McBrayer v. Collins , 57 Ky. 833 ( 1858 )

Judge Simpson

delivered the opinion of the court.

In the case of Anderson's adm'r. vs. Wells, 6 B. Mon. 541., it was said by this court, that if a lien for the consideration exist in favor of the assignor of a bond for a title, against a remote assignee with notice, the lien is sustained only in analogy to the lien which exists in favor of the vendor who has conveyed by absolute deed, and can be carried no further. The reason for this doctrine is, that the assignment of the bond for a title, is a transfer of the legal title to the same, and, as. effectually invests the assignee with all the- assignor’s interest therein, as an absolute conveyance invests in the vendee all the vendor’s interest in the estate conveyed..

1. A purchaser of a title bond is proteetedfrom liability for any part of the consideration which theaasignormay owe of the consideration of his purchase, if he have not notice that it is unpaid.

As therefore under the operation of the present law, a vendor has no lien, unless it be expressly stated in the deed what part of the purchase money remains unpaid, {Revised Statutes, 543,) it would seem to follow, if the lien of the assignor of a title boiid is only sustained in analogy to the lien which a vendor has who has conveyed by absolute deed, and can be carried no further, that it is necessary to the reservation of a lien-in his favor, that the assignment should expressly state what part of the purchase money remained unpaid.

But we do not deem it necessary to decide this question at this time, for if it be conceded that a lien did exist while the property remained in the hands of Yount, and would have followed it into the hands of Collins, his vendee, if he had purchased with notice, still we are of opinion that under the circumstances of this case, it cannot be enforced against Collins, the present owner of the land.

There is no proof of either actual or constructive notice to Collins before he purchased, of the existence of the lien now attempted to be 'asserted by the plaintiff. The statement of the amount of the consideration in the assignment of- the bond from Buckley to Yount, was not sufficient to put him upon an inquiry as to its payment, inasmuch as it was not stated that any part of it remained unpaid. It did not amount to any thing more than a statement that the assignment had been made for value received. It set out the price of the purchase/but afforded no intimation that any part of it was?to be paid thereafter. It did not therefore amount to constructive notice of any lien whatever upon the land.

Although the defendant, Collins, in his answer to the plaintiff’s original petition only denied all personal knowledge of the existence of the debt, yet his answer to the amended petition contains a full and positive denial of any knowledge on the subject, or of any information whatever that any part of the purchase money due from Yount to Buckley remained unpaid. It therefore devolved on the plaintiff to prove notice, which he failed to do.

2. But if the assignee of a title bond has not fully paid the price to his assignor, any balance in his hands may right fully be directed to be paid to the original vendor, in discharge of the balance of the consideration upaid. 3. If the obligor in a note induce anassignee to take it, representing the demand aa good and would be paid at maturity, he cannot afterwards assert an equity against the as signor to defeat the assignee in his recovery of the debt.

It is true, as a general principle, that a lien can be enforced against a purchaser without notice, to the extent that the purchase money which he has stipulated to pay remains unpaid; because to that extent his purchase is not complete. And such a lien can be enforced not only while the notes for the purchase money remain in the hands of his vendor, but even after they have passed into the hands of an ordinary assignee.

Here however, the purchaser, before he had any notice of the plaintiff's lien, placed himself in an attitude by which he is compelled to pay the note to the assignee, who was induced to take it by his representations that the debt was good, and would be paid. He is therefore estopped to set up any equity, whether he knew of its existence or not, against the debt in the hands of the assignee. His representations of the goodness of the debt before the assignment, render him liable for it in all events, and as between him and the present plaintiff, such liability is tantamount to a payment of it before notice of the lien. Suppose, instead of executing a note to Yount for the balance of the purchase money, he had executed it directly to Taylor, would it not then, so far as his vendor was concerned, have been a substantial payment of the purchase money ? The liability of Collins is precisely the same that it would have been-df he had executed his note to Taylor, and if the plaintiff can enforce his lien it will be at the expense of the purchaser, who will be the looser to that extent. The lien in such cases has never been enforced to the prejudice of the purchaser without notice, but as it is wholly immaterial to him to whom he pays the balance of the purchase money, it has been given to the lien holder as having a better right to it in equity than the vendor of the purchaser, or an assignee from him, who takes it subject to all the equities that existed against it in his bands. Here, however, the assignee did not take it subject to such equities, and this circumstance distinguishes this case from those upon which the counsel for the appellant relies.

Wherefore, the judgment is affirmed.