Simily v. Adams

GOODE, J. Plaintiff’s case, to have a lien declared, is strong. The effect of the agreement in reference to the foreclosure sale was that Adams was to get the land and protect Simily on the note they owed to Andrew Broedlow, and also the one they were sureties on for Earnest Broedlow. Adams paid the latter in full, the other only partially. His bid was $1,450, actually or approximately the amount of the two. He was excused from paying any part of the bid in cash to the trustee on account of his agreeing to take care of those debts. Simily owned half of the deed of trust note and was entitled to half the proceeds of foreclosure to the amount of it. The discharge of the notes for which they were both liable, was substituted in lieu of the cash, as the consideration which Adams625 should give for the land. If Simily did not have a vendor’s lien by virtue of the transaction, the trustee surely did, and might have enforced it at any time for Simily’s half against Adams or his heirs, since he had been relieved from requiring a money payment by the consent of the holders of the debt for which he foreclosed. Barrett v. Lewis, 116 Ind. 120; Blankenship v. Williams, decided by this court but unreported as yet. Adams couldn’t hold the land exempt from the lien until he paid or performed the consideration. That would be against conscience as was said in Pratt v. Clark, 57 Mo. 189. His omission to fully perform, compelled the respondent to take care of part of the debt that it was agreed the land should stand good for, and he should settle; which was equivalent to respondent’s paying, under compulsion, a portion of the purchase price and entitled him to be subrogated to the trustee’s lien therefor. Demeter v. Wilcox, 115 Mo. 635; Williams v. Crow, 84 Mo. 298; Bennett v. Shipley, 82 Mo. 448; Edmondson v. Phillips, 73 Mo. 57; Pratt v. Clark, supra; Haverly v. Becker, 4 N. Y. 169. This case can not be excluded, by any just logic, from the force of the principles declared in those cited; in fact it is similar to them in all the circumstances calling for the application and enforcement of an equitable lien, particularly Williams v. Crow, supra, where the vendor had sold the land on an agreement that the vendee should protect him against liability for a lease’ by which it was incumbered. The vendor was afterwards mulcted in damages on account of said lease, and it was held the vendee ought to reimburse him. The opinion says: ^The lease in question was an incumbrance on the land of which Crow was fully informed, and being such, the agreement of Crow to save Bailey harmless and pay all damages growing out of it may be held to be as much a part of the purchase price as if the land had been incumbered [626] by a mortgage to secure a debt wbicb Grow assumed to pay.” Tbe latter is tbe present case- There, tbe agreement was in writing, but Pratt v. Clark, supra, bolds that in contracts like tbe'present, persons becoming entitled to a lien are not cut off by tbe statute of frauds, and also that tbe taking of covenants from tbe vendee for tbe payment of tbe purchase money, does not amount to a waiver of tbe lien. Indeed, liens of this character are never held to 'be within tbe statute of frauds, and even though Adams’s undertaking to give a deed of trust on tbe land may have been, this would not affect tbe right- to proceed against it for tbe purchase • money, when be failed to pay or perform tbe consideration, because that right does not rest on contract, but arises by legal implication. Tbe statute of frauds bears on agreements. Tbe homestead estate of Adams’s widow and children is subordinate to tbe charge against tbe land for tbe money wbicb be was to pay for it. Bennett v. Shipley, supra. When tbe purchase money, or a portion of it, is payable to a third person, such person is held to have a lien. Francis v. Wells, 2 Colo. 660. When tbe purchaser of land assumes as part or all of the price, a debt wbicb bis vendor owes to a third person, this debt continues to be a charge on tbe land and may be enforced by tbe promisee for bis own benefit. Woodall v. Kelly, 85 Ala. 368; 7 Am. St. Rep. 57; Whetsell v. Roberts, 31 Ohio St. 503; Mitchel v. Butt, 45 Ga. 162; DeLisle v. Moss, 34 La. Ann. 164; Tysen v. Perkins, 59 Texas 300. It was held in Edmondson v. Phillips, supra, where tbe sheriff bad sold tbe land under a partition decree, that the heirs might enforce tbe lien for the purchase money. In Pratt v. Clark the vendors bad agreed with tbe vendee to relieve tbe property of an incumbrance, wbicb they failed to do, and tbe plaintiff was given a charge in the nature of a vendor’s lien against the property be bad conveyed to tbe defendants in exchange for tbe [627] amount of tbe debt. It was ruled, also, that in sucb instances equity regards the substance rather than the form of the transaction. This is consonant to accepted principles. In the case at bar, Adams’s estate is insolvent/ as was the defendant’s in the one just cited. Plaintiff has no remedy except by the lien he seeks. The judgment was for the right party and is affirmed. All concur.