Camp v. Gifford

Barker, J. The fundamental legal proposition presented upon the foregoing facts is — did the plaintiff have and retain a lien, in equity, upon the premises conveyed by him to his daughter, as a security for the performance of her promise to support and maintain her mother, the wife of the plaintiff, during her natural life ? The only consideration for the deed was such promise. No money consideration was stipulated for, by the terms of the bargain and sale. The plaintiff’s whole case rests upon the truth of this proposition. If the same cannot be affirmed as being the law in this state, then he has failed to show a case for the relief sought. The English chancery doctrine of the vendor’s equity lien for unpaid purchase-money, when he has made an absolute conveyance of the land, has been adopted in this state and in some of the other states, with qualifications and modifications. In some of the states the rule has been wholly repudiated and condemned, and has no existence in their equity courts. As between the original parties, where the consideration for the sale was money to be paid, and the whole or any part of the same remains unpaid, then the presumption is, the lien exists, and it is incumbent on those who deny the existence of the lien to prove that the vendor has relinquished it. (4 Kent's Com., 152. Garson v. Green, 1 John. Ch., 308. Story’s Equity, 1217 to 1228. Fish v. Howland, 1 Paige, 20.) [439] In many other cases the doctrine is upheld and applied. Does the case made by the plaintiff come within the rule thus established % I think it does not; and it is so held by every English and American case on that subject reported, and by the leading elementary writers of both countries. It is worthy of note that the elementary writers, Kent, Story and Sugden, while writing upon this topic, use the phrase, ‘ ‘ unpaid purchase-money, ” in its most literal sense and meaning — as applicable to cases where the vendee has promised to pay the consideration in money. Where the vendee has undertaken to do and perform a collateral thing in consideration of the conveyance of the land to him, such promise is regarded as payment of the price of the land, and there is no lien. Whether or not, in such a case, the vendor can have or demand money from the vendee is uncertain and contingent, and may never happen, and if it shall, it is uncertain when, or in what amount. The right to demand money can only arise upon non-performance of the agreement of the vendee to do a particular thing. Chancellor Kent, in his Commentaries, says the lien is not reserved, where the object of the sale was not money, but some collateral benefit. (See supra.) Story says, the lien ceases, by the Roman law, where anything is taken in satisfaction of the price, although the payment had not been positively made. (See § 1223.) In Mackreth v. Symmons, (15 Vesey, 329,) an important and leading English case, on this subject, Lord Eldon holds that if the vendor has taken the promise of the vendee to do more than to pay money, the lien is relinquished. In Coit v. Fougera, (36 Barb., 195,) the court, in its opinion, states and affirms propositions similar to those contained in the foregoing authorities. [440] In Hare v. Van Duesen, (32 Barb., 92,) the question up and discussed was, when the lien was waived. The learned judge stated two classes of cases, where it would not continue. One, where the parties have agreed to substitute something else for the unpaid purchase-money — as the covenant or obligation of the vendee to do some collateral act. And also where, at the time of the conveyance, the transaction is so far complete that no present debt or obligation is owing by the vendee to the vendor. I concur in both of these propositions, as being the result of the adjudications, in this and the other states where the general rule prevails. The editors of, and commentators upon, Leading Cases • in Equity, have given these questions much consideration, and fully sustain the rule which I follow in disposing of this case. (Lead. Cases in Eq., vol. 6, p. 248. See also McKillip v. McKillip, 8 Barb., 552.) In Brawley v. Catron, (8 Leigh, 522,) it was held in Virginia, that the lien would not be sustained as a security for unliquidated and uncertain damages, and does not exist in a case where the consideration for the conveyance of the land is an engagement by the vendee to support the vendor during life. - The daughter of the plaintiff did not agree to pay money to him for the deed. Her sole promise was to support her mother. It was to do a certain thing as the sole consideration for the conveyance. It would be most unreasonable to say, with such an agreement on her part, that the parties intended that the vendor should have a lien on the land; that she did not acquire all the vendor’s interest in the land; and that she could not convey a full and complete title to a purchaser, so long as her mother lived, although she should fully perform, day by day, her promise to provide for her. The transaction was a mere family arrangement, being wholly devoid of those elements essential to up [441] hold a lien, in the nature of a mortgage, which can be enforced by proceedings in rem. [Chautauqua Special Teem, January, 1874. Having reached this conclusion, I shall not consider any of the other propositions presented by the defendants, in avoidance of the plaintiff’s right to the relief asked for. I put my adjudication upon the single legal proposition stated and considered. I have intended to pass upon every question of fact raised by the evidence, except the one, whether Camp specifically relinquished, at the time of the settlement, any lien he might have on the house and lot. That, I deem wholly unnecessary to pass upon, after holding that there never was a lien. The plaintiff’s complaint is dismissed, upon the merits, with costs. Complaint dismissed. Barker, Justice.]