Patterson v. Edwards

29 Miss. 67

• Court: Mississippi Supreme Court
• Decided: April 15, 1855
• Status: Published

Opinion

Mr. Justice Handy

delivered the opinion of the court.

This was a bill filed by the appellant in the superior court of chancery, alleging that he had conveyed certain lots of ground to Richard Edwards for the consideration of $10,000, paid in cash, and that Edwards would take up and deliver to him two specific notes,, secured by mortgage due by the vendor to the Planters Bank, and payable in February, 1840; that Edwards made the purchase for one Snodgrass, and both of them are dead without having taken up the notes to the bank, and their heirs and representatives are made parties. The bill claims a lien upon the lots for unpaid purchase-money, prays an account of the sum due on the notes to the bank, and that the lots be sold for the payment of it, for the benefit of the vendor.

The administrators of Edwards appeared and filed a demurrer to the bill, which was sustained, and the bill dismissed as to all the parties. The complainant appealed.

The case turns upon the question, whether the appellant retained a claim in the nature of a vendor’s lien, which could be enforced against the property conveyed.

It appears by the deed of conveyance which is relied upon as establishing the lien, that a part of the consideration of it was that the vendor would assume to pay certain specified notes due the Planters Bank by the vendor.

The rule which appears to be settled by the authorities is, that in order to create such a lien, there must be a debt for unpaid purchase-money to a fixed amount due directly to the vendor. If the obligation consist of a collateral covenant, or be for the discharge of a liability to a third party, no lien is retained when the conveyance is absolute; and where the obligation of the vendee to discharge such liability appears to be substituted for the purchase-money, the lien is lost, for the obligation of the purchaser is taken instead of the purchase-money, or a direct security for it. Clarke v. Royle, 3 Sim. 499; Paris v. Sweetland, 3 My. & K. 655; Buckland v. Pocknell, 13 Sim. 406; Brawley v. Catron, 8 Leigh, 522.

In this case, the obligation of the vendee cannot be considered as more than a covenant by the vendee to pay the debts due the bank; and in case of non-performance, the remedy of the vendor was an action for the breach of the contract, and he could have recovered only the damages which should be shown to have been sustained by him through the default of the ven-dee. This may have been less than the amount of the notes which the vendee had agreed to pay, and the recovery would have been accordingly. If after such action brought, the ven-dee or his representatives had discharged the vendor’s obligation to the bank, nothing more than nominal damages could have been recovered; and in this case, it is not even shown, that the vendor has been compelled to pay the notes to the bank In consequence of the' vendee’s default, or that he has sustained any damage by reason of that default. Under such circumstances, it is clear that the vendor cannot abandon the contract made with the vendee and restore his vendor’s lien, and have the property sold for the sum agreed to be paid by the vendee to the bank; and we think that the principles sanctioned by the authorities above cited lead to the conclusion, that the taking the collateral obligation of the vendee was a waiver of the lien for the purchase-money.

Under this view of the case, the obligation was against Edwards, and not against Snodgrass, and. therefore the demurrer of Edwards’s representatives brought up the equity of the whole case. If the bill could not be maintained against Edwards for the reason above stated, it is manifest that it could not be maintained against the heirs of Snodgrass. It was, therefore, useless to retain it as to them, and the whole bill was properly dismissed.

The decree is affirmed.