclusively that the credit was given to Thomas and not to the premises. Thomas was then in good credit, and supposed to be wealthy,
Having come to the conclusion that no lien exists against Thomas, it is not necessary to examine the question made as to the rights of creditors of Thomas, or whether the Albany City Bank stand in any better situation than Thomas himself would have done, in this litigation. But if the lien could be established against Thomas, the Albany City Bank being creditors of Thomas, and having secured the legal title to the property without notice of this secret and constructive lien claimed by Cadwell, would—their equities being equal—hold as against Cadwell in virtue of their prior and superior legal title. This is expressly decided in Bayly v. Greenleaf, (7 Wheat. 46.) Sec also Moore v. Holcomb, (3 Leigh, 597,) and the cases cited in note to Mackreth v. Symmons, supra, and the comments of the American editor at pages 249 and 250 of the Law Library edition. Dickinson v. Tillinghast, (4 Paige, 215,) was a question upon the effect of the recording acts. The cases of Howe, (1 Paige, 128,) and Shirley v. The Congress Steam Sugar Refinery, (2 Ed. Chy. Rep. 505,) decide upon the rights of a general assignee for the benefit of creditors, and that such assignee takes subject to all the equities which existed against the property in the hands of the assignor. This Would clearly not hold good in cases of transfer to a creditor in
The claim of Mr. Baldwin we think without foundation as against the Albany City Bank, for the reasons given for the decision at special term. The-order then made was as favorable as the claimant- could ask, and my associates think more so, but as the widow and heirs of Tomlinson do not object to it as too favorable, it must be affirmed.
The order made at special term must then be affirmed, with costs to be paid by Cadweil and Baldwin.