Stephens v. Anthony

37 Ark. 571

• Court: Supreme Court of Arkansas
• Decided: November 15, 1881
• Status: Published

Opinion

Harrison, J.

It is expressly declared by Section 564, Gantt’s Digest, (Hci of April 24, 1873,) that “the lien or equity held or possessed by the vendor of real estate,, when the same is expressed upon, or appears from, the face-of the deed or conveyance, shall inure to the benefit of the assignee of the note or obligation given for the purchase-money of such real estate, and may be enforced by such.

This case appears to be within the very language of the Statute. If a lien had been in terms reserved in the deed, no question could possibly arise as to its passing with the assignment of the notes, and as it plainly appears from the face of the de'ed that the purchase money had not been paid, and that the notes were given for it, there is as little room for controversy, it seems to us, as to the existence of the equitable or implied lien.

Most assuredly, if Samuel Anthony still owned the land, and the notes had not been assigned, the recital in The deed, that the price had not been paid, or, in other words, that the notes were given for it, would, in a suit by the vendor for foreclosure, be sufficient and cogent proof that it had not been paid, and of the existence of the lien ; and it is equally clear that the recital was notice to the subsequent purchasers. Deason v. Taylor, 53 Miss., 697; Honore’s Ex’r v. Bakewell, 6 B. Mon., 67; Thornton v. Knox’s Ex’r, Ib., 74; Croskey v. Chapman, 26 Ind., 333; LeNeve v. LeNeve, 2 Leading Cases in Equity, 168.

The decree is reversed, and the cause remanded to the court below, with instructions to overrule the demurrer to the complaint, and for further proceedings.