Palmer v. Deslauriers

34 A. 1108, 19 R.I. 505, 1896 R.I. LEXIS 32

Opinion

Matteson, C. J.

We do not think that the bill can be sustained as a hill to enforce a vendor’s lien. The taking of the mortgage on the land for $2,000 was an implied waiver of such a lien for the remaining $3,000. Brown v. Gilman, 4 Wheat. 256, 290, 291; Fish v. Howland, 1 Paige, 20, 30, 31; Phillips v. Saunderson, 2 S. & M. (Ch.) 462, 465; note to Mackreth v. Symmons, 1 White & Tudor’s Lead. Cas. Eq. (Hare and Wallace’s notes,) 48G. But the complainant contends that the conveyance of the land to Mrs. Young created an equitable debt against her in his favor for the $3,000. .Chaffee v. Maker, 17 R. I. 738, 742 ; Dean v. Rounds, 18 R. I. 436, 437-439 ; that inasmuch as the debt is an equitable debt and she, therefore, cannot be sued at law, as well as by reason of the fraudulent collusion between her and Deslauriers averred in the bill, he is entitled to maintain this suit. Merchants’ National Bank v. Paine 13 R. I. 592; Ginn v. Brown, 14 R. I. 524; Gardner v. Gardner, 17 R. I. 751 ; Elliot v. Lawhead, 43 Ohio St. 171; 2 Beach, Mod. Eq. Jur. § 894. These points, however, have not been discussed in the respondents’ brief and can be more intelligently considered when the facts are more fully before us. Without passing on them, therefore, and with a view to a fuller presentation of the case after the answer has been filed and the proofs have been taken, we overrule the demurrer.

James Tillinghast, Edwin D. McGuinness & John Doran, for complainant. Edward D. Bassett & Edward L. Mitchell, for respondents.