Smith v. Rowland

L Vendor’s Lien for Purchase-Money; Contract. A vendor’s lien on real estate for unpaid purchase-money may be created by the express contract of the parties at the time of the sale and conveyance of such real estate. 2.--Where the parties insert provisions in the deed of conveyance, and in the promissory note given for the unpaid purchase-money, stipulating for a vendor’s lien, such lien is thereby created. 3.--Remedy of Vendor. The vendor may commence an action to enforce such a lien without first exhausting his remedy against the personal estate of the vendee; and neither is the vendor bound to show that the vendee has no personal property subject to execution.

Error from Osage District Qowrt. Action to enforce a vendor’s lien on lands sold by Smith to the Rowlands, created by contract between these parties. The petition set forth the deed and note evidencing the contract. The Rowlands had sold and conveyed the land, and it was held by several different parties, all of whom were joined as co-defendants. The defendants demurred. Trial on the demurrer, at the April Term 1873 of the district court, and judgment in favor of the defendants. Smith, plaintiff, brings the case to this court on error. 1. The defendant contends that a vendor’s lien at common law is not i’ecognized in this state, and that this lien is the same as a vendor’s lien at common law. While the plaintiff admits the first proposition, he claims that a lien may be reserved in a deed, and may be enforced in a court of equity in like manner as a lien created by a deed of trust, or deed of mortgage; in short, that a mortgage-deed or deed-of-trust is nothing but an equitable lien created by contract in writing. A mortgage is defined as “a mere security creating a lien upon property, but vesting no title whatever either before or after condition broken.” (Chick v. Willetts, 2 Kas., 384.) The lien reserved in this deed is precisely of this nature, and may correctly be defined as a mere security in the nature of a lien upon the deeded property. In the above case the court states that the common-law attributes of mortgages have been set aside; but for all that, the intention of the parties may still be enforced. In the case of Simpson v. Mundee, 3 Kas., 172, it nowhere appears that a lien may not be reserved in a deed, or created by contract. It is simply asserted in that case that no liens are created by implications of law, but the case says nothing of liens arising out of the contract of the parties. The lien there spoken of is described as an “ impalpable entity,” a “protean quality,” an “ethereal essence.” This certainly is not this lien which arises out of the plain language of the conveyance, and is easily understood by any man of ordinary intelligence. 2. There is no force in the position of the defendant, that the plaintiff must show that he has exhausted his remedy against the personal estate of his vendee, or that he has no personal estate out of which the claim can be made, even conceding this to .be true in a proceeding to enforce a lien at common law, which we very much doubt. Sparks v. Hess, 15 Gal, 186. 1. The deed of plaintiff Smith to the Eowlands was made in Illinois, but the land conveyed lies in Kansas. The contract therefore is a Kansas contract, and governed entirely by Kansas laws. When Smith in his deed to the Eowlands reserved a “ vendor’s lien ” he attempted to reserve what the counsel for plaintiff denominates a “vendor’s lien at common law,” for he must necessarily go to the adjudicated cases of other states, defining the vendor’s lien and prescribing its mode of being enforced, (which this court has decided have no force or authority here,) to ascertain what rights he acquired by his reservation of a “vendor’s lien.” The plaintiff asks that the law of vendor’s lien as administered in England and in some of the United States shall be administered here — beeause he has in terms reserved a vendor’s lien in his conveyance to the Eowlands. We understand the decisions of this court to go to the bottom of this subject of vendor’s lien, and not to the surface, as counsel for plaintiff in error contends. His construction of the decisions is, that where an absolute deed on its face shows that a portion of the purchase-money is unpaid, and there is no specific reservation of the vendor’s lien in the deed, then the vendor acquires or retains no such lien, but where in addition to this the vendor specifically reserves a “ vendor’s lien ” then that the law of vendor’s lien as administered in England will be administered here to define the vendor’s rights and afford him his remedy. Then, if the grantee at the time of the purchase has not sufficient personal property out of which the purchase-money can be made, the land is liable to the lien. If he shall acquire a sufficiency for that purpose, then the land is freed from any liability to the lien. .But if insolvency shall return then the liability returns. (Sinypson v. Mundee, 3 Kas., 172.) When specifically named and reserved as a “vendor’s lien,” by the vendor, the vendor’s lien, (which by this court in 3 Kas., 184, is described as “an impalpable entity, a protean quality, an ethereal essence which no man can graphically describe, and of which few can have anything like a clear conception,”) becomes a palpable entity, capable of description and conception, and the nature of the whole thing becomes changed. The plaintiff’s “reservation” is void for vagueness and uncertainty ; and whether he claims a vendor’s lien by reason of the non-payment of the purchase-money, with notice to the defendants of its non-payment, or because he has contracted for an impalpable entity, makes no difference. It was not the question in Simpson v. Mundee, whether the parties had contracted for a vendor’s lien, but whether any such thing was recognized in this state, and whether the law of “vendor’s lien” as administered in England would be administered in like manner in this state — whether, if a party purchased a piece of real estate free from any lien at the time of his purchase it should subsequently, by the insolvency of another party, become subject to a lien — whether the question, of whether there was a lien, should be a matter of secresy, obscurity and doubt, and metaphysical disquisition, and the transfer of real estate be impeded thereby. The general policy of our real-estate laws is to require everything concerning the title to, or rights in it to be in writing. Secret trusts are discountenanced. (3 Kas., 184.) Do not the same evils result whether this court holds that a “vendor’s lien” results from nonpayment of purchase-money with notice of nonpayment to third parties, or whether parties create it by so many words? It is its vagueness, the inherent difficulty of justly enforcing a vendor’s lien, its changing and secret character, its essential conflict with the policy of our real-estate laws, not that the parties had contracted for it, that led this court to decide that the law of vendor’s lien as administered in England is not necessarily a part of the law of this state. 2. Conceding the position of plaintiff, that plaintiff reserved a “vendor’s lien” which would be enforced, a bill filed to enforce such a lien must show that the plaintiff has exhausted his remedy against the personal estate of his vendee, or that he has no personal estate out of which the claim can be made; and judgment fo'r a sale under the lien in the first instance, unless the record-shows that the vendee has no personal property, is erroneous. In this case there is no allegation in the petition on this point. 12 Ind., 410; 2 Md., ,137; Leading Cases in Eq., 366.