Franklin v. Hillsdale Land & Cattle Co.

Mr. Presiding Justice Shepard delivered the opinion oe the Court. This appeal is from a decree dismissing the amended and supplemental bill of the appellant for want of equity, and granting the relief prayed by the cross-bill of certain of the appellees. As the result of certain contracts entered into between the appellee, Hillsdale Land and Cattle Company, of Cheyenne, Wyoming, and the appellant, Lesser Franklin, of Cook county, the appellant conveyed to the Land and Cattle Company, seven hundred lots in a subdivision known as Franklin Park, in the county of Cook. And it was agreed that for said lots the Land and Cattle Company should convey to appellant, free of incumbrance, twelve hundred acres part and parcel of a certain ranch in Wyoming, and deliver upon said ranch a number of cattle and horses, and assign to appellant certain land grant contracts, and pay $75,000 in money, payable in ten equal annual payments secured by mortgage back to appellant on five hundred of the seven hundred lots. Pending the closing of the contract it developed that the ranch was incumbered by trust deed to Truman B. Hicks, securing an indebtedness of about $70,000, owed by the Land and Cattle Company to the First National Bank of Cheyenne and one Van Tassell. To free the ranch from such incumbrances, it was arranged between the Land and Cattle Company and said bank and Van Tassel, that a trust deed by the Land and Cattle Company to Hicks upon the whole seven hundred lots should be substituted for the trust deeds upon the ranch, to secure practically the same indebtedness, and such arrangement was carried out, and the trust deed to Hicks upon the seven hundred lots was delivered and recorded at the same time that the other papers were exchanged and recorded. The trust deed to secure the $75,000, part purchase money, was a first lien upon said five hundred lots, and the trust deed to Hicks was a second lien upon them and a first lien upon the remaining two hundred lots. There was afterward a failure by the Land and Cattle Company to deliver some of the cattle and horses contracted for to the extent or value, as claimed, of $24,400; and appellant’s bill was filed to foreclose a vendor’s lien for that amount as being unpaid purchase money for the two hundred lots which were not included in the trust deed to secure the $75,000, but were covered by the trust deed to Hicks, to secure the bank and Van Tassell to the extent of their former and released lien upon the ranch. The cross-bill was filed by Hicks, the bank and Van Tassell, to foreclose the trust deed to Hicks upon the same two hundred lots—the first trust deed upon the 500 other lots having been already foreclosed, as stated in the decree at bar. There are numerous reasons why the Circuit Court rightly dismissed the appellant’s bill. The lien of a vendor of real estate upon the premises sold, in cases where the purchase money has not been paid and no. security taken therefor, stands upon the equitable presumption that it was not intended by the parties that one should part with and the other acquire the premises without payment of the purchase price. And the lien exists independent of contract, and being secret in character is not favored, and may be easily waived or lost. All authorities hold that if the vendor takes security he waives his lien. And this is so, because the lien rests upon the implied agreement between the vendor and the vendee that the vendor shall retain a lien upon the lands sold as security for the purchase money, and the fact that the vendor has taken other security, rebuts any such implied agreement. The authorities in this State and elsewhere are numerous, and without amplification we will merely cite a few of them: Conover v. Warren, 1 Gil. 498; Trustees v. Wright, 11 Ill. 603; Richards v. Leaming, 27 Ill. 431; Burger v. Potter, 32 Ill. 66; Kirkham v. Boston, 67 Ill. 599; Lehndorf v. Cope, 122 Ill. 317; Baker v. Updike, 155 Ill. 54; Brown v. Gilman, 4 Wheaton, 255; Fish v. Howland, 1 Paige Ch. 20; 2 Sugden on Vendors, 384, 385 (8th Am. Ed., notes by Perkins). The contract at bar was an entire one, and did not, as is contended, separate; the two hundred lots from the entire seven hundred. It expressly provided for security being given for $75,000, part of the purchase price of the whole number of lots. For the balance of the purchase price other property was to be taken, as in exchange, clearly rebutting any intention to rely upon an implied lien for it. The authorities we have cited show that no lien can be retained under such circumstances. The parties, by their contract, plainly did not contemplate the reservation of a lien by Franklin, and equity will not create one where it is manifest from the contract none was intended by either party. But upon another ground, no lien should be allowed to appellant, as against the cross-complainants, the bank and Van Tassell. They released their security upon the ranch in order that appellant might get a free and unincumbered title thereto, under his contract with the Land and Cattle Company to have such. The appellant stood by and had notice that this was done, and a lien upon the 200 lots substituted for that which they released, and which he got the benefit of. By his supplemental agreement with the Land and Cattle Company, he gave time until a date nearly three months after all transactions in connection with the transfer and mortgaging of the real estate took place, for the Land and Cattle Company to deliver other horses, to take the place of cattle and horses originally contracted to be delivered, and said no word indicative of a retention by him of a vendor’s lien upon the lots which the cross-complainants, with notice to him, were taking a mortgage upon. He was then satisfied to take the unsecured agreement of the Land and Cattle Company to deliver the horses to him, and he should not now be heard in equity to deny the priorities over him of the cross-complainants. We omit discussion of the element of fraud that is argued, for the reason we discover no sufficient evidence to support the argument. The decree was right, arid is affirmed.