Lindbloom v. Kidston , 2 Alaska 292 ( 1904 )

MOORE, District Judge.

It is apprehended that that portion of the evidence which is comprised in the Exhibit D now attached to the answer is the evidence upon which the defendants mainly rely to support their motion. This same Exhibit D is in fact the Exhibit A described in the defendants’ motion. There was no evidence at the. trial that Erik O. Eindbloom ever assumed to pay N. O. Hultberg the sum of $2,000, the amount of the purchase price still alleged to be due N. O. Hultberg; nor is it alleged in the proposed amendments to the defendants’ answer that it was so assumed.

The defendants, by the motion made, abandoned the defense which they made at the trial, and seek to set up another one, the substance of which is about as follows: It is true the plaintiff loaned the money in controversy in this suit to William Kidston, but at the time he took his mortgage given to secure' the loan of $2,500 the mortgage claim was bound by grantor’s lien of $2,000, the balance of the purchase price for said claim still due N. O. Hultberg from William Kidston.

Such an abandonment of the ground of defense could never be permitted by a court in the midst of a trial, and I fail to see why defendants have any better right to set it up after-wards by the way of a resubmission of the case. Nor am I persuaded that if the answer were amended as proposed the defendants could prevail in a new trial. They could only prevail by showing the court conclusively that N. O. Hultberg had a grantor’s or vendor’s lien upon the mortgaged claim, and that Hindbloom’s lien under the mortgage was acquired subject thereto.

The defendants assume as law that vendors of realty in Alaska acquire an equitable lien for the deferred and unpaid part of the purchase price of realty after a delivery of an absolute deed to the purchaser. In Oregon the Supreme Court of that' state sets at rest all controversy as to what the law of Oregon is on this subject by its decision in the case of Frame et al. v. Sliter et al., 45 Pac. 290, 34 L. R. A. 690, 54 Am. St. Rep. 781, delivered in 1896, wherein the court (Chief Justice Bean delivering the opinion) entered into a thorough review of the line of previous decisions relating to the existence of such liens in that state. The court, also, in that opinion, discusses the question upon principle, and the conclusion is reached therein that such liens have never been recognized authoritatively as forming a part of the law of real, property in that state. I can see no provision of our Code by which such a lien is referred to either expressly or by implication, nor does counsel for the motion cite the court to any provision which does.

While such liens are recognized and enforced in some states, yet the doctrine of equitable liens is not favored by the courts, inasmuch as to recognize them is to uphold secret liens, to the ensnaring oftentimes of innocent purchasers and creditors. “The lien,” as is said by Chief Justice Marshall in Bayley v. Greenleaf, 7 Wheat. (U. S.) 51, 5 L. Ed. 393, “is a secret, invisible trust, known only to the vendor and vendee and to those to whom it .may be communicated in fact. To the world the vendee appears to hold the estate divested of any trust whatever, and credit is given to him in the confidence that the property is his own, in equity as well as in law. A vendor relying upon this lien ought to reduce it to a mortgage, so as to give notice to the world.” Such liens are inconsistent with the spirit and intent of the registration laws of our Code, a trap for the unwary, and a means put in the hands of a dishonest vendor, by which he may trammel the free and easy subsequent conveyance of realty from which he gives up his title.

The motion cannot be granted, in fine, for two reasons, each conclusive of the main question:

(1) The defendants are not entitled to the resubmission, no error ■ appearing to have been committed by the court in the former trial, and none being imputed either in the papers or in counsel’s argument for the motion.

(2) If the case were resubmitted for trial, the court could not adjudge upon the evidence admitted or offered at the trial already had that any equitable lien arose in favor of the defendants, or any of them.

The motion to vacate the late submission of the case to the court and to permit the proposed amendment of the answer is now denied. Accordingly, findings of fact and conclusions of law may be prepared, to the end that judgment for the claim in suit, with the interest, attorney’s commission of $250, and costs, etc., may be entered thereon in favor of the plaintiff.