Phillips v. Saunderson

1 S. & M. 462

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

The only facts which I deem it material to notice are these. In October, 1835, the complainant, Benjamin E. Phillips, sold and conveyed to George Saunderson, a plantation and slaves in the county of Hinds. Eighteen thousand dollars of the purchase-money was to be paid when the property was delivered, the remainder of the consideration was to be paid in instalments, at different periods thereafter, and was then secured by a deed of trust on the property from Saunderson. Shortly after this, a payment of some nine thousand dollars was made by Saunderson, and thereupon possession of the property, and of the deed of conveyance, were duly delivered to him; without any security being retained for the remainder of the eighteen thousand dollars, which, by the terms of the contract, was to have been paid when such possession was delivered. This omission is alleged to have been the result of a misapprehension on the part of the complainant, he having been led to the belief, that the deed of trust covered the $18,000, which was to have been promptly paid in the manner stated, as well as the instalments to be paid thereafter. Shortly after this, Saunderson sold and conveyed the same property to the defendant Lane, who agreed, amongst other things, to pay off and discharge the money due to Phillips on the deed of trust from Saunderson. It appears that a portion of the cash payment which was to have been made to Phillips, and for which he had no security, was still unpaid at the time when Lane purchased from Saunderson, and that Lane knew that fact. Upon this state of facts, the bill prays, that the sale to Saunderson may be rescinded, or that the balance due from him, on the first payment, may be declared to be a lien on the land in the hands of Lane, and enforced by a decree of this Court. The bill charges fraud on Saunderson in procuring the possession of the deed and of the property, without paying the money which was then to have been paid. There is no proof establishing fraud in the act referred to ; and if there were, there is nothing whatever to show that Lane participated in it, or had any knowledge of such fraud, at the time of his purchase from Saunderson. Lane would, therefore, in this particular, stand as a bond fide purchaser without notice of the alleged fraud* and there could consequently be no pretext for rescinding the contract as against him. The principal question is, had Phillips an equitable lien on the land, for the money here claimed, at the time when Lane purchased from Saunderson ; because the simple notice to Lane, that the money was unpaid, cannot render the land liable in his hands, unless the money constituted an equitable lien on the land, as against Saunderson. That no such lien existed is evident, for two reasons : 1. The very nature and terms of the contract show that such a lien was not within the contemplation of the parties thereto ; because the sum of money for which it is claimed, was to have been promptly paid upon the delivery of the property ; and although its payment was waived at that moment, it was still looked to as a prompt payment. The equitable lien of a vendor can only arise where the sale is made upon a credit; here no such credit was given or contemplated as to that portion of the consideration-money for which a lien is now claimed. Such a lien arises by implication of law, and may be waived by any act of the parties, showing that it was not intended to be retained. I think that the acts of the parties, in this case, fully exclude the idea of an implied lien. 2. The second reason is, that the complainant retained an express lien upon the property as to much the larger portion of the purchase-money, thus excluding the idea that it was intended to be retained as to any amount beyond that specified in the contract. I understand the rule is settled, that, where there is an express lien on the estate, for a part of the consideration-money, it excludes the idea of an implied lien for the residue. Bond v. Kent, 2 Vern. Rep. 281 ; Fish v. Howland, 1 Paige, Rep. 31 ; Little v. Brown, 2 Leigh, Rep. 353. The same rule is recognized in the case of Brown v. Gilman (4 Wheat. 291), where Mr. Chief Justice Marshall says : “ The express contract, that the lien shall be retained to a specified extent, is equivalent to a waiver of that lien to any greater extent.”

According to this view of the case, I shall direct the bill to be dismissed, at the costs of the defendant Saunderson, who occasioned the loss and injury to the complainant by his default. Let a decree be prepared accordingly.