Pearl v. Hervey

Hough, J. — It appears from the petition in this case that in May, 1863, Havid J. Hervey purchased of James M. Foreman certain tracts of land situated.in Montgomery and Warren counties, for the sum of $600. ‘The petition recités : “ That on the 19th day of May, 1863, at a meeting of the said parties by agreement, for the purpose' of completing the said purchase, and the said Havid J. Hervey not then having the said amount of the purchase money, agreed upon, as aforesaid, to pay for the said r.eal estate, an agreement, as follows, was then and there entered into by and between said Havid J. Hervey, James M. Foreman and Patience Wyatt, plaintiff’s testatrix, to-wit: That said Foreman and his wife should convey said real estate to defendant, Marinda C. Hervey, wife of said Havid J. Her-vey, at and for the price and consideration of $600 ; that said Havid J. Hervey should pay to said Foreman $200 of tire said $600, and that the balance of said sumí of $600, to-wit: $400 remaining unpaid should be advanced to the said Foreman by the said Patience Wyatt; and that by virtue of the payment by said Wyatt of the said amount to said Foreman, the said Wyatt should have and hold a first claim and lien upon said real estate, and' the same should be held to secure to her the payment of said amount at the expiration of twelve months, with ten per cent, interest thereon, as the purchase money of said real estate; and it was further agreed by and between said Havid J. Hervey and Marinda C. Hervey and Patience Wyatt., that for the purpose of better securing and preserving to the said Wyatt the said first claim and lien on said real estate, upon the conveyance of the said real estate to said Marinda C. Hervey, the same should be conveyed to this plaintiff as trustee in trust to secure to said Wyatt the payment of the said $400 at the expiration of said time, together with interest thereon as aforesaid. Plaintiff further states that 166 on the day of the said agreement, and in pursuance thereof, said Foreman and wife conveyed the said real estate by deed to Marinda O. Hervey, and the said David J. Hervey paid to said Foreman the said sum of $200, and the said Wyatt advanced and paid over to said Foreman the said sum of $400; that on said day and at said time the said David J. and Marinda 0. Hervey, then desiring, intending and undertaking to convey the said real estate to this plaintiff as trustee in trust as aforesaid, caused to be executed and delivered a certain instrument of writing intending and, purporting therein to be a conveyance of the said real estate to this plaintiff as trustee in trust as aforesaid, which instrument of writing was signed and executed alone by said Marinda C. Hervey, the said David J. Her-vey neglecting and failing to sign and execute' the same; * * that on the 5th day of September, 1870, the said David J. and Marinda O. Hervey, at the instance and request of the defendant, George Pitman Smith, the son and agent of one George Smith, Sr., executed and delivered their certain deed of trust to one G. W. Hammett, as trustee, and conveying therein to said trustee the said real estate in trust to secure the payment of certain indebtedness then past due and owing by said David J. Her-vey to said George Smith, Sr.; that on the 29th day -of November, 1873, a sale of the said real estate was had and made under and by virtue of the terms of said deed .of trust to- said Hammett, and at the said sale the defendant, George Pitman Smith, became and was the purchaser of the said real estate at and for the price and sum of $55 > * * that at and prior to the execution and delivery of the said deed of trust to the said Hammett, the said George Smith, Sr., and the defendant, George Pitman Smith, had actual and constructive notice of the aforesaid conveyance of the said real estate to said Marinda C. Her-vey, and of the payment, as aforesaid, of the said sum of $400 by said Wyatt to said Foreman, and of the aforesaid first claim and lien on said real estate in favor of said 167 Wyatt, to secure to her the payment of said amount and interest at said rate, as purchase money of said real estate due and unpaid, and of the said agreement by and between defendants, David J. and Marinda 0. Hervey, and said Eoremhn and said Wyatt, as stated hereinbefore, and of each and every particular, and each item of said agreement, and in particular that said real estate was tó be held to secure to said Wyatt the payment of said sum of $400 and interest thereon at said rate, and of the execution and delivery of said instrument of wilting by said Marinda C. Hervey to the plaintiff, as trustee as aforesaid ; and he avers that at the said time, and immediately after the said notice, the defendant, George Pitman Smith, then acting as agent as aforesaid, then and there recognized and acknowledged the said claim and lien on said real estate in favor of said Wyatt to be a first claim and lien, and that the claim and lien created by said deed of trust to said Hammett was a subsequent claim and lien to the said claim and lien of the said Wyatt.” The prayer of the petition is, that a lien be declared to exist in favor of Patience Wyatt, on the land described, for the money advanced by her, and that the same be enforced against said land so purchased by the defendant, Smith. To this petition the defendants demurred, and final judgment was rendered thereon in their favor. This is not a proceeding to reform the deed of Marinda C. Hervey, and if it were it could not be maintained, inasmuch as it does not appear that the conveyance from' Foreman to her created in her a separate estate, and the conveyance executed by her, therefore, in which her husband failed to join, cannot be made the basis of any action either at law or in equity. Shroyer v. Nickell, 55 Mo. 264; Marquat v. Marquat, 7 How. Pr. 417; s. c., 12 N. Y. 336. Neither can this suit be maintained for the purpose of enforcing a vendor’s lien in favor of Patience Wyatt for the $400 advanced by her to Hervey to complete his payment for the land, as no vendor’s lien arises when the vendor executes and de 168 livers a conveyance to the purchaser, and the whole purchase money is paid to the vendor. Skaggs v. Nelson, 25 Miss. 88. Nor can any equitable lien on. Mrs. Hervey’s interest in the land conveyed to her, arise-from the mere agreement of Mr. and Mrs. Hervey that Mrs. Wyatt should have such lien, as it does not appear that Mrs. Hervey was capable of contracting in reference thereto. The agreement, however, will be good as against Mr. Hervey so far as his marital interest is concerned, unless it should appear that such agreement was not in writing and Mr. Iler-vcy should repudiate the same by a plea of the statute of frauds. In this view of the case we will reverse the judgment and remand the cause. All concur.