Stewart v. Ives

9 Miss. 197

• Court: Mississippi Supreme Court
• Decided: July 15, 1843
• Status: Published

Opinion

Mr. Justice Clayton

delivered the opinion of the court.

James Stewart, in the year 1836, sold a tract of land in the county of Yalobusha, to Thomas B. Ives, and gave him a bond to make title when the purchase money should be paid. The vendor afterwards died, leaving the complainants his heirs at law, and they also became his administrators. They procured an order from the probate court of Jefferson county, decreeing them to make a deed for the land so sold. The deed was subsequently made and delivered, by their agent, to Ives, to enable him to convey to Torrance and Smith, to whom he had sold it. No money was paid by Ives’, but to procure the deed from the agent, he promised to give his note, with good personal security, or to direct Torrance and Smith to pay the amount out of what they owed him. The deed was then delivered to Ives, and he executed a conveyance to Torrance and Smith. It appears that Torranee and Smith were,' at one time, informed of the promise of Ives, to substitute them as debtors, in his place, to Stewart; but before the conveyance to them, they were informed by the agent of the complainants, that Ives had made a different arrangement of the whole matter with him, and that they might proceed to complete their contract with Ives.

Ives was also indebted in a large sum to Anderson and Driver, for the purchase of land, a part of which he had also sold to Torrance and Smith. In order to obtain a deed from Anderson and Driver, for the land he had sold to Torrance and Smith, and to some other, he, about the same time, induced Torrance and Smith to execute their notes to Anderson and Driver, for all they owed him, received a credit for the amount on his notes to Anderson and Driver, and gave tan acquittance to Torrance and Smith.

, The bill was filed against these several parties, by the complainants, with a view to subject the notes of Torrance and Smith, in the hands of Anderson and Driver, to the payment of their claim. The bill was dismissed by the chancellor, and from that decree a writ of error was prosecuted by this court.

The vendor of land, who takes no security for the purchase money, has a lien upon the land sold; and this lien, unless waived by some act of the party, continues as long as the land remains in the hands of the original purchaser; and it also passes with the land, into the hands of 'a sub-vendee, who purchases with notice of such lien. Fish v. Howland, 1 Paige, 20. In case of a re-sale, this lien will extend to the purchase money in the hands of the sub-vendee, as well as to the land itself; but the lien on the fund cannot be more extensive than on the land.1 The lien cannot attach to the land, in the hands of a purchaser, for valuable consideration, without notice, neither can the money be reached when it has been paid over, or when the second purchaser has become bound to pay to third persons before notice. Moore v. Holcombe, 3 Leigh, 597.

To apply these principles to the case before us. Torrance and Smith had no notice of any equitable lien of the complainants, at the time of their purchase from Ives. They received a deed without any such notice. They then executed their notes to Anderson and Driver, and procured a discharge from Ives, who also obtained a credit for the amount from Anderson and Driver; and this was all done before the complainants gave notice of their equity. This was equivalent to a payment to Ives, for they discharged so much of his debt, and came under a new liability to his creditor. Notice, after this, came too late.

If the complainants were induced to. make a deed, by the promises of Ives, which he failed to perform, it is their misfortune. But it cannot give them a right to follow the fund into the hands of Anderson and Driver, who took it without notice of their equity, and without fraud, and who are, consequently, entitled to hold it.

Besides all this, the complainants abandoned their lien upon the land, and do not, in their bill, seek to enforce any claim against that, but only to subject the purchase money due from the sub-vendees. We think this cannot he done, and that the lien, as to both subjects, is equally gone. See 3 Leigh, 607.

Upon the whole, we think the decree of the chancellor, dismissing the bill, is correct, and must be affirmed.

Decree affirmed.

By Mr. Justice Turner.

The decree of the chancellor must be affirmed. The answers deny all the equity of complainant’s bill, and there is no proof.

When Stewart’s agent made the deed, it was done with a view to other security. Ives defrauded Stewart by false promises; but innocent purchasers, third persons, cannot be made to suffer for this.