Boynton v. Champlin

Mr. Justice Breese delivered the opinion of the Court:

The only important question made upon this record is, was George Walrod’s acceptance of the bill drawn on him by Morris Walrod in payment of this land, a waiver of appellee’s lien as vendor of the land %

This court took occasion to say in the case of Conover v. Warren, 1 Gilm. 498 , that these equitable liens on real estate are generally unknown to the world, and frequently operate injuriously on the rights of creditors and purchasers, and ought not to be enforced but in cases where the right is clearly and distinctly made out. And in the case of The Trustees of Schools v. Wright, 11 Ill. 603 , we said: “ These secret liens on real estate, because generally, in point of fact—however it may be in legal contemplation — unknown to the parties to be affected by them, are often productive of much injustice, and ought not to be encouraged.”

And in Richards v. Leaming et al., 27 Ill. 431 , we said this lien ought not to be extended beyond the requirements of the settled principles of equity law. It is secret, intangible, springing up without bargain and without promise, and very frequently without any intention or suspicion of either party at the time of the original transaction, and is but the fruit of the will of the chancellor. We are admonished by these observations, to adhere closely to the rule as expounded in courts of equity, whose creature these liens are, and to give no effect to a lien claimed where evidence exists of its waiver. What is considered a waiver of a vendor’s lien ?

The cases cited on this point by the counsel for appellee are for the most part admitted to be good authority where they apply. They are nearly all based on the text in 3 Sugden on Vendors, 124, which is to this effect as quoted by appellee: If A sells an estate, and takes a promissory note for part of the purchase money, and then the púrehaser sells to B, who has notice that A had not received all his purchase money, the land, in equity, is chargeable in the hands of B with the money due on the note. The decisions founded upon this text, on examination, all proceed on the ground that “the promissory note ” taken was the note of the vendee. This is apparent from the leading case of Nairn v. Prowse, 6 Ves. Jr. 752. Taking the vendee’s note shows, a credit was given to him, not to supersede the lien, hut for the purpose of ascertaining the debt, and countervailing the receipt of the purchase money acknowledged in the conveyance.

Where, however, the vendor accepts the security of a third person, the rule is now well established, though it has been a vexed question, that by such acceptance the lien is gone. The mere taking the bond, note or covenant of the vendee does not repel the lien, but where a distinct and independent security is taken, either of property or of the responsibility of a third person, it is repelled. In the case of Gilman v. Brown et al., 1 Mason’s Cir. C. 190, Story, Justice, took occasion to examine and comment on all the cases on this point, and in the course of his opinion he says, on a careful examination of all the authorities, he did not find a single case* in which it had been held, if the vendor took a personal collateral security, binding others as well as the vendee, that under such circumstances a lien exists on the land itself in favor of the vendor. In Cole v. Scott, 2 Wash. Cir. C. 141, referred to by Justice Stoey, it was held, that, if the vendor of land takes security, or the vendee has sold to a third person without notice, this lien is lost. And Stoey says, in the case in Mason, that, “ looking to the principle upon which the original doctrine of lien is established, he had no hesitation in declaring, that taking the security of a third person for the purchase money, ought to be held a complete waiver of any lien upon the land; at all events it was pri/ma faeie evidence of a waiver, and the onus is on the vendor to prove, by the most cogent and irresistible circumstances, that it should not have that effect. This case decides, that taking negotiable notes of a third party is a distinct and independent security, and that such security extinguished any implied lien for the purchase money. To the same effect is the case of Conover v. Warren et al., 1 Gilm. 501 , before cited.

The bill drawn by Morris Walrod on George Walrod, in favor of appellee, was accepted by George, and thereby he became the principal debtor,—he placed himself in the condition of a maker of a note, and was primarily liable. In accepting it, appellee took an independent security, which extinguished his lien.

The proof also shows that George Walrod has been at all times ready to take up his acceptance, and pay the appellee whenever he shall demand payment.

We think these considerations dispose of appellee’s claim to a lien on this land. The court below having entertained different views, the decree of that court must be reversed and the bill dismissed.

Decree reversed*