Garson v. Green

1 Johns. Ch. 308, 1814 N.Y. LEXIS 184, 1814 N.Y. Misc. LEXIS 41

• Court: New York Court of Chancery
• Decided: October 7, 1814
• Status: Published

Opinion

The Chancellor.

It is very evident from the proof, that, the note was given in part payment of the consideration for the sale, by the plaintiff, of his undivided third part of the house and lot mentioned in the pleadings; and there is no evidence that the vendor did not mean to trust to the estate sold, as a pledge for his money. It is a well-settled rule, (6 Ves. 483. 759, 760. 1 Schoale & Lefroy, 132. 1 Bro. 420. Sugden, ch. 12. p. 352.,) that the vendor has a lien on the estate for the purchase money, while the estate is in the hands of the vendee, and when there is no contract that the lien, by implication, was not intended to be reserved. Prima facie the purchase money is a lien on the land, and it lies on the purchaser to show that the vendor agreed to rest on other security. The death of the vendee does not alter the claim ; for, as Lord Redesdale observed, in a like case, (Hughes v. Kearney, 1 Schoale & Lefroy, 132.,) " the heir cannot be permitted to hold what his ancestor unconscientiously obtained; and is not a thing unconscientiously obtained when the consideration is not paid ?” Taking a note for the purchase money does not affect the vendor’s lien, and if part be paid, the lien is good as to the residue, and the vendee becomes a trustee as to that which is unpaid. (Blackburn v. Gregson, 1 Bro. 420.) The failure of the personal estate is sufficiently shown in the first instance; and there is nothing to gainsay it, and I shall, accordingly, decree a sale of the one third of the house and lot, towards satisfaction of the note.

Decree accordingly.