Stephens v. Shannon

Smith, J. Shannon, on the first of January, 1870, sold and conveyed to Winfrey three hundred and twenty acres ot land in Arkansas county for $5,000, of which $4,000 'were paid, and for the remainder Winfrey made his promissory note under seal, payable on the first of April, 1870, and secured by a lieu reserved on the face of his deed. Several payments were made on this note, the last being on the 6th of November, 1871. Winfrey afterward, sold and conveyed the land to Ivey, and Ivey on the 20th of January, 1872, sold and conveyed one hundred and sixty acres of it to Stephens. Shannon, on the 23d day of May, 1881, filed his bill against Winirey,Tvey and Stephens, to subject the land to the payment of the balance due on the note. We need not notice the proceedings relating to other defendants, as they have not appealed. But Stephens’ defence was that all remedy against the land in his hands was barred by the statute of limitations, he having held possession under a deed for more than seven years without any recognition of the alleged lien. The decree was for the plaintiff. i. vendor’s A vendor of land, who has parted with the legal title, has, nevertheless, in equity, a lien for the purchase money against the vendee and his privies, including subsequent purchasers with notice. Shall. v. Biscoe, 18 Ark., 142; Chapman v. Liggett, 41 Id., 292, and cases therein cited. ofsub-vendee? The deed of Shannon, which' contains the reservation the lien, was not placed on record. But Stephens was affected with notice of all recitals in the title-deeds of his vendor, whether they were of record or not. Stidham v. Matthews, 29 Ark., 650; Stephens v. Anthony, 37 Id., 571. an‘a^cep°f hen' This equitable lien of the vendor is not, however, an estate in the land itself, but is a charge, or right which has inception only on bill filed. Bispham’s Principles of Eq., 3rd Ed., Sec. 854; Gillmore v. Brown, 1 Mason, 191. From the fact that it is a mere remedy or security, and not a right of property, it results that the lien cannot be enforced after the bar of the statute of limitations has attached to the debt. Linthicum v. Tapscott, 28 Ark., 267; Waddell v. Carlock, 41 Id., 523; Boust v. Covey, 15 N. Y., 505; Trotter v. Erwin, 27 Miss., 772. We are aware that a different view has been taken by the courts of Maryland and Alabama. See the cases collected in a note in 31 Am. Rep., 41 to the case of Bizzell v. Nix, 60 Ala., 281. But this seems to be a mistake. For, undoubtedly, the debtis in such cases the principal thing and the lien an incident; and the accessary necessarily falls along with its principal. That the barring of the debt bars also a foreclosure of the mortgage intended to secure it, is a logical sequence in those states where a mortgage is regarded merely as a pledge, the title remaining in the mortgagor until foreclosure, and the rights and remedies of the mortgagee being equally equitable. Ewell v. Daggs, 108 U. S., 143; Schmucker v. Sibert, 18 Kans., 104; S. C., 26 Am. Rep,, 765; Day v. Baldwin, 34 Iowa, 380; Lord v. Morris, 18 Cal., 482; McCarthy v. White, 21 Id., 495; Eborn v. Cannon’s Ad., 32 Tex., 231. The solution of this controversy then, depends not on the length of -time that Stephens has had adverse possession; for, Shannon having no right to the possession, nor any interest in the land, the character of that possession becomes unimportant; but it depends on the fact whether the note was barred at the institution of the suit. 4. stote of limitatlooá sealed instruments The instrument having been executed while the constitution & °f 1868, which abolished private seals, was in force, the gcrojj ag}xecj to the maker’s name added nothing to its dignity, and did not raise its grade. And no payment having been made later than November 6th, 1871, the bar would have become complete on November 5th, 1876, had that constitution remained in force. But in 1874, another constitution was adopted. And section 1, of the schedule to it, contains this extraordinary provision : “Until otherwise provided by law, no distinction shall exist between sealed and unsealed instruments, concerning contracts between individuals, executed since the adoption of the constitution of 1868. Provided that the statutes of limitation concerning sealed and unsealed contracts in force at the time, continue to apply to all instruments afterwards executed, until altered or repealed.” In Dyer v. Gill, 32 Ark., 410, it was decided that the Constitutional Conventiou had- the power, and it was their intention to restore the limitation of ten years to actions upon writings obligatory executed after the adoption of the constitution of 1878, leaving it to the Legislature to alter or repeal the provision. The Legislature has never taken any action in the matter, so far as we are advised : and the case above quoted governs this. The suit was not barred and the decree below is affirmed.