Sayre v. Westcott

WALKER, J. — Moses Brothers purchased certain real estate in the city of Montgomery at the price of ten thousand dollars, upon the agreement and understanding that thirty-nine hundred and fifty dollars of the stipulated price should be paid by a credit of that amount upon an indebtedness then 478 supposed to exist in their favor against Lucy B. Noble, who was interested as a cestui que trust in the property sold, and who was a party to the agreement for the partial payment of the purchase price by the credit on the claim against her. This contract of purchase was carried out according to its terms. Moses Brothers received a deed to the property, on allowing the credit as agreed, and paying the remainder of the price in money.' Afterwards it turned out that the supposed indebtedness upon which the credit was allowed did not really exist. Lucy B. Noble having died, the bill in this case was filed by the administrator de bonis non -of her estate, to enforce a lien upon the property for thirty-nine hundred and fifty dollars and interest, as a balance of the purchase-money still due and upaid. The claim is that the allowance of a credit on a debt which did not exist was no payment at all, and that the result is that the amount of credit is still due on the purchase,- and is secured by a vendor’s lien bn the property. The recognition of this claim would involve the enforcement of a contract which the averments of the bill show was never made. The stipulation as to the mode in which thirty-nine hundred and fifty dollars of the purchase price was to be satisfied, was a material feature of the contract of purchase. The bill does not show that Moses Brothers agreed to pay ten thousand dollars in money for the property. They only agreed to pay in money the difference between that sum and the amount of the stipulated credit. It may very well be that the sale could not have been made except upon the condition of allowing the purchasers to use their claim in paying part of the agreed price. The opportunity of realizing on the claim may have been the principal inducement which influenced them to make the trade. The fact that, as a result of a mistake of the parties, a part of the consideration for the sale and conveyance turned out to be no consideration at all, can not be allowed to have the effect of binding the parties to a contract different from the one they entered into. There can not be a lien for purchase-money which was never due or payable under the contract of purchase. The implied lien of a vendor of real estate is an incident of a débt for unpaid purchase-money. Though the lien survives, and maj^ be enforced afi er an action on the debt is barred, yet the existence of the lien presupposes a debt to be secured thereby. — 2 Warvelle on Vendors, 706. Where a sale is valid, though the vendee is not sui juris so as to be personally bound for the payment of the purchase-money, there is a lien in favor of the vendor, but it is only to secure the payment of the purchase479 money according to the terms of the sale. — McDonald v. Elyton Land Co., 78 Ala. 382. In this case, the lien is sought to be enforced for a debt not created by the terms of the contract of sale, as the purchasers did not agree to pay in money the amount for which a lien is claimed. There has been no failure on their part to comply with the contract as it was made. The court can not change the contract of the parties, so as to make all of the purchase price payable in money. The non-existence of the supposed debt upon which the credit was allowed may have conferred upon the seller the right to demand a rescission of the contract of sale, upon offering to make restitution of what the purchaser had actually paid. Whatever rights Lucy B. Noble may have had against Moses Brothers, as the result of other dealings between them, she was not entitled to a lien for purchase-money which was never agreed to be paid for the land. The fifth and sixth grounds of demurrer interposed by the appellants pointed out the fatal defect in the claim to a lien. The bill was without equity, and should have been dismissed. Reversed and remanded.