Butler v. Brown's heirs

5 Ohio St. 211

• Court: Ohio Supreme Court
• Decided: December 15, 1855
• Status: Published

Opinion

J. R. Swan, J.

Bissell was a competent witness under the statute.

We are satisfied that Brown did not pay the purchase money. A majority of the court are of the opinion that the rule stated by the Supreme Court in the case of Manley v. Hunt et al., 1 Ohio Rep. 257, should not be disturbed. It has for more than thirty years been acted upon as a rule of title, to wit: that when lands have been sold, the vendor becomes a trustee for the vendee, and the land ceases to be liable for the debts of the vendor on after acquired judgments. Conceding that under this rule the bank obtained no lien by its judgment, and that Butler acquired no title under the levy and sale, still Butler, as equitable assignee of the bank, should not be placed in a worse situation in relation to these lots, and the purchase money due therefor from Brown, than if no levy or sale had been made. It is just and equitable that Brown’s heirs should pay for this property before calling upon a court of chancery to quiet their title ; and it is also equitable and just that Butler, standing in the relation he does to these lots and to Bissell, should, as assignee of the bank, so far as respects the lots and the interest of the bank in the amount for which the lots were hid off, be entitled to claim re-imbursement out of the purchase money still due from Brown’s heirs. The extent of this claim of Butler it is unnecessary to now determine. Brown’s heirs must do equity by bringing into court the purchase money, before they can demand the interposition of this court to quiet their title. It may become necessary to make Bissell a party to the suit.

Decree of district court reversed, and cause remanded.

Bartley, J., dissented.