Cocke v. Bailey , 42 Miss. 81 ( 1868 )

Jeffords, J.,

delivered the opinion of the court.

This is a bill in chancery filed by the complainant, James S. Bailey, as executor of the last will and testament of Philip H. Thornton, deceased, against Lucy A. Coche, Benjamin Cocke, and Thomas A. Cocke, heirs and legal representatives of B. ~W. and H. T. Cocke, deceased, for the purpose of enforcing the vendor’s lien on certain lands described in the petition, under the following state of facts: —

Thornton, the testator, in his lifetime, was the owner, in fee-simple, of two tracts of land lying in Tallahatchie county; one of said tracts containing 1,300 acres more or less, and the other supposed to contain 880 acres more or less.

B. ~W., H. T. and T. A. Cocke wore the owners in fee-simple of a valuable tract of land on Honey Island, supposed to contain 911 acres more or less. These several parties, on the 5th day of February, 1801, entered into a written agreement with each other, whereby it was agreed that Thornton should convey the 1,300 acre tract to B. W. & H. T. Cocke, and the 880 acre tract to T. A. Cocke, for which the Messrs..Cocke agreed to convey to said Thornton the Honey Island tract, and also agreeing to execute two promissory notes to Thornton for $8,000 and $4,000 respectively, to “ secure the balance due on, the lands purchased.” The notes to bear 8 per cent interest, and to become due on the 1st day of January, 1863. The note for $8,000 to be signed by B. W. & H. T. Cocke, and the one for $4,000 to be signed by T. A. Cocke. It was agreed that “ the word c deed ’ is understood by all parties to mean a regular legal warrantee deed.” The conveyances and notes were executed and delivered in accordance with the agreement.. No security was taken for the balance of the purchase-money, nor have the lands conveyed by Thornton ever been released or discharged from the equitable lien given by law.

Thornton departed this life about February, 1863. B. W. Cocke died during the year 1862, leaving one child named Benjamin, an infant of tender years, his only heir-at-law. IT. T. Cocke died shortly thereafter, leaving Mrs. Lucy A. Cocke, his widow, and no child.

Mrs. Lucy A. Cocke is the qualified administratrix of the two-estates of B. ~W. & H. T. Cocke, deceased; both estates are insolvent. These are the material facts set up in the. bill; the parties in interest are all before the court, and the facts are admitted. The respondent, Mrs. Lucy Cocke, however, after having answered admitting the facts alleged in the bill,, through the medium of what she calls a cross-bill, seeks to resist the relief sought by the complainant, unless it be granted subject to her dower right in the estate of her husband. She insists that as her husband was seized in fee-simple, in one third of the Honey Island lands free and unincumbered, she was entitled to dower therein, and that it was agreed and understood between all the parties, that by relinquishing her dower estate in that tract, it would immediately attach to, and rest in, her husband’s interest in the Tallahatchie lands. There is no evidence of any such agreement in the record.- But a single deposition comes up with the record, and the facts stated in it are immaterial and unimportant, and if they were ever so much so, they are inadmissible under the rules of evidence.

Upon examination, it appears that what the respondent, Lucy A. Cocke, calls á cross-bill, is a continuation of her answer, and contains few, if any, of the requisites of a cross-bill. The phraseology is that of an answer; and Mrs. Cocke continues throughout to style herself “ respondent.”

'There is a prayer for an answer, but none seems to have been filed. There is no prayer for process, and none appears on the record. No decree pro confesso was taken, and no notice or action whatever appears to have been had upon this pretended cross-bill as such at the final hearing.

There seems to have been no demand for a cross-bill in this case, as the matters contained in it might all have been properly set up by way of answer.

The matters set up fall so far short of a defence to the relief sought by the bill, that practically it is of no consequence in what-shape they were presented: they could not affect the decision of the case. The court below must have regarded it as a nullity, or as an answer. We feel justified in this assumption from an inspection of the decree itself, which recites that “ this cause having been set down for final hearing upon MM, answers, Exhibits, and proof” &c., without noticing or referring to the cross-bill as such. By treating it as an answer throughout, all the weight and force which could possibly be given to it in any form will be accomplished; and at the same time any apparent irregularity which may be supposed to have crept into the record is disposed of satisfactorily.

The question presented by the answer of Mrs. Cocke is, whether her right is subordinate -or .paramount to the vendor’s equitable lien for the unpaid purchase-money. We do not find that this precise question has ever been directly passed upon by this court.

In Bisland v. Hewett et al., 11 S. & M. p. 169, the direct question, however, not being squarely before the court, Judge Thatcher, in delivering the opinion of the court by way of dictum, says: “ But it may save litigation to intimate that if, as appears from the record in this case, the title of the husband became divested by the enforcement of the lien reserved by law to his vendor, the claim of the widow must ultimately fail.” This, of course, is not binding- upon us, unless we find it to be founded upon authority or based in reason.

No principle of law is better established in this State, than the general doctrine of the right of the vendor to his lien for the unpaid purchase-money.

It may be stated, as the result of our deductions from the authorities, that in the State where this doctrine prevails, and where the vendor of lands takes no security for the unpaid purchase-money, although he may have made an absolute conveyance by deed, with a formal acknowledgment in the body or on the back of it, he, nevertheless, retains an equitable lien for the purchase-money, unless there be an express or implied waiver of it. .

This lien will be enforced against the vendee, volunteers, privies, and all others standing in his position, or claiming under him with notice. 1 S. & M., Stewart et al. v. Ives, 197; 6 S. & M., Upshaw et ux. v. Hargrave, 286; 9 Cowen, Stafford v. Van Renselear; 1 Johnson’s Chancery, Garson v. Green, 308; 1 Harris & Johnson, White v. Casanave, 106; 2 Robinson’s Virginia, Wade’s Heirs v. Greenwood, 475.

It is jueferred to the widow’s right of dower, as that is an estate cast upon her by act of law, and not as a purchaser. 2 Robinson’s Virginia, Wilson v. Davison, 385; 11 S. &. M., Bisland v. Hewett et al. 169 (already referred to), Scribner on Dower, p. 607, § 14. The case of Wilson v. Davison is directly in point.

Judge Baldwin, in delivering the opinion of the court, says: “ The wife’s right of dower is an emanation from the ownership of her husband, and subject to all of its qualifications. Her right is dependent upon his as existing at the inception of coverture, or as acquired by him during its continuance.

“ If during coverture he purchase mortgaged land, her title, like his, is subject to the incumbrance, and the foreclosure of it destroys both. The result is the same where an incumbrance is created by tbe very act of purchasing; for if tbe purchase-money be unpaid and not secured, an equitable mortgage is embodied in the transaction itself; and if that be foreclosed by a sale of the property under the decree of a court of equity, the wife’s right to dower is completely extinguished.”

It follows, then, that the vendor’s lien attaches to the land, eo instante, when the sale is made, as against the vendee and all who are in privity of estate with him or have notice. In this case the wife had but an inchoate contingent right, to become absolute, provided she should survive her husband. Sbe did survive him, and her right has become absolute, but is subordinate to tbe vendor’s lien.

If, as stated in her answer, she has already been endowed by tbe decree of tbe- Probate Court of Tallahatchie county, the law furnishes the remedy for both parties.

Decree of the chancellor is affirmed, and the cause remanded, with instructions to carry the decree into effect in accordance with the principles of this decision.