Griffin v. Addison , 3 S.C. 105 ( 1871 )

The opinion of the Court was delivered by

Willard, A. J.

The object of the appellants’ bill was the foreclosure of a statute lien for the purchase money, upon a sale of land for partition, The respondent, G. A. Addison, became the purchaser on the sale for partition. The respondent, H. W. Addison, has acquired title to the land in question, through a Sheriff’s sale under execution against G. A. Addison.

The question in dispute is, whether the purchase money has been paid. A bond was given by G. A. Addison for the purchase money under the sale for partition. Subsequently, payment of this bond was acknowledged in form. It appears that the bond was not wholly discharged by cash payment, but that a sealed note was given by G. A. Addison for a balance due on the bond. The Circuit decree determines, as matter of fact, that the taking of the sealed note was regarded and intended by the parties as payment of the bond. The Chancellor accordingly dismissed the bill.

Unless this determination of the fact of payment is erroneous, the decree must stand.

The statute lien for the purchase money upon a sale for partition, (5 Stat., 164,) is in the nature of a purchase money mortgage, and has been assimilated, as far as possible, to such mortgage.—Allen vs. Richardson, 9 Rich. Eq., 53.

The effect of taking a new obligation for one secured by a mortgage, as affecting the lien of the mortgage, was settled in Burton vs. Pressly, (Chev. Eq., 1,) where it was held that if a new obligation is taken intended as payment of one secured by mortgage, the security is at an end ; but that if the new obligation was intended as a substitute for the secured obligation, the mortgage remains valid and effectual.

Applying these principles to the present case, it follows, that if the sealed note was intended as payment of the bond, it extinguished, with the bond, the original indebtedness for the purchase money covered by the bond, and the statute lien is at an end, for the want of such an obligation to rest upon as the statute contemplated.

We find no sufficient ground for interference with the conclusion of the Chancellor as to the question of fact involved.

The decree must be affirmed, and the appeal dismissed.

Moses, C. J., and Wright, A. J., concurred.