Wickman v. Robinson

| Wis. | Dec 11, 1861

By the Court,

Paine, J.

This appeal presents the question whether one who has made a contract for the purchase of real estate, and has paid part of the purchase money, has an equitable lien on the land for the amount paid, in case a completion of the contract is prevented by the default or wrongful act of the vendor. It must be conceded that there are not many eases where such a right has been sought to be erL^orce^> ^e right itself has been frequently recognized courts, and referred to as established by elementary writers. The following cited by the appellant’s counsel, may serve as illustrations. Burgess vs. Wheate, 1 W. Black., 150 ; Mackreth vs. Symmons, 15 Ves., 345 ; Mooney vs. Dorsey, 7 S. & M., 22; Payne vs. Atterbury, Harring. Ch. (Mich.), 418; 3 Y. & Jer., 264; Miller on Eq. Mortgages, 45 Law Lib., 18 and 19.

We can see no reason why such a lien should not exist. All the reasoning by which the vendor’s equitable lien for the purchase money after conveyance, is established, is applicable in support of the vendee’s lien after payment or part payment, and before conveyance. It is difficult to imagine upon what principle a court of equity could enforce the one and deny the other. It is undoubtedly true that the more usual remedy is, to enforce a specific performance. But in cases like the present, where the payment is to be made by the performance of particular services for the vendor, and after they are partly performed he refuses to allow them to be completed, it may be doubtful whether a specific performance could be enforced by the vendee; whether he would not be limited to his damages for the non-performance. However that may be, we are satisfied that it is the clear result of equitable principles, that if he chooses to waive every right except the recovery of that which he has paid, he should be held to have a lien on the land for that amount.

The amount to be paid, in a case like this, would be the value of the services actually performed, estimated according to the contract price. The contract having been recorded, the plaintiff is entitled to the same remedy as against the purchaser, that he would have if no conveyance had been made. 1 Paige, 129; 4 id., 9 ; Hoagland vs. Latourette et al., 1 Green’s Ch., 256. That remedy is by a sale of the property to collect the amount due, it being in the nature of a foreclosure. 2 Story’s Eq., § 1217.

The demurrer to the complaint should have been overruled. The judgment is reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.