Smith v. High

Ashe, J.

The only exception taken in the court below was to the refusal of the court to grant an order to sell the land described in the complaint, and the consideration of the alleged error involves the only question raised by the appeal, to-wit, whether a note or bond given for land is a lien on the land for the purchase money.

It has been settled in this state that the vendor of real estate who has conveyed it by deed has no lien upon the land for the purchase money.

Womble v. Battle, 3 Ired. Eq., 182 ;

Cameron v. Mason, 7 Ired. Eq., 180 ;

Simmons v. Spruill, 3 Jones Eq., 9 . And this is still the law, unless as contended it has been altered by the constitution of 1868. But there is nothing in that instrument which has effected any alteration of the law in this respect.

It might at first sight seem that such a lien as that contended for by the plaintiff was given by the concluding sentence of section two of article ten of the constitution, where it is declared: “ But no property shall be exempt from sale for taxes or for payment of obligations contracted for the purchase of said premises.” In interpreting this concluding part of the section which was added as a qualification of its provisions, it must be construed with the context which declares that the real property, &c., of any resident of this state not exceeding the value of one thousand dollars shall be exempt from sale under execution or other final process, obtained on any debt. What follows is a proviso or exception to the general provision of the section, and should be construed as if it read: “ But no property shall be exempt from sale for taxes or from execution for payment *95 of obligations contracted for the purchase of said premises.” This gives no lien to the holder of the note for the purchase money, but its plain and evident meaning is, that if such holder shall obtain a judgment on the instrument and issue his execution against the vendee,, his right to a homestead in the land purchased by him shall not be an impediment to the sale of the land under the execution. The. creditor holding the note may proceed to sell, just as he might have sold, any land belonging to the debtor before the adoption of the constitution.

And for further proof that the note creates no lien on the land, if the vendee should sell the land to another before any docketed judgment against him, the land in the hands of the purchaser would not be liable to be sold under an execution against the first vendee. In the case of Hoskins v. Wall, 77 N. C., 249 , Chief Justice Peakson speaking for the court, said :■ “ Suppose the vendee sells the land to one who knows it has not been paid for, the purchaser has a good title, for the vendor can get no judgment against him, and a judgment against the vendee will not reach property that he has sold. So-the vendor, although he has the notes given for the purchase money, has no lien, nothing ‘ that sticks’ like a mortgage or docketed judgment.”

The tv o infant defendants, Mary and Elizabeth George, were improperly made parties to the action. The judgment of the superior court must be affirmed against D. P. High, as administrator of Forney George, and judgment entered in behalf of the defendants, Mary and Elizabeth, that they go without day and recover their costs.

Modified and affirmed.