Green v. Rule

100 So. 380, 135 Miss. 810, 1924 Miss. LEXIS 72

• Court: Mississippi Supreme Court
• Decided: June 9, 1924
• Docket: No. 24106
• Status: Published

Opinion

Holden, J.,

delivered the opinion of the court.

The appellee Mrs. Lida Rule, and others, filed their bill against R. R. Green and others to enforce an equitable vendor’s lien for the purchase money of certain land sold by appellees to appellants. From a decree overruling a demurrer to the bill, this appeal is taken.

The bill charges that complainants conveyed the property to R. R. Green in consideration of two notes, each for the sum of one thousand, seven hundred and fifty-seven dollars and forty-two cents executed by one J. W. Riddell. The vendee warranted the payment of the notes to the vendor. The notes proved to be worthless, and the purchase price of the land remained unpaid.

The bill further charges there was an agreement and understanding between the vendor and vendee that a lien upon the land was retained for the purchase money, notwithstanding the purchase money was represented by the said two notes executed by the outside party, J. W. Riddell; that the subsequent incumbrance to one of the appellants was taken with notice of the fact that the vendor’s lien for the purchase money existed and was retained upon the land.

The question presented for our decision is whether or not an implied lien can be, and was, retained under the terms of the deed here involved. The appellant urges the view that the Riddell notes assigned and warranted by the grantee, appellant, was an independent and distinct obligation accepted as a security, or as a payment, for the purchase money, and that therefore there was no implied vendor’s lien, or that it was thereby waived.

The opposite contention of appellees is that: First, the notes assigned as a consideration in the deed represented the purchase money, which was warranted by the grantee, and that it was secured by a lien upon the land until paid, regardless of the fact the notes were executed by an outside party; and, second, that even if it be true the consideration in the deed shows prima facie that the .security for the purchase money was an independent one and was therefore a waiver of the lien, still it is a question of fact as to whether or not the parties intended to waive the lien by accepting the notes executed by the third party, and the presumption may be overcome by conclusive proof to the contrary.

After careful consideration of the question presented and an extensive review of the authorities on the point, we think there was an equitable or implied lien upon the land in favor of the vendor, appellee, for the purchase money. The notes assigned by the vendee, appellant, the payment of which was warranted by him, represented the purchase price of the land, and when the notes proved worthless the purchase money remained unpaid, and the vendor’s lien, if not waived, still existed to secure its payment. Pitts v. Parker, 44 Miss. 247. And if the lien was not waived on account of the acceptance of the notes executed by the outside third party, as was done in the case before us, then the lien is valid and enforceable against the land.

Our court has held the acceptance of an independent and separate security by the vendor for the balance of the purchase money is, prima facie, a waiver of the- vendor’s lien. But it is unnecessary for us to decide in this case whether or not the guaranteed notes of the third party transferred here was an independent and outside security for the purchase money, because if it be conceded that the notes assigned to the vendor by the vendee was an independent obligation which would presumptively waive the purchase-money lien, still the law is that the intent of the parties as to whether the lien was waived may be shown by parol testimony; and since the bill charges it was agreed between the seller and purchaser that the lien was retained for the purchase price, and the demurrer admits the charge, it would he a question of fact to he determined hy the lower court as to wdiether or not there was a retention of the lien for the purchase money. Fonda v. Jones, 42 Miss. 792, 2 Am. Rep. 669; 3 Pomeroy, Equity, section 1252.

Therefore the decree of the chancellor overruling the demurrer to the hill was correct, and is affirmed, the cause remanded, and the appellant allowed thirty days in which to plead further after mandate reaches lower court.

Affirmed and remanded.