Berry v. Boggess

Watts, J. Com. App. According to the view we take of this case, it is not necessary in disposing of the same to consider in detail the various objections to the judgment presented by the assignment of errors. Plaintiffs in error claim in their answer that, long before defendant in error had executed the deed, they had purchased the lot, and paid her therefor $250; that she had placed them in possession; that they had made valuable improvements thereon and were occupying it as a homestead. Also, that as Sarah Berry did not consent to the payment of $5 per month, and a reservation of a lien in the deed to .secure the same, that the court erred- in decreeing a foreclosure of the lien, claiming that it was no part of the purchase money. The court found that only a portion of the $250 deferred payment on the land had been paid by plaintiffs in error, while the other portion was settled by defendant in error. That finding is upon a conflict of evidence and must here be considered as conclusive. Plaintiffs in error both testified that they went into possession with the consent of defendant in error, upon the understanding that whichever of her two daughters, Sarah or Lucy, first paid her $250, should have the lot in controversy. Under the circumstances they had no title upon which to predicate a homestead claim against the defendant in error. It was therefore competent for the defendant in error to require the payment of the $5 per month, with a reservation of a lien upon the property in the execution of the deed. That is, the title vested by the conveyance was burdened with the lien. And it would not affect the question, if, strictly speaking, the amount was not part of the purchase money of the lot, for in legal effect it is made such by the terms of the deed. On the case made by the record, the only title plaintiffs [242] in error have to the lot is that vested by the conveyance, and that vested subject to the reservation of the lien. [Opinion adopted October 24, 1884.] Whether it be called a contract or vendor’s lien is immaterial; as it is reserved in the conveyance its effect would be the same. In our opinion there is no error in the judgment of which the plaintiffs in error can rightfully complain; Defendant in error has filed no assignment of errors, and having examined the record we report that there is no such fundamental error apparent as would require the reversal of the judgment and that it ought to be affirmed. Affirmed.