Anderson's Administrator v. Wells

Chief Justice Ewing delivered the opinion of the Court. Peter Philips purchased from Long a lot in Dover, paid the consideration, $100,and took his bond for a conveyance. Philips afterwards sold the lot to Smith, and took from him as the consideration, three seyeral note» [541] for $83 331 cents each, with Potts and Parker as bis sin reties, and assigned to Smith the'title bond of Long. Smith assigned the bond-to Potts his surety, who after-wards assigned the same to Parker, the other surety. Parker being indebted to Wells assigned the bond to him, in part security, -of a debt, at the same time executing to him in further security, a mortgage upon some other property. Wells afterwards foreclosed his mortgage being coerced todo so, at the instance of another creditor, and purchased the lot and obtained the commissioner’s deed for the same, which was confirmed by the Chancellor, the whole property mortgaged including the lot, being barely sufficient to pay his debt. One of the notes of $83 33* cents given by Smith to Philips, for-the consideration of his sale and assignment of the bond for the lot, was assigned by Philips to Anderson, whose administrator files the bill in this case, against Wells, et. al. asserting a lien upon the lot for its payment. His bill was dismissed and he has appealed to this Court. If a lien exists in favor of the assignor of a bond for title to land, against a remote assignee with notice, it is in analogy to the lien of a vendor who has conveyed by absolute deed,.and can be carried no further. A seller of a title bond for land, who tabes personal security for the price, has no lien upon the land called for by the bond. —Nor has he any lien as agains't an innocent purchaser, bona fide, without notice that the price is not paid. Conceding that a lien for the consideration, exists in favor of the assignor of a bond for a title, against are-mote assignee with notice, as was settled by the majority of this Court, in the case of Lyon vs Alexander (7 J. J. Marshall, 289,) the lien is sustained only in analogy to the lien which exists in favor of the vendor, who has conveyed by absolute deed, and can be carried no further. Testing this case by this rule there are two substantial objections to the enforcement of the lien asserted. 1st. Philips the assignor of the bond for a title, fook personal security for the payment of the consideration of his sale to Smith, and it is Well settled that the taking of such independant security, is presumptive evidence of a waiver of the lien, which would be otherwise implied in favor of the vendor. 2d. Wells denies notice of the lien as well at bis purchase and receipt of the commissioner’s deed for the lot, as at and before his receipt of the bond and assignment thereon by Parker to him, in security for his debt. No notice is attempted to be proven upon him at or before the bond was assigned to him, and notice is very imper [542] fectly and unsatisfactorily proven, and that too by a siragle witness only, at or before his purchase and receipt of the commissioner's deed for the lot. The assignment of a bond for title to land is a tiansfer of all the legal right to the bond, and all vendor’s right to lire land called for, and the assignee is not a necessary party/ to a bill for á conveyance. A remote vendee of a title bond for land is not bound to look farther than to see that the legal title in the bond has passed by assignment, to avoid lions of previous assignees. The testimony of one witness cannot prevail against the parties’ denial by the answer. Hord for appellant: Beatty for appellee. The assignment of the bond for a title is a transfer of the legal title to the sa-me, and as effectualy invests the assignee with all the assignors interest therein, as an absolute conveyance invests in the vendee, all the vendors interest in the estate conveyed. It enables the assignee to sue in his own name at law, recovering damages for its breach, and thereby annuling or merging the contract for the lot, and also enables him to sue in equity without making any of the assignors of the bond parties, to coerce a conveyance of the lot. If therefore, a remote vendee who has received his deed without notice of a lien, cannot be affected by such lien, so the assignee of a bond for a title, without notice, ought not to be affected by the same. As the vendee is not bound to look beyond the fact that his vendor has the legal title to the property sold, so the assignee should not be required to look beyond the fact that his assignpr holds by regular assignment, the bond assigned. Nor does it matter that Wells received the assignment to secure a debt owing him by Parker. The transfer nevertheless, passed to him the legal right to the bond, and as effectually constituted him an innocent purchaser of the same and of all the rights legal and equitable, embraced by the bond, as the mortgage of the legal estate would constitute the mortgagee a purchaser of the same. But waiving this view of thesubject, it may be remarked, that it does not satisfactorily appear that Wells bad notice of Anderson’s lien before he received the commissioners deed, on his purchase under the decree of foreclosure, nor that he received such notice as should have put him upon enquiry as to its existence. One witness only proves it, and proves it equivocally, and it is expressly denied by Wells answer.’ Upon the whole it is the opinion of this Court that the decree of the Circuit Court dismissing Anderson’s bill, be affirmed.