Shaw v. Tabor

Ostrander, J. (after stating the facts). The learned circuit judge was of opinion that because the bill does not point out what portion, if any, of the general balance claimed to be due, arose upon the sale and conveyance of the land, and that portion of the debt which grew out of the construction of the house is no part of the purchase price of the land, the case is controlled by the principle stated in 2 Jones on Liens, §§ 1066, 1072, and applied in Hiscock v. Norton, 42 Mich. 325, and Warner v. Bliven, 127 Mich. 665. See, also, Clark v. Stilson, 36 Mich. 482; Dunton v. Outhouse, 64 Mich. 419; Waterfield v. Wilber, 64 Mich. 642. If complainant had not delivered the deed until the house was completed and accepted, we should have no difficulty in determining that a lien existed in favor of complainant for whatever part of the purchase money was due and unpaid. Is the case made by the bill essentially different from the supposed case? There were not two contracts. The property agreed to be sold and conveyed, and which was sold and conveyed, was a lot with a dwelling house thereon. The contract of sale and purchase which is alleged is one which could be performed only by tendering the land with the improvement. The consideration was single, was to be money, and, so far as it was unpaid, was, by necessary inference from the facts stated, due and payable when the house was completed and the title to both house and lot tendered by the vendor. Complainant has conveyed what he agreed to sell and convey, and no more. Defendants have accepted the property and the title, and are in possession of that for which they agreed to pay the consideration. It was said in Palmer v. Sterling, 41 Mich. 218, 220: “ The decisions in this State have followed the old rules in equity, whereby a vendor who had a claim for unpaid purchase money is allowed a lien on the land sold by him for its payment, where nothing is done to waive or lose it. * * * But all the authorities rest upon the basis that the land was actually sold for an agreed considera [547] tion, payable at all events, and payable as the purchase price. Unless there was a sale for a price, there could be no such relation as that of unpaid vendor and responsible purchaser. The lien can only exist as collateral to a debt which was a part of the transaction and created simultaneously with the sale.” Applying this language and the principles stated here, complainant has set out a case entitling him to the relief prayed for. The third ground of demurrer is relied upon. The point seems to be ruled, adversely to appellee, by Moore v. Cheeseman, 23 Mich. 332. No statute or rule requiring a bill of this nature to be verified has been called to our attention. The decree dismissing the bill is reversed, and a decree will be entered here overruling the demurrer, with costs of both courts to complainant. The record is remanded, and defendants will be given 30 days in which to answer. Carpenter, C. J., and Montgomery, Hooker, and Moore, JJ., concurred.