Smith v. Rowland

The opinion of the court was delivered by Valentine, J.: The only questions involved in this case are as follows: First, Can a vendor’s lien on real estate for unpaid purchase-money be created by the express contract of the parties at the time of the sale and conveyance of such real estate ? Second, And if so, was any such lien created in the present case? In the present case a deed of conveyance was executed for the land, and a promissory note was given for the unpaid purchase-money. The substance of the deed, so far as it has any application to this case, was, that Marshall Smith sold and conveyed to Oscar F. Eowland and John-T. Eowland certain lands in Osage and Linn counties, subject to a vendor’s lien for the payment of the unpaid purchase-money. That portion of the deed intended to create said vendor’s lien follows immediately after the description of the property conveyed, and is expressed in the following language, to-wit: “Subject however to a vendor’s lien upon all the above-described premises, which is hereby reserved to the said Marshall Smith to secure the payment of part of the purchase-money, according to the tenor of the promissory note of the parties of the second part of even date herewith, for the sum of thirteen hundred, thirty-three and 33-100 dollars, payable to the said Marshall Smith or order five years after date with ten per cent, interest per annum from maturity until paid.” This deed was dated March 12th, 1867, and was duly recorded in Osage county, June 1st, 1869. The promissory note above described reads as follows: “$1,333.33. Jacksonville, Illinois, March 12th, 1867. “ Five years after date we promise to pay Marshall Smith, or order, thirteen hundred and thirty-three and 33-100 dol [250] lars, value received, with ten per cent, interest per annum from maturity until paid. This secured by vendor’s lien reserved in deed of date from payee and wife to us of 406 93-100 acres of land in Osage and Linn counties, Kansas. “Oscar F. Lowland. “John T. Lowland.” We know of no reason why the vendor’s lien attempted to be created by the stipulations contained in said- deed and note should not be held legal, valid and binding. It is true, under the decisions in this ,state (Simpson v. Mundee, 3 Kas., 172; Brown v. Simpson, 4 Kas., 76,) no vendor’s lien can be created by mere operation of law, or by mere force of any rules of equity, where the deed is absolute upon its face, and apparently contradicting all idea of any supposed vendor’s lien; but no decision has ever been rendered that we are aware of, in this state or elsewhere, affirming that the parties to a sale and conveyance of real estate cannot if they choose create by contract a valid vendor’s lien. The vendor’s lien in the present case is no “ mere creature of a court of equity.” It is no “ secret trust.” It is not against public policy. It is not “against the general policy of our real-estate laws,” or registry laws, or any other laws, either in letter or spirit. And it is no more an “impalpable entity,” a “protean quality,” an “ ethereal essence,” or an “ indescribable myth,” than any other mere lien upon real property. It is as tangible and as substantial as any other mere lien, and is as fair and reasonable in all its terms and conditions as any other lien founded upon a pledge of property for the payment of a debt. It was created by the parties themselves, in writing, and was placed in the deed itself that conveyed the land, so that when the deed should be recorded it would be notice to all the world and especially to subsequent purchasers and mortgagees. (Gen. Stat., 187, § 20.) Vendors’ liens havé not been wholly abolished in Kansas. (Stevens v. Chadwick, 10 Kas., 406.) And neither have all equitable liens been abolished. (Seibert v. True, 8 Kas., 52; Seibert v. Thompson, 8 Kas., 65, 73.) And there is certainly no statute that either expressly or impliedly prohibits parties from creating vendors’ liens by express contract. Therefore [251] we think parties may so create vendors’ liens, and that a vendor’s lien has been so created in the present case. (Hutchinson v. Patrick, 22 Texas, 318; Stratton v. Gold, 40 Miss., 778; Bear v. Whistler, 7 Watts, (Pa.) 144; Carpenter v. Mitchell, 54 Ill., 126 ; Harvey v. Kelly, 41 Miss., 490; Dunninq v. Stearns, 9 Barbour, 630.) The claim that the vendor in the present case cannot commence his action to enforce his vendor’s lien until he has first exhausted his remedy against the personal estate of the vendee is not tenable; and neither is the vendor bound to show that the vendeé has no personal property subject to execution. (See authorities above cited, and Sparks v. Hess, 15 Cal., 186, 193.) Whatever may have been the rule where the lien was created merely by implication of law, and not by contract, can make no difference in this case, for in the present case the lien was created by express contract upon the specific property against which the vendor now seeks to have the lien enforced. The judgment of the court- below is reversed, and cause remanded for further proceedings. All the Justices concurring.