Rogers v. James , 33 Ark. 77 ( 1878 )

ENGLISH, C. J. :

This was a bill to enforce a vendor’s lien, tiled on the Chancery side of the Circuit Court of Dallas County, by James J. Rogers, against Jefferson James, and by an amended bill, William P. Rogers was also made defendant.

A demurrer to the bill as amended, filed by the defendant James, was sustained by the Court, and the plaintiff, James J. Rogers, appealed to this Court.

The material facts alleged by the amended bill, are as follows:

On the 24th day of October, 1873, William P. Rogers sold to Jefferson James, the South-West Quarter of the Southeast Quarter, and the South-East Quarter of the South- West Quarter of Section 21, Township 10, South Range 17 West, containing eighty acres and situated in Dallas County, for $400, of which James paid him $100 in cash, and gave him the following obligation for the balance :

“ By or before the first of -, one thousand eight hundred and seventy-five, I promise to pay W. P. Rogers, ox-bearer, the sum of $300.00, with ten per cent, interest from date until paid, for and in consideration of a certain tract or parcel of land, to-wit: the South-East quarter, the NorthEast quarter, North-West quarter, South-West quarter of Section 21, Township ten, (10), seventeen West, for which said land is to stand collateral security for the same.

“ October 24th, 1873.

“JEFFERSON JAMES, [SEAL.] ”

That by the contract of sale, the note for the unpaid pur-chaso money was to be payable on the first of Januax-y, 1875, but by inadvertance, the month of its matuxity was omitted in the note, in which also, the land was misdesci-ibed by mistake.

That on the first of January, 1874, W. P. Rogers, the vendor, executed to James, at his request, a deed for the land, which was written by James, and which was absolute on its face, reciting the payment of the purchase money, but upon the understanding that the land was to be still bound for the payment of the note.

That on the 6th of February, 1874, William P. Rogers, being indebted to the plaintiff, James P. Rogers, for the purpose of paying and satisfying said indebtedness, assigned to him the note by the following endorsement thereon :

“ I do assign over all my right and interest to the within note to James J. Rogers, for value received of him this 6th day of February, 1874.

“W. P. Rogers.”

The bill alleged that the note had not been paid, and prayed a decree against both defendants for the amount of the note, that the vendor’s lien (which plaintiff insisted had been transferred to him by the assignment of the note) be enforced, and the land condemned and Bold for tbe satisfaction of the decree, etc.

When William P. Rogers sold the land to appellee, and took bis note for the purchase money, he retained the title to the land as security for the debt, and had he then' assigned the note to appellant, the security would have followed as an incident to the debt. See cases cited and reviewed in Campbell v. lian-Jcin, et al., 28 Ark., 407.

But before the assignment of the note to appellant, William P. Rogers conveyed the land by absolute deed, reciting the payment of the purchase money to appellee, after which he had no security for the payment of the note, but a vendor’s lien in equity. The note was not a mortgage upon the laud, nor in the nature of a mortgage.

It was decided by this Court upon full review of authorities, in Shall, ad’mr. v. Biscoe, et al., 18 Ark., 142, that the vendor’s equitable lien is personal, and does not pass to an assignee by assignment of a note for purchase money, and this case has been repeatedly approved and followed.

In Hecht v. Spean, adm’r., 27 Ark., 229, the vendor in an assignment of a note for purchase money, expressly attempted to transfer his equitable lien upon the lands, describing them, to the assignee, but this court held that the lien could not be so transferred.

Had the note been re-assigned to William P. Rogers, or had he taken it up on failure of appellee to pay it, the debt and lien would have been re-united in him, and he could have maintained a bill to enforce the lien. Bernays v. Field, 29 Ark., 218 ; Turner, use, etc. v. Hornor, adm’r., Ib. 440. But such is not the case made by the bill.

There are no allegations in the bill to charge William P. Rogers, who was made defendant. It is not alleged that the note was duly presented to the maker for payment, that payment was refused, and that he had due notice thereof. Adams, adm’r. v. Boyd, MS.

Decree affirmed.