Croskey v. Chapman

Erazer, J.

This was a suit to enforce a vendor’s lien on lands for purchase money. • It was alleged in the complaint that one Alelen, on the 6th of July, 1857, sold and conveyed the lands to Chapman for $4,500; that $3,200 of the purchase money was unpaid at the'time of the conveyance, and the indebtedness was evidenced by seven promissory notes of that date, executed by Chapman to Alden, five of which yet remained unpaid and had been assigned to the plaintiff) (appellant here) to-wit: One for $224 due two years after date, one for $650 due i-n five years, one for $680 due in six years, one for $710 due in seven years and one for $740 due in eight years; that no security was taken for the said unpaid purchase money; that on the 9th of October, 1857, Chapman conveyed the land to the defendant Shean, who had full notice, actual and constructive, that said purchase money was unpaid; that Chapman was and is wholly insolvent, and has absconded. Chapman was defaulted. Shean answered: 1. General denial; 2.'Payment to Chapman of the entire purchase money before notice that the purchase money to Alden was unpaid. The plaintiff' replied by way of denial. The issue was tried by the court and found for the defendant Shean, who had judgment over an unsuccessful motion for a new trial.

The only question presented for our consideration is whether the evidence was sufficient to charge Shean with notice that his vendor had not paid the purchase money.

Alien’s deed to Chapman recited all the facts as to how *334 the purchase money was to be paid, and particularly described the notes given therefor. This deed was duly recorded before the conveyance by Chapman to Shean.

W. A. Porter, for appellant.

The following authorities are decisive of the question. Case v. Bumstead, 24 Ind., 429 ; Melross v. Scott, 18 Ind., 250 . These cases rest upon the principle that constructive notice to a purchaser is sufficient to charge the land in his hands with a vendor’s lien for purchase money. A purchaser is charged for this purpose with notice of facts recited in a deed under which he claims, as in this case, even though such deed be not recorded. Wiseman v. Hutchinson, 20 Ind., 40 . 1 Story’s Eq. Jur. § 401.

The cases cited are abundantly supported by authority. See note to LeNeve v. LeNeve, 2 Leading Cases in Eq. 36.

The judgment is reversed, with costs, and the cause remanded for a new trial.