Trotter v. Erwin

Mr. Justice Handy delivered the opinion of the court. This was a bill filed in the district chancery court at Columbus by the appellee, to subject to the vendor’s lien for unpaid [777] purchase-money a tract of land, sold by the appellee to one Ford. The bill alleges that the sale was made on the 14th January, 1837, Ford giving, in part for the purchase-money, his note for $1,000, to become due on the 14th of January, 1840, and Erwin binding himself to convey the land upon the payment of the purchase-money in full; that Ford left this State in the year 1843, and became a non-resident, leaving the note unpaid, and the same remains wholly unpaid; that a title has never been made to Ford by Erwin, but that he is prepared to do so upon the payment of the purchase-money; that the appellant, a resident of Marshall county in this State, sets up some claim, the nature of which is unknown to the complainant, to the land or some part of it, but which is invalid against the complainant. The prayer is for the payment of the debt due on the note by Ford for the purchase-money, and on default thereof, that the land be sold for that purpose, it being situate in the Columbus chancery district. The appellant Trotter appeared and pleaded to the jurisdiction of the court, that he was the sole defendant resident in this State; that he resided in Marshall county, and should have been sued in the district chancery court at Holly Springs. To' this the complainant filed a demurrer, which was sustained. The appellant then demurred to the bill on several grounds, among which was, that the claim was barred by the statute of limitations. This demurrer was overruled, from which order this appeal was prosecuted. Two questions are presented in behalf of the appellant as grounds of error. 1st, that the court had not jurisdiction ; and, 2d, that the claim was barred by limitation. First. The statute establishing the district chancery courts shows that the jurisdiction in this case was properly exercised by the court below. Hutch. Co. 776, et seq. It is true, the 2d section provides that process for any person in either of the chancery districts established by the act “ shall be returnable to the district chancery court holden for the county in which he or she shall reside.” But the 9th section provides for the case of a defendant who is sued in one of the [778] district courts not embracing the county in which he has his residence and freehold, and gives such defendant the right, on terms stated, to remove the- cause to the superior court of chancery. But it expressly provides that “ no cause shall be dismissed from said district chancery courts for want of jurisdiction, if neither party applies for a removal of the same to the superior court of chancery, and the case is of such a nature that it might have been commenced and prosecuted in the superior court of chancery.” It is conceded that this suit might have been brought in the superior court of chancery, and no effort was made to obtain a removal of it under the provisions of the statute. The effort of the appellant was to dismiss it, which was expressly prohibited by the clause of the statute above stated. It is, therefore, clear that neither the plea noiv the demurrer raising the question of jurisdiction should have been sustained. Second. Upon the question of the statute of limitations, it is insisted in behalf of the appellee, 1st, that the lien of the vendor has the same legal effect as 'a mortgage,, and therefore is not barred by the same lapse of time that would bar the debt; 2d, that the note is not barred, because the maker left this State in the year 1843, before the expiration of six years from its maturity, and has since been a non-resident; which time must be excepted from the running of the statute, under the 11th section of the" act of 1844, Hutch. Dig. 831. Let us examine these positions. The first point raises the question, whether the vendor’s lien has the same extent and legal incidents as a mortgage, in reference to the statute of limitations. XT he statute of limitations, which would bar a debt secured by mortgage, has been held not to bar the remedy upon the mortgage, because, although the debt is the principal and the mortgage the incident, yet the security is distinct in its form from the debt, and has a legal import more extensive than the mere evidence of the debt. Thus, it is a conveyance of the legal estate which in law would entitle the mortgagee to his action for the po^ession of the mortgaged premises. It is also a specific lien on the jjjloperty, capable of registration, and of [779] which all persons may and are bound to take notice when registered. In its form it is separate and distinct from the debt, and an additional and more solemn acknowledgment of and security for the debt. None of these characteristics appertain to the vendor’s lien for unpaid purchase-money. It consists solely in the debt, has no form apart from it, and has been held to be capable of being enforced against the vendee and sub-purchasers with notice, by analogy to a mortgage, and upon the general equitable principle that the purchaser should not be entitled to the land until he had paid for it, and not because there was any substantive agreement between the parties that it should be so bound, or that such lien might be enforced against the land. It is a secret equity, and is not recognized as against the rights of a-purchaser from the vendee without notice. These are familiar principles which pervade all the cases in which the nature and incidents of liens of this kind have been discussed and settled; and it maybe safely said that such a lien is not a mortgage, but that it has merely the incident of a mortgage of being enforceable in equity against the property, subject to the vendor’s equitable claim. But consisting solely in the debt, it must be subject to all the incidents of the debt, and cannot be enforced when the debt could not be; and consequently, it would be barred by the same lapse of time that would bar the debt. It has been said, in opposition to this view, that the land is held by the vendee subject to a trust for the payment of the purchase-money, and that the statute of limitations does not operate upon trust estates. Moulton v. Harrison, 1 Bland, Ch. R. 491; Lingan v. Henderson, Ib. 281. But this is manifestly an untenable position. For, in the first place, the trust could not exist in the vendee except where the legal title had been conveyed to him, which is not the case in many instances, and in this instance; and 2d, it would be but a case of resulting and implied trust, against which the statute runs, and not one of direct, technical trust. We think, therefore, that the vendor’s right to subject the land must be governed, in reference to the question of limitation, by his right to enforce paymen^of his note; and that [780] when the note is barred by the statute, the remedy to enforce the equitable lien is also barred. The next question is, whether the saving of the 11th section of the statute, excepting from its operation the time of the vendee’s absence from the State, applies to the remedy in equity for enforcing the vendor’s Hen. It is insisted, in behalf of the appellant, that the vendor might have enforced his Hen, notwithstanding the absence of the. vendee, and that, therefore, the saving of absence does not apply to such a case. But we have held above, that the rights of the vendor are governed by the rules applicable to the debt. If they are so governed, he is entitled to all the benefit of the exceptions in the statute touching the collection of the debt, though the mode of collection may be by enforcement of his equitable lien. It would be but another mode of enforcing payment of the note; and the vendor might well have delayed enforcing his Hen in consequence of the vendee’s absence, and under the hope that the money would be paid before the note would be barred. And if the statute applied to bar the enforcement of the Hen because it barred the note, it would be but just to give to the Hen the benefit of all exceptions aHowed to the note. On the other hand, if the statute in relation to suing upon the note does not govern the case, then there is no statute limiting the enforcement of the vendor’s lien, such a case not being enumerated in the statute, and it would only be barred by the common law rule of presumption from lapse of time, which would not be sufficient to create a bar in this case. In either view, therefore, the right to enforce the lien is not barred by the statute. We are of opinion that there was no error in holding the plea to the jurisdiction to be insufficient, and in overruling the demurrer to the bill. The decree is, therefore, affirmed, and the cause remanded, and the appellant required to answer within sixty days.