Parker v. McBee

Campbell, C. J., delivered the opinion of the court. The lien of the vendor for the purchase-money was not waived by taking the note of the vendee and her husband for th'e price' of [138] the land. The husband was not “ security ” in the sense which makes taking security an implication of an intention to waive the lien of the vendor on the land. The lien of the vendor was not lost by the indorsement of the note by the payee upon the facts shown in the record. It was indorsed for collection merely, and was delivered to the person entitled to its proceeds, and was not assigned so as to destroy the lien of the vendor. A recovery should be had, for whatever is due upon the note, without regard to the representation made by Andrews as to the sum due. His statement did not bind his client or entitle Wilson to claim a right to settle on that basis. Andrews had no right to accept less than was due, and had no such intention. Any error into which he was led as to the balance due, and any statement he made on that subject, did not preclude a recovery of all that was owing. The reliance of Wilsón on the statement of Andrews as to the sum due, although quite natural, was at his peril as to its accuracy, for it was not within the scope of the employment of Andrews as attorney to make representations of what was due, but his business was to collect what was due, and he could not receive less, so as to discharge the debtor, nor promise to receive less, so as to entitle a third person to satisfy the debt by paying less than the sum legally due. Decree reversed.