McLain v. Thompson

SimRall, C. J., delivered the opinion of the court. Webb and wife sold to Jesse Thompson certain lots of ground in the town of Brookhaven, for $2,500, but made no deed. Shortly afterwards Thompson bargained to sell the same lots to McLain for $2,250, half of which was paid down. At the request of McLain the deed was made to his wife directly from Webb and -wife, and McLain gave his note for the balance of the purchase money. McLain died, leaving a balance of over $800 unpaid on his note. After his death his widow, Nancy McLain, on the representation of Thompson, “that the land was bound for the balance of the purchase money,” took up her husband’s note and substituted her own. This note being past due and unpaid, Thompson brought his' bill in chancery against Mrs. McLain, claiming against her a vendor’s lien on the land. [421] The question is whether in these circumstances the claim is well founded. If the transaction stood in its original form, as it was at the time of McLain’s death, there is no doubt that the lien would be implied. Thompson was the real vendor, and for convenience merely the deed came directly from Webb and wife. Mrs. McLain was the appointee of her husband — the recipient of the title as a volunteer, constituted such by her husband. She parted with nothing of value, and does not hold the title as a bona fide purchaser. She occupies by substitution the same place .and relations towards''Thompson as her husband assumed in the negotiation, and has no better eqüity against the demand of Thompson than her husband would have had if the couveyan.ee had been made to him. Upshaw et ux. v. Hargrove, 6 S. & M., 291, 292 ; Campbell v. Henry et al., 45 Miss., 329, 330. Mrs. McLain took the land as an advancement from her husband, charged with the equity in.favor of Thompson. This lien on the estate continued so long as it remained in the hands of the vendee, and those who might take by assignment from her with notice. At the time Thompson applied to her for .her note the land was still incumbered with the equity, and the note was demanded and given on the recognition by Mrs. McLain that her estate was bound for the balance of the purchase money. If she had admitted the jixstice of the claim, and had made a verbal promise that if indulged she would pay the debt and relieve the land, surely that would not have weakened the right of Thompson. Nor is he placed in a worse predicament if she gives a written promise to pay the debt. The equity arises, although there was not originally any special agreement for the purpose. 2 Sug. on Vend., 375, 376, top page. When the parties made the negotiation Thompson had a lien on the land. Mrs. McLain conceded that it was thus [422] incumbered, arid promised in writing to j>ay the debt at a future day. Instead' of the arrangement having been gone into for the purpose of waiving or abandonirig the lien, it was acknowledged to be operative, and indulgence was given to discharge it. The real trarisaction was this : Thompson owned a debt, which was secured by a lien on the land. Mrs. McLain owned the land subject to this incumbrance. She agreed, if Thompson would give her time, she would discharge the lien by payment of the debt, and thus disincumber her property.' Undoubtedly she could have paid olf the debt to Thompson, arid obtained reimbursement out of the personal assets of her husband. ' The arrangement consummated gives her the same right. Let the decree be affirmed.'