Bottorf v. Conner

1 Blackf. 287, 1823 Ind. LEXIS 28

• Court: Indiana Supreme Court
• Decided: November 12, 1823
• Status: Published

Opinion

Scott, J.

Conner sold to Bottorf a tract of land; and the purchase-money remaining unpaid, Conner, without resorting to a Court of law for the recovery of his debt, brought his bill in equity to have the benefit of his lien on the land. The defendant demurred to the relief prayed for, because the complainant had not shown in his bill that he had no adequate remedy at law. The Court overruled the demurrer, and gave a final decree for the compMnant according to the prayer of his bill.

This was wrong. When the demurrer was overruled, the defendant ought to have been permitted to answer: and the Couri should have made an order to that effect. 3 Bl. Com. 446. la the case of Evans v. Goodlet, in this Court, a definitive decree was made on overruling the demurrer; but this was done with the absent and at the express request of the counsel, who informed the Court thatthey rested their case on the demurrer, and that if that were overruled they did not wish to answer

(1). But this in the present case is unimportant, as the demurrer was improperly overruled. The doctrine is clear, that a vendor holds a lien on land sold, for the amount of the purchase-money; but this lien is not an original and absolute charge upon the land a but only an equitable right to resort to it, in case of failure of) personal estate. 1 Harr. Ch. 280. — Sugd. Vend. 363. — 2 Wash. 142. When a bill is brought for relief in equity, in a case in which the party has a full and complete remedy at law, the defendant may demur. 1 Harr. Ch. 282. In this case, there is nothing to show that the complainant below could not obtain his right, in the ordinary course of justice, in a Court of law.

Thompson and Naylor, for the appellant. Nelson, for the appellee.

Per Curiam.

The decree is reversed, with costs*

Ante, p. 246.