Willard v. Reas , 26 Wis. 540 ( 1870 )

Cole, J.

The chief object of this suit doubtless is, to enforce a vendor’s lien against the land embraced in the contract executed by one Drew to Mrs. Willard. This contract was sold and assigned to Mrs. Reas, in consideration of and in payment for eighty acres of land in Missouri, which Mrs. Reas conveyed to the plaintiff A. C. Willard by a deed with covenants of warranty. It is alleged in the complaint, that at the time the contract was assigned to Mrs. Reas, and this deed executed, she represented that she was the absolute owner in fee of the land conveyed by her, while in fact she was not the owner of the same or of any part thereof. But there is no allegation that Mrs. Reas made these representations in respect to the title fraudulently, knowing them to be untrue, and the action does not proceed on the ground of fraud. But because Mrs. Reas did not or could not by her deed give a good title to the Missouri lands, and consequently because the consideration for the assignment of the contract has failed to the extent of fifteen hundred dollars, a vendor’s lien to that amount is sought to be enforced against the land embraced in that contract.

We are at a loss to perceive upon what principle the plaintiffs in the action, or either of them, are entitled to this relief. It is a very familiar doctrine, that where land is sold and conveyed, a part or all of the purchase money remaining unpaid, equity will recognize and enforce a lien on the land in favor of the vendor for the unpaid purchase money. This lien results from the fact that the purchase money is unpaid, and equity will hold the land as security for the debt due the vendor. To the extent of the lien the vendee is deemed clothed with the legal title as trustee for the vendor. And so the authorities quite uniformly say that the vendor has, in all cases, upon “the sale of real estate, an equitable lien upon the estate sold for the unpaid purchase money as between him and the vendee, unless there is either an express or implied agreement to waive such lien. 2 Story Eq. Jur. §§ 1217 et seq.; Bradley v. Bosley, 1 Barb. Ch. 125; Clark v. Hall, 7 Paige, 382; Sears v. Smith, 2 Mich. 244; Brush v. Kinsley, 14 Ohio, 20; Sparks v. Hess, 15 Cal. 186. But where no credit is given, the vendor receiving what is deemed and treated as a full pay- . ment of the consideration, this, it appears to us, necessarily amounts to a waiver of the lien. Suppose, in this case, Mrs. Willard had assigned the contract in consideration of personal property delivered in payment, and the title to this property had for some reason afterwards failed in her hands; would a court of equity give her a lien ? It appears to us, not. It is true, in that case Mrs. Reas would be liable on the implied warranty of title; but would a lien exist ? In the case before us, land was taken in. satisfaction of the price of the land contract. Did not this extinguish any implied lien for the purchase money 1 Chancellor Kent, on a review of the authorities, lays down the rule that taking a note, bill or bond with distinct security, or taking distinct security exclusively by itself, either in the shape of real or personal property, from the vendee, or taking the responsibility of a third person, is evidence that the seller did not repose upon the lien, but upon independent security, and it discharges the lien. 4 Kent, *153. According to the complaint, the agreement was that Mrs. Willard should assign the land contract to Mrs. Reas, in consideration that the latter should convey by full warranty deed the eighty acres in Missouri to the plaintiff A. C. Willard. It appears to us that this was a clear waiver of the lien by Mrs. Willard, and that if there is any failure of title, her husband is remitted to his action upon the covenants in the deed.

So, upon the facts stated, no vendor’s lien exists, and the complaint was not bad on the ground that several causes of action were improperly united therein. For the union of allegations which do not show any ground for relief with others which are sufficient, will not render a complaint multifarious. Bassett v. Warner, 23 Wis. 673.

The other ground of demurrer was, that the complaint did not state facts sufficient to constitute a cause of action. This was a joint demurrer by both defendants. So far as Mrs. Reas was concerned, there was most certainly a good cause of action stated against her in favor of A. C. Willard, upon the covenants of the deed. And while there is no cause of action stated against the other defendant, yet as the demurrer was joint, and not good to the whole extent, it must fail. The defendant Bingham should alone have demurred that the complaint stated no cause of action as to him. But by uniting with the other defendant, unless the demurrer is good as to both, it is good as to none. Peabody v. Washington Co. Mut. Ins. Co., 20 Barb. 339; People v. Mayor of N. Y., 28 id. 240. And the above authoritiess how that Mrs. Reas could not have demurred to the complaint on account of excess of parties plaintiff, if one of them might have judgment separately against her.

It follows from these views that the demurrer was properly overruled.

By the Court. — Order affirmed.