Oliver v. Gill

Opinion

by the Court.

It is assigned as error that the cross-bill was dismissed and the prior lien therein set up was denied, and this presents the only question arising for our determination. It may be admitted that the obligations held by Oliver and Gill were really the debts of the coal company, but this does not seem to affect in any especial way the rights of the parties.

Oliver held a first lien to secure his debt, and in order that the company by its managing stockholder might obtain a loan from Gill, out of which the unsecured debt of $500 to. Brinkerhoff and Oliver was to be paid, the latter released his security by deeding the land back to Brinkerhoff, and in place of it took the security expressed in the agreement signed by Gill and the other parties. No doubt it was expected that a considerable demand for lots would arise, and from the proceeds of sales of one-half of such lots, the balance due Oliver would be realized.

It is also probable that Gill supposed there would be enough derived from the enhanced value of the property, when sold in lots, to make him secure, after devoting onelialf of the proceeds, as far as necessary, to the satisfaction of Oliver’s claim; but no lots were sold, and the contingency provided for in the agreement has not happened. It is for the courts to enforce contracts as parties make them unless there is some unconscionable or illegal feature therein. Nothing of that sort appears.

The contract did not provide, in terms or by implication, that in case no lots were sold Oliver should have a first lien, or any lien, upon one-half of the property. Had his cross-bill prayed for a lien subordinate to that of Gill, perhaps he might have been relieved to that extent, but his assertion of a prior lien was unfounded, and properly rejected.

We deem it unnecessary to refer to the oral testimony, or to the arguments of counsel in detail. No doubt Oliver felt sufficient reason for changing his position, and no doubt Gill understood the extent of Oliver’s lien under his mortgage; but he did not choose to take a lien subject to the mortgage, and as between Gill and Oliver, that mortgage was extinguished, and it was so intended. It is not to be supposed that either party expected Oliver to realize anything until Gill was fully paid, except from lot sales. This was the fund expressly provided, from which, and from which only, could Oliver receive anything on his claim. This fund failed, and with it Oliver’s security as against Gill. We are of the opinion the decree should be affirmed.