Strickland v. Summerville

Adams, Judge, delivered the opinion of the court. This Avas an action for a balance of purchase money for [166] the sale of a tract of land in Jackson county, and for the enforcement of a vendor’s lien against the land. The evidence was contradictory, but the preponderance of the testimony shows the leading facts to be, that the plaintiff made a verbal sale of the land to one Jesse, who took possession and borrowed some money to pay for the land, and gave his negotiable note for the same which the plaintiff indorsed and had to pay; that Jesse afterwards sold the land to the defendant Summerville, and plaintiff agreed to make Summerville the deed, provided he would pay the balance of the purchase money; and the deed was accordingly made with that understanding. Summerville afterwards sold and conveyed the land to the defendant Lattimore, who purchased with notice of plaintiff’s claim. The question of waiver of the vendor’s lien does not apply to this case. As long as the vendor retains the legal title there can be no waiver of the lien for the unpaid purchase money. The title being in himself, he can retain it till he is fully paid, and the taking other or additional security of itself is no waiver of this right. (Adams vs. Cowherd, 30 Mo,, 458.) A vendor retaining the legal title is in a very different situation in regard to the land sold, from one who has made an absolute title without reserving in the deed any lien for the unpaid purchase money. Therefore, there can be no question about the retention of the lien so far as Jesse was concerned, and in regard to Summerville, he expressly agreed to pay the balance claimed by plaintiff', and there is no pretense that there was any waiver of the plaintiff’s right subsequent to the conveyance to him. As Lattimore took his conveyance with notice, the land in his hands is subject to the plaintiff’s lien. Judgment affirmed. The other judges concur.