Pratt v. Vanwyck's Ex'rs , 6 G. & J. 495 ( 1834 )

Dorsey, J.,

delivered the opinion of the court.

The right of the vendor to pursue for the purchase money unpaid, real estate remaining in the hands of the vendee, or of volunteers claiming under him, or of his alienees with notice, exists only in a court of equity. It is á relief afforded only there on the ordinary ground that the claimant is remediless in a court of law. If the vendor can, by any proceeding at law, recover the amount due him, Chancery never interferes to enable him to assert his equitable lien. His remedy at law must be first exhausted, or it must be shown that none exists there. As sustaining this doctrine, if any authority be necessary, see Garson vs. Green and others, 1 Johns. Ch. R. 308. When, therefore, a vendor goes into equity seeking to enforce such a lien, he must show that he has no redress at law. That has not been done by the present appellees : ’tis true they have alleged the seizure and sale, under an execution, of real and personal property of Ann Pratt to an amount exceeding $1,000, but the issuing of such execution is no where proved, nor is it admitted in the appellant’s answer; and if it were, it is neither alleged or proved that Ann Pratt had not other property, out of which the debt could have been made by execution; on the contrary, it is in proof that she had. The appellees then have wholly failed to show -themselves in an attitude to ask that relief which has been extended to them by the county court. Nor is their condition improved by the proof that Edwin W. Pratt promised to pay the balance of the purchase money due from Ann Pratt to Vanwyck, such evidence, being wholly inadmissible, because it changes and contradicts the written contract between them.

But suppose it was admissible, and that such promise was obligatory to the extent imported by its terms, it could avail the appellees nothing in their present proceeding. It .created no new lien upon the land in question — it furnished a substantive cause of action at law, where redress for its violation ought to have been sought.

But there is another insuperable objection to the affirmance of this decree, upon which alone it must be reversed, if all other grounds were wanting. The interest or property sold by Vanwyck to Ann Pratt was, in contemplation of a court of Chancery, personal not real estate; and there is therefore no implied lien upon it for the unpaid balance of the purchase money. The mortgage debt due by Hall, if any thing, is, in equity, the thing sold by Vanwyck. The mortgaged premises pass as appurtenant to the debt; they are incapable of a separate and independent alienation.

.DECREE OF THE COUNTY COURT REVERSED WITH COSTS.