Bear v. Whisler

The opinion of the Court was delivered by Rogers, J. It is a well settled doctrine of a court of equity, that the vendor of land has a lien for the amount of purchase money, not only against the vend®*- himself and his heirs, and others privies in estate, but also against all subsequent purchasers having notice that the purchase money remains unpaid. This doctrine, it is said, was taken from the civil law; and the principle upon which the courts of equity have proceeded in establishing this lien in the nature of a trust is, that a person having gotten the estate of another ought not in conscience, as between them, to be allowed to keep it, and not to pay the consideration money. A third person, having full knowledge that the estate has been so obtained, ought not to be permitted to keep it without making such payment; for it attaches to him, also, as a matter of conscience and duty. It has been suggested, as is said in New v. Brown, 6 Ves. 59, and Chapman v. Tanner, 1 Vern. Rep. 267, that the origin of this lien of the vendor might be attributed to the tacit consent or implied agreement of the parties. This is doubted by Justice Story, in his Commentaries, 465. But whatever may have been the origin of the doctrine, whether from the cause just stated, or because it is a natural equity, it is now the uncontested doctrine of courts of equity. But in Pennsylvania it has not been held to prevail. Kaufelt v. Bower, 7 Serg. & Rawle 64. Where an absolute conveyance is made of land, a receipt given for the purchase money, and the possession given to the vendee, part of the purchase money being unpaid, and the bond of the vendee, or a surety, taken for the residue thereof, the vendor has not a lien for said residue of the purchase money against judgment creditors of the vender, whose judgments are subsequent to the conveyance, though they had notice of the balance of the purchase money due. This is undoubtedly in opposition to the rule established in chancery. There, generally speaking, it is held, that the lien of the vendor exists; and the burthen of proof is on the purchaser to establish that, in the particular case, it has been waived by the consent of the parties. if, under all the circumstances, the intention remains doubtful, the lien attaches. Taking a security, as a bond, bill or note, has been no more than a presumption of an intention to waive the lien under some circumstances, and not as conclusive of the waiver. Taking bills of exchange drawn on and accepted by a third person, [148] or by the purchaser, has been deemed not to be a waiver of the lien, but to be merely a mode of payment. Nay, so far has the doctrine been extended, that taking a distinct and independent security, as, for instance, a mortgage on another estate, or a pledge of other property, has been taken not to be conclusive evidence that the lien is waived. This extension of a salutary principle has been rejected by some of the wisest judges; and it is certain that the restrictions in Kaufelt v. Bower have met the approbation of the profession generally in this state. In that case the court also intimate that the doctrine of implied lien does not extend to Pennsylvania. Be this as it may, prima facie the lien does not exist. But whether the parties may not create such a lien by clear and express words, so as to be binding between themselves and privies, when the agreement appears on the face of the title, may not be so clear. It is not denied that where the vendor retains the legal title, he may'’ enforce the payment of the purchase money by ejectment. But this is not on the ground of an equitable lien; for an equitable lien, as is said in Kaufelt v. Bower, can only arise when the legal title has been conveyed. When he has the legal title, he stands in need of nothing more to enable him to recover the purchase money at law, as the land is pledged for the payment by the retention of the title. But here the legal title is in the vendee; and it is said that whatever other form, as covenant, &c., may give the plaintiff redress, yet that ejectment will not lie by the vendor against the vendee and those claiming under him with notice. This is a peculiar case. About the intention of the parties to the contract there can be no doubt. It was the clear intention to pay the debt contracted in the purchase of the land, to secure a comfortable provision for himself and family during life, and to secure the payment of certain sums of money to his children after his decease. To enforce the latter part of the agreement this suit is brought; and the question is, whether the plaintiffs are entitled to recover in this action 1 If they be, the court is to render judgment for the plaintiffs, to be released upon the payment of the amount due, &c. But if the court are of the opinion that the plaintiffs are not entitled to recover in this action, the judgment to be entered for the defendant. This is an equitable action, in the nature of a bill in chancery. Philip Hartman, in consideration, &c., agrees to execute a conveyance, &c., clear of all incumbrances excepting the privileges and donations as before stated. The land, as well as the vendee, personally, is pledged for the performance of the conditions by the agreement, and in this respect the deed, which was afterwards given in pursuance of the articles, is even more explicit. After the usual terms used in a deed of grant, bargain and sale, it is subjoined, in conclusion, “subject, nevertheless, to the conditions and obligations contained in a certain article of agreement existing between the parties,” &c. It is contended that this is a deed on condition, that the contract is executory, something remaining of it [149] to be done by the vendee, and that the vendee is a trustee, so far as the purchase money is unpaid or the other conditions unperformed. The words used in the deed, “ subject, nevertheless, to the conditions and obligations contained,” &c., are apt words to create a condition. There are three words that are most proper, which, in and by their own nature and efficacy, without the addition of other words of re-entry in the conclusion of the condition, do make the estate conditional, as proviso, ita quod and sub condilione. Therefore, if A grants lands to B, to have and to hold to him and his heirs, provided that, or so as, or under this condition, B do pay to A 10 pounds at Easter next; this is a good condition, and the estate is on condition, without any more words. Shep. T. 121. So where A conveyed land to B by deed, and the parties executed an indenture reciting the deed, and that it was the intent and meaning the deed of conveyance was on this condition and mutual agreement between the parties that B should indemnify A from all costs and charges by reason of the non payment of the quit rent due, and would also build a dwelling house on the lot, and suffer A and his wife to reside therein during their joint lives, and until it was built they were to reside in the old tenement then on the lot. B paid the quit rents, but did not build the dwelling house. B and his wife resided in the tenement during their lives, and A, some time before his death, conveyed the estate to another. It was held that the estate was on the condition of building, which B forfeited by not performing within a convenient time, whereby the estate revested in A, without the necessity of entry, to take advantage of the breach of the condition. Hamilton v. Elliott, 5 Serg. & Rawle 375. Whether this was'an estate on condition depends on the intention of the parties indicated by the agreement and the deed, which must be taken as one instrument. The principal object of the contracting parlies was to provide a comfortable provision for the vendor and his family. If the intention is clear, and expressed by apt words, why should the vendor be restrained to the remedy by the action of covenant? If the vendee had altogether failed in the performance of his agreement as to the vendor, would it have been au adequate remedy to the vendor to give him an action of covenant? It is manifest it would not. Would he not have been entitled to recover the possession of the premises, in such a case, by action of ejectment? But if the vendor would himself have been entitled to this remedy, I cannot perceive why the present plaintiffs are debarred from it, particularly as the object is merely, in this form of action, to enforce the performance of the agreement in good faith. The provisions of the deed equally apply to the recipients of the money, as to the vendor himself. But further, it is apparent from the face of the deed, that something remains yet to be done by the vendee, before his title is perfect; and that so far he may be viewed in the light of a trustee in equity for the vendor, notwithstanding the legal tide has been conveyed. Of this the purchaser at the sheriff’s sale had notice, because it is spread upon the [150] face of the title under which he claims. We must look to the substance of the agreement, and not to the form. In Stauffer v. Coleman, 1 Yeates 393, it was held, that an instrument of writing for the sale of lands shall be construed as a mere agreement, though it has very strong expressions of a deed and if such appears to have been the intention of the parties. So a purchaser at sheriff’s sale takes the land subject to the payment of purchase money which appears on the face of the deed to remain unpaid, and of which he has notice. Irvin v. Campbell, 6 Binn. 118. For these reasons we are of opinion that the action of ejectment will lie; and, consequently, that the judgment should be affirmed. Judgment affirmed.