McGonigal v. Plummer

Alvey, J., delivered the opinion of the Court. The motion made to dismiss the appeal in this case cannot prevail. The delay in transmitting the record to this Court seems to be equally attributable to the appellees as to the appellant. By admission it is shewn that the delay in making up the record was in consequence of an agreement entered into by the parties, in regard to the selection of the papers that should form the transcript. And as to the character of [427] the order appealed from, that forms no sufficient ground for dismissal. It has not, it is true, all the formalities usual in orders passed upon exceptions to auditor’s accounts, but it is unequivocal in its import, and finally decisive of the subject matter that was under consideration of the Court. The motion to dismiss must, therefore, be overruled. In deciding upon the merits of this appeal, the first and main question that presents itselfj and that which underlies all others, is whether, upon the sale and conveyance of the real estate by Postles and wife, to Joshua McGonigal, the vendor’s lien was preserved; for if such lien was waived or surrendered, there is, at once, an end of the controversy, so far as the claim of the appellant is supposed to have preference over the claims of other creditors of Joshua McGonigal. This question depends upon the circumstances attending the sale and conveyance of the estate. The deed was made and the bond given on the 7th day of March, 1857. Appended to the deed, in addition to the usual formal acknowledgment of the receipt in full of the purchase money in the recital of it, there is a separate receipt, whereby the grantor, Thomas Pos-tles, acknowledged to have received of the grantee, McGoni-gal, the full amount of the consideration for the conveyance of the estate; thus apparently intending it to be understood that the estate conveyed was clear of the incumbrance of unpaid purchase money. There is nothing on the face of the bond to connect it with the conveyance, and to show that it related to the sale and purchase of the estate, but the parol evidence taken by the auditor shows that the bond was given for the unpaid purchase money. It was executed by Joshua McGonigal, the purchaser, and the appellant, as surety. The amount of it was made payable in instalments of one and two years from the date of the purchase; and in its condition there is power given by the obligors to any attorney, to appear for them and confess judgment to the obligee, or his assigns, for the amount secured by the obligation. This bond was, on the 5th of Janu [428] ary, 1858, assigned by Postles to Win, X. Lockwood, and the latter afterwards assigned it to the appellant, to be “at his risk of collection." It is, as we understand it, because the appellant was surety in the bond, and has taken up the same by payment, that he now claims to stand in the position of the original obligee, and to be entitled to the vendor’s lien by subrogation, and consequently to a preference in the distribution of the proceeds of the sale of the land, over the other creditors of Joshua McGonigal, the vendee. The claim assumes the original existence of the lien, and it was upon that assumption that the.case was treated and decided by the Court below. But did the lien originally exist, under the circumstances of this case? We think not. Prima fade, the lien exists in all cases of Sales of real estate for the unpaid purchase money, as against the vendee, and those claiming under him with notice; but the lien being the mere creature of a Court of Equity, existing in the nature of a secret trust, it should not, for that reason, be implied and maintained where it would operate as a means of deception, or in prejudice of good faith. Therefore, where the vendor parts with the legal estate, as in this case, with a separate receipt in full of the purchase money appended to the deed, and at the same time taking from the vendee a bond, with the responsibility of a third party as security for the purchase money, conditioned for a judgment which «would become a general and an independent lien, a Court of Equity could not do otherwise than presume, in the absence of unequivocal evidence to the- contrary, that the equitable lien Hvas intended to be waived. Such is our conclusion in this case, and it is amply supported by authority; for it is now settled by at least a decided preponderance of the well considered cases upon the subject, that the lien will be regarded as waived^ whenever any distinct and independent security, such as a mortgage, pledge of goods, or the personal responsibility of a third person, is taken for the unpaid purchase [429] money. This presumption may, it is true, be repelled by proof of an express agreement that the lien shall be retained ; but the onus of such proof is upon the party seeking to enforce the lien. 4 Kent’s Comm., 153; Brown vs. Gilman, 4 Wheat., 255. The cases upon this subject, and in support of the proposition here stated, are very fully collected in the note of the American editors to the case of Mackreth vs. Symmons, 1 Lead. Cases in Eq., 235. (Decided 9th April, 1869.) We have recently had occasion to examine this question in the case of Schwarz, Guardian of Henkel vs. Stein, 29 Md., 112; and that case was disposed of according to the principles here announced. The record discloses nothing in support of an agreement for the retention of the lien; and, indeed, there is no pre-tence that there was any such agreement. The case presents itself simply as matter of presumption from the facts stated ; and the presumption being against the existence of the lien, it follows that the order appealed from must be affirmed, with costs to the appellees. Order affirmed.