Same v. Same

Norval, J.

After the filing of the opinion in this case the Hawleys and Briscoe and Van Duyn each filed a motion for a rehearing. It is claimed by Briscoe and Van Duyn that they having acted upon the agreement of Mrs. Birdsall to take a mortgage from Cropsey upon the Adams county land for her equity in the land conveyed to them, and paid a portion of the purchase price and agreed to pay the remainder before Mrs. Birdsall notified them that Cropsey refused to execute the mortgage, she and the plaintiff claiming under her are estopped to claim any lien upon the land conveyed to Bri scoe and Van D uyn. True, a portion of the consideration had been paid to the Hawleys and a mortgage had been given fora part before Briscoe and Van Duyn were notified that Cropsey refused to execute the mortgage. The plaintiff, however, was not given a lien because the mortgage received by the Hawleys had not been paid when Briscoe and Van Duyn received the notice, but because they had not then conveyed the Adams county land. That part of the consideration was still in their hands, and they fully understood that as a condition for the release by Mrs. Birdsall of her equity in the property in controversy, she was to receive the mortgage from Cropsey. After receiving the notice Briscoe and Van Duyn could have protected themselves, as well as Mrs. Birdsall, by refusing to convey the Adams county land to Cropsey.

Counsel also insists that as the Hawleys had the first *681 lien upon the premises for the amount of the unpaid purchase money due them under their contract with the Cropseys and Mrs. Birdsall, Briscoe and Yan Duyn should be subrogated to the rights of the Hawleys to the amount of their lien, and should, therefore, be repaid the one-third of the remaining purchase price which they paid the Hawleys before the appellant’s lien could attach. Briscoe and Yan Duyn purchased from Cropsey and received the conveyance from him. Part of the consideration went to the Hawleys and the balance to Cropsey. Under the contract entered into between Mrs. Birdsall and Cropsey it devolved upon the latter to pay the Hawleys the balance of the purchase price. The payment made by Briscoe and Yan Duyn to the Hawleys was, under the circumstances, a payment by Cropsey. He acquired no lien on account of this payment, and Briscoe and Yan Duyn acquired no greater rights than Cropsey, their grantor, had. Upon a re-examination of the case we are satisfied that the plaintiff is entitled to the lien as allowed by the former opinion, and Briscoe and Yan Duyn’s application for a rehearing is therefore denied.

The Hawleys were entitled to their money. That they have received and nothing more. They are not liable for the act of Bi’iscoe and Yan Duyn in conveying the Adams county land, and are therefore not affected by the lien of the plaintiff. The decree of the district court in dismissing the plaintiff’s bill as to the Hawleys is right, and is affirmed as to them. The original opinion is modified accordingly.

Judgment accobdingly.

The other judges concur.