Hoff v. Olmstead

Beck, Ch. J -L vendor vendor’s lien: facts to sustain. I. The pleadings and evidence show the following facts as we find them in the record: Plaintiff conveyed to defendant the lands upon which the lien is claimed in this suit, and was to receive in part A payment therefor certain lands m Nebraska, which were tó be taken by plaintiff as payment of $1,500. The balance of the purchase price of the land sold by the plaintiff was to be paid in cash. Before the land was conveyed to defendant he discovered that there was a defect in his title to the Nebraska lands. But it was agreed by the parties that defendant should pay the money consideration in a manner [599] agreed upon; that defendant should convey to plaintiff the lands conveyed to defendant to secure the sum remaining unpaid, $1,500, within three months, unless within that time defendant should convey a good title to plaintiff of the Nebraska lands. The defendant failed to execute a mortgage in compliance with the agreement of the parties, but he did execute a mortgage which extended the time of payment of the $1,500 about seven months, and made no provision for interest, and sent it himself to the proper office for record. This mortgage the plaintiff refused to aeeept, or to regard as a compliance with the agreement, and so informed defendant, and he brings this action to enforce his vendor’s lien for the amount of the purchase money remaining unpaid. These are the facts, as we find them from the evidence, upon which the case is to be determined. Many other facts are disclosed in the evidence and recited in the arguments of the respective counsel, which are not in dispute, and are collateral and unimportant in the determination of the case. II. Upon some of the controlling facts found by us, especially the agreement as to the time for payment of the $1,500, or conveyance of the Nebraska lands, there is a conflict in the evidence; but the strong preponderance of proof supports our conclusion. We are not accustomed to discuss conflicting evidence and point out the grounds for our conclusions in cases of this character. III. There are no questions of law in this case demanding discussion. The defendant’s counsel claim that, as there was no debt payable in money, and a mortgage was given, the vendor has no lien on the land. But the debt was payable in money; it was provided, however, that it could be paid by the conveyance of the Nebraska lands by defendant within a time prescribed by the agreement. This condition was not complied with, and the debt continued to be a money claim. The mortgage executed by defendant was not in accord with the agreement of the parties, and was not [600] accejited by plaintiff. It cannot be regarded in this action as a mortgage security for the debt. 2. appeal: appellee. IY. The plaintiff insists that the decree is erroneous in that it does not provide for interest. But as he did not ajijieal from the decree, he cannot com; plain of it in this court. A motion of plaintiff need not be considered. We reach the conclusion that the. decree of the court below ought to be Affirmed.