Heist v. Baker

The opinion of the court was delivered, by Woodward, C. J. The deed of March 12th 1849, Jacob N. Baker to Elizabeth Gross, contained these words: “ Under and subject nevertheless to the payment of the sum of $932.52, at the decease of the said Elizabeth Gross, unto the above-named Ann Eliza and Rachel Gross, minor children of Samuel Gross, or to their legal representatives.” According to the cases cited in the argument, as well as according to the reason of the thing, these words created an express lien upon the land for the sum mentioned, which was not divested by the sheriff’s sale, because, during the life of Mrs. Gross, it was a lien of indeterminate value, and was manifestlv intended to run with the land. [14] The ruling of the learned judge is resisted on the authority of Hiester v. Green, 12 Wright 96; but this is the very converse of that case. There there was no express charge upon the land, and here there is. Such is our repugnance to implied or constructive liens that we refused to treat a recitation of unpaid purchase-money as a lien, though standing in the channel of the title, and we desire to be understood as having refused after great consideration of the subject; but where it is expressly charged the lien must be supported. It is the distinction between express and implied liens. Generally debts are not liens upon land inter vivos, and when a party alleges that a particular debt has become a lien, it .is not unreasonable to hold him to some affirmative proof of it, like a judgment, mortgage, or agreement. This excludes all risk of the courts holding that for a lien which the world does not; it excludes, in a w-ord, all the uncertainties of constructive liens, and furnishes a plain, straight path to walk in. . Conceiving that the judgment below was entirely consistent with Hiester v. Green, as well as other adjudged cases, it is affirmed.