Sheppard v. Thomas

26 Ark. 617

• Court: Supreme Court of Arkansas
• Decided: June 15, 1871
• Status: Published

Opinions

McCluRe, C. J.

It appears from the record in this case that, on the 25th of January, 1860, Payne and Robinson executed and delivered to James Sheppard a deed that recites:

“That in consideration of the sum of thirty thousand dollars» in hand paid, and the further sum of eighty-six thousand, one hundred and forty dollars to be paid us (them) by the said James Sheppard in five equal annual installments * * * * do hereby grant, bargain, sell and convey unto said Sheppard, the following described lands,, negroes and personal property, in the county of Jefferson and State of Arkansas.”

The deed describes six hundred and twenty acres of land, forty-six negro slaves and other personal property. Eollowing this description are the usual covenants and warranty, as to the lands and slaves.

The deed further recites that it is made upon the condition: “that said Sheppard shall well and truly pay the said sum of $86 140, purchase money, remaining due and unpaid. That said $86 140, remaining due and unpaid as aforesaid, together with the interest and cost, shall be and remain a lien on the lands, slaves and personal property until the same shall be fully paid off' and discharged, when and whereupon, and not before, this deed shall become absolute and in fee simple forever.”

Payne and Robinson further retained the right “to subject the land, slaves and personal property, or any part thereof, to •the payment of said sum of $86 140, or any part thereof, as the same may become due and payable,” and expressly exempted, “all right, in law or equity, to recover the purchase money or any part thereof from any other lands, negroes or property of the said James Sheppard, but rely entirely on said lien for security and payment.”

Sheppard executed his five writings obligatory for $17 288 each, and delivered them to Payne and Robinson. Two of these writings obligatory have been paid off by Sheppard. The other three, falling due on the 1st of February, lSGá-A and 64, were, on the 1st of September, 1865, assigned to Samuel B. Thomas.

On the 19th of March, 1866, Thomas filed his bill, in the Jefferson county circuit court, setting up the sale by' Payne and Robinson to Sheppard, and the assignment of the notes to himself. The relief asked is, for a decree against Sheppard, for said several sums of money and interest that remains unpaid, etc. That complainant’s lien be enforced on all the increase of the aforesaid property, and that the aforesaid lands and personal property, that remain, be sold for the payment of complainant’s debt, interest and costs, and if not sufficient to satisfy said debt, interest and costs, that the defendant be decreed to pay the amount of money that may have come into his hands tor cotton, corn, hay and millet that may have been raised on the lands aforesaid, etc.”

Sheppard in his answer admits the execution and delivery of the deed to him by Payne and Robinson; the payment of $30.000, and the execution and delivery of the five writings obligatory, and the assignment of said three writings to Thomas. He further states that in the original bargain and sale, the land was valued at $37.200 ; that the slaves were estimated and valued at $57.500; that the. legal title to said slaves, by a special reservation in the deed, was retained by Payne and Robinson; that since said sale said slaves have been liberated by the act of the government and are now free; that the consideration expressed in said deed, to the amount of $57.500, (the value of the slaves) has wholly failed, and prays that, inasmuch as the legal title*1 to said slaves was held and specifically retained by said Pajme and Robinson, on the final hearing of the case he may receive a credit for $57.500, as the value of said negro slaves; that Payne and Robinson cannot now make any title to.

At the hearing a decree was rendered against Sheppard, for $66.791 54, debt and interest and declared to be a lien on said lands, in the nature of a mortgage; that Sheppard’s equity of redemption therein be foreclosed and’ in default of payment on ■or before 6th of April, 1868, that said lands be sold to satisfy the decree, and in default of payment, that Thomas have exe•cution, as at law, for the residue. Erom this decree Sheppard appealed to this court.

One of the questions to be determined in this case is: whether the deed executed, by Payne and Robinson, to Sheppard, conveyed eo insianti, an absolute estate. in fee simple; or whether it conveys an estate upon condition. If the estate is conveyed “upon condition,” the question then arises, is the condition precedent or subsequent ? If precedent, the estate does not. pass until the performance-of-the condition; if subsequent, the estate passed at the execution and delivery of the deed. 'Whei-e the condition is precedent, the grantee elects whether he will perform ; but where the condition is subsequent, the grantor elects as to whether he will re-enter the estate or waive the forfeiture, and compel a performance.

Ail law writers agree that there ape no technical words to 'distinguish a condition precedent from a condition subsequent, and assert that the same words may create either, according to the intent of the person who creates it. 1 Tenn. Rep. 645; 2 Caine, 252 Vesey, 170.

How, if the condition be subsequeiit or precedent, “according to the intent of the party who creates it,” the next inquiry will be to find out the intent of Payne and Robinson. This can only bo done by referring to the language employed in the deed.

The deed contains all the formal and apt words of conveyance usually' employed in the alienation of real property, and but for the provisos and conditions added thereto, would admit of but one ’construction.

There are three provisos in the deed; the first of which reads as follows: '•'■Provided always, nevertheless, and this deed is made upon the condition that the said James Sheppard shall well and truly pay or cause to be paid the sum of $86,140, purchase money; remaining due and unpaid as aforesaid, with all the interest that may accrue thereon, according to the tenor and effect of his said five writings obligatory.” If this had been the sole proviso in the deed, an estate upon condition is all that would have passed to Sheppard, and, in default of the payment of the $86,140, Fayne and Robinson could have reentered the realty by an action of ejectment; or they could have waived the forfeiture, and taken a judgment at law for the amount due them. This being true, the first proviso amounts to a condition subsequent.

The second proviso is: “that the said sum of $86,140, purchase money,so remaining due and unpaid, as aforesaid, together with all interest and costs that may accrue thereon, shall be and remain a lien on all and singular the lands/ slaves and personalty, hereinbefore mentioned and described, and also on the increase thereof, and all additions that may be made thereto, until the same shall be fully paid off and discharged.” If this proviso stopped at this point, the irresistible inference would be, that inasmuch as the grantors make use of the word “lien,” that they intended to convey an absolute estate, subject to no conditions whatever; but it does not stop; it continues, and is concluded by the declaration, that, “when and whereupon and not before, this deed shall become absolute, and in fee simple forever.” The closing language, of the second proviso, seems to declare that the deed, itself, shall not become absolute and in fee simple forever, until the payment of the entire purchase money. This declaration is not reconcilable with the retention of a “lien.” The retention of title, and the reservation of a “lien” upon the same property is inconsistent with and at variance with the ordinary transactions of mankind.

The third proviso declares, in default of payment, or any part thereof, that Payne and Robinson “do hereby waive and relinquish all our right, in law or equity, to recover the same, or any part thereof, of, and from any other lands, negroes, or property of the said James Sheppard, but do hereby expressly exempt the same from all liability for the payment of said purchase money, so remaining due and unpaid,, as aforesaid,. and rely entirely on said lien for security and payment.” Here we Rave a clearly expressed intention, on the part of Payne and Robinson, that goes to show tlie vesting of an absolute estate in Sheppard. If such was not their intention, they would hardly have made use of the assertion that they “rely entirely on their said “lien” for security and payment. The assertion that they rely entirely on their “lien” for security and payment, negatives the idea that they intended to rely upon the retention of title, as in the case of a title bond, as a 'means of enforcing the purchase money.

Taking all the conditions and provisos together, and construing them in para materia, we are forced to the-conclusion that the deed of Payne and Robinson to Sheppard passed an absolute estate, in fee simple, at the execution and delivery of the-deed. The deed was acknowledged and filed for record on the 26th of January, 1860, which may be regarded as the date of the delivery.

This brings us to the consideration of a question that is not without precedent, and that is, was the “equitable lien” that Payne and Robinson retained to themselves, transferred to Thomas by the mere assignment of the notes?

This court held in Shall v. Biscoe et al., (18 Ark. 162), that “where the widow conveys land by deed, taking the note of the vendee for the purchase money, a mere assignment of the note does not transfer to the assignee the benefit of the vendor’s lien upon the land for the purchase money.”

It is urged that the deed before the court, in Shall v. Biscoe, had no words specifically reserving the lien, as there is in this case. This is true. But does the reservation in this instance give to Payne-and Robinson, or their assigns, a lien of a higher grade than they would have had if a deed had been executed in which no attempt had been made to retain a lien? If the words employed in the reservation of an equitable right amount to no more than a mere assertion of what the law isj such words are mere surplusage. Payne and Robinson, as vendors, had a lien against the’lands sold for the purchase money without any assertion of the fact in the body of the deed. This being true, can Payne and Robinson, by the mere recital of what the law is, make the vendor’s lien assignable to Thomas, by a mere assignment of the note, in the ordinary course of business?

In Moore & Cail v. Anders, (14 Ark., 635,) this court said: “that the equitable lien of the vendor is personal to him, and is not, unless under some peculiar circumstances, assignable.”

Thomas comes into 'a court of equity and asks that the property described in the deed of Payne and Robinson to Sheppard, be sold to pay his notes. There is no allegation in his bill that he beeame subrogated to the personal or equitable rights of the vendors, nor is there anything in the bill showing any peculiar equitable circumstances attending the assignment to him. By his bill he stands before this court as a purchaser in the ordinary course of business. He bases his claim to enter a court of equity, on the bare fact that, because a vendor’s lien is asserted in the deed, Payne and Robinson assigned that lien to him when they assigned the notes.

The clause in the deed, by which the lien is said to be created, and which Thomas claims was assigned to him by the mere assignment of the notes, reads as follows :

“And we, the said James B. Payne and Elizabeth H. Robinson, herein and hereby reserving and. retaining an equitable lien, on all and singular the lands, negroes and personal property, with the increase thereof, with the right to subject the same to the payment of said sum of $'86,140, purchase money, so remaining due and unpaid as aforesaid or any part thereof; * * in default of payment, or any part thereof,'do hereby waive and relinquish all our right in law or equity, to recover the same or any part thereof, from any other lands or negroes of said James Sheppard, but do hereby expressly exempt the same from all liability from the payment of said purchase money, so remaining due and unpaid as aforesaid, and rely entirely on jpur said lien for security and payment.”

It will be observed that the reservation of lien, by the terms of the deed, is to Payne and Robinson, personally, and not to-themselves, heirs or assigns. At the time of the execution of' the deed, the uniform holding of this court was, that the lien of the vendor was personal. ' The inference to be drawn from this fact is, that if an assignable lien was intended to have been-created, that words to that effect would have been employed. ■This court has frequently held that, where a title bond is executed, the assignment of the notes, given for the purchase money, carrys with it the vendor’s lien ; but this holding is placed upon the ground that no t\tle has passed. In the case of a mortgage, it has held that the assignment of the notes, described in the mortgage, gave to the holder the right to come into a court of equity and ask a foreclosure; but this deed is in no manner similar to a mortgage. In a mortgage, the property is conveyed absolutely, to secure the payment of money or other property; or to secure the performance of some act or duty. The deed in this case was executed, not to secure-the payment of money, but for the purpose of conveying title. In the case of a title bond, and in the case of a mortgage, the title remains in the person to whom the money or other property is due; but in this case, the title has passed to the grantee* and the grantor has covenanted to “rely entirely on the said lien for security and payment.” The difference is, that in the case of a title bond,-or in the case of a mortgage, the creditor relies on a legal title for security and payment, and in the case now before us, the creditor relies on his equitable lien fox’ security and payment. The lien given by the mortgage is the act of the debtor; its manner and mode of execution is fixed by the statute of the State, and may be regarded as purely a legal lien. The best evidence that these parties did not intend to ci’eate a “lien in the nature of a mortgage,” is, that they described the lien retained by them as “an equitable lien.”' The phrase, “equitable lien,” has a well defined and fixed meaning, and includes such liens as are cognizable in a court of' equity only. The words descriptive of the lien retained in this base are well known to the law, and if there is one principle of the law better settled than another, it is that where a party uses technical language in a deed or other instrument, the law presumes he intended it to be understood in a technical sense.

There are many things that enter into every contract in writing that is not expressed, or if expressed, would he a m§je reiteration of what the law is. It is laid down in Broom’s Legal Maxims, that “the expression óf a clause which the law implies, works nothing,” and as an illustration says: “if land be let to two persons for the term of their lives, this creates a joint tenancy; and if the words, “and the survivor of them” are added, they will he mere surplusage, because by law, the term would go to the survivor.” Brown’s Legal Maxims, 424.

Judge Parsons says, “if the parties have'provided nothing different, but the very same thing which the law would have implied, that the provision may bo regarded as made twice,, once by the parties and once by the law. And as one of these' is surplusage, that made by the parties is deemed to be so, and hence, is derived the rule of construction, that “the expression, of those thipgs which the law implies, works nothing.” Under the decisions in this State, for the last twenty years, the expression in a title bond, that the vendor retained or reserved a lien for the purchase money, would have been regarded as a work of superfluity, because the courts of this State had held that the vendor had a lien without any such assertion.

In' cases where the vendor had passed title by deed, the holding of this court has been that the vendor retained a lien for the payment of the purchase money. If Payne and Bobinson,. the vendors, had brought suit on these notes, they could as well have enforced their lien, in the absence of any words-retaining an “equitable lien,” as they could by their assertion.

If A executes his note and agrees to pay six per centum interest after maturity, the holder takes nothing by reason of the words “six per eentuig,” because the law would have given six per centum interest in the absence of those words, and -so we conceive Payne and Robinson would have had “an equitable lien” without any stipulation.

How the question arises, can Thomas construe this “equitable lien” into a lien by contract ? Unless he can, the lien is not assignable. An “equitable lien,” by contract, is to us an unheard of thing. Chancellor Kitty, in Iglehart v. Armigeo, (1 Bland’s Chancery, Md.,) says “an equitable lien is an incum-brance on land which can only be held by the vendor; that an assignee of the vendor can derive no benefit from such lien, nor can it be assigned like a bond or mortgage.”

We have already shown that Payne and Robinson could have as well enforced the vendor’s lien, in the absence of the assertion of its retention, as they could have done, if it had not been asserted, and the reason for this is, that the law implied the lien. It is an universal rule that the vendee must show a waiver of the lien of the vendor, and that if he fails the law will presume its retention. If this be so, the assertion of the retention of an “equitable lien,” was a work of supererogation, which Judge Pausons says, is mere surplusage, by which the party takes nothing.

This brings the case within the rule laid down in Shall v. Biscoe, if the words, retaining the vendor’s lien, are to be treated as surplusage. This case stands precisely in the condition that that case was when this court declared, “that a mere assignment of the notes given for the purchase money, does not transfer to the assignee the benefit of the vendor’s lien on the land for the purchase money.”

This thing, called an “equitable lien,” is not a product of this country, it comes to us with the equity practice derived from the mother country. It is a well established rule of the law that, in adopting the laws of another State, the rule of construction adopted in that country should. be allowed. In ■all the English books, we have been unable to find a case, wherein it is asserted, that an “equitabl^lien” may be assigned or that it virtually passed along with the assignment, of the bonds given for the purchase money.

The decree of the Jefferson circuit court is reversed and set aside, and the cause is remanded with instruction to dismiss the hill for want of equity.