Ross v. Clark

Mr. Justice Brown

delivered the opinion of the court.

The bill in this cause was evidently filed principally as an attempt to enforce under the equitable doctrine of a vendor’s lien a claim arising from alleged fraudulent misrepresentations inducing the exchange of real estate. This is not only evidently the case, but it is practically admitted by appellants’ brief and argument. - Counsel apparently rely strongly on the proposition that for two or at most three items of their claim, amounting, in the aggregate, to less than $1,000, the complainants have a vendor’s lien, and that equity, taking jurisdiction of the cause for the purpose of enforcing that lien, will do justice between the parties as to all germane matters of equitable jurisdiction, and add to the sums decreed to the complainants, for which the land conveyed by them will stand burdened, the much larger amount by which they claim they have been damaged by certain fraudulent misrepresentations of the defendants, about the value and condition of the real estate taken in exchange.

It is manifest that by themselves such misrepresentations would furnish no ground for the equitable relief of the enforcement of a vendor’s lien. They might, if proven, as it seems to have been the intention to allege them, furnish at law a basis for damages in an action for deceit. Such an action would involve the right to a jury trial. They might also, in equity, furnish ground for an action to rescind the contract of exchange in toto, but this is a very different equitable relief from that claimed here, which looks towards affirming the contract, keeping the consideration already received and securing the damages upon the property exchanged. This, as the Supreme Court of Michigan in Graham v. Moffatt. 119 Mich. 303, remarked in a similar case, would “revolutionize the doctrine of rescission which requires a party to rescind a fraudulent contract in totoP

It seems to be conceded that this is the law concerning the alleged damages by misrepresentations; but it is urged that if the.two or three items before alluded to establish a vendor’s lien, such damages can properly be ascertained and tacked on the decree, and that even if they cannot, the court below was nevertheless in error in sustaining a general demurrer to the bill in which certain items described are thus a sufficient basis for a vendor’s lien.

In considering the case alleged to be made by the description of these items in the bill, it is to be noted generally that it is the declared rule in Illinois that a vendor’s lien is not favored by the law, should not be extended beyond the requirements of the settled principles of equity, and will not be enforced when the court can infer from the circumstances that the vendor did not rely on it at the time of.sale. Richards v. Leaming, 27 Ill. 431; Cowl v. Varnum, 37 Ill. 181; Lehndorf et al. v. Cope, 122 Ill. 317; Franklin v. Hillsdale Land & Cattle Co., 70 Ill. App. 297.

The lien is given and enforced only when there is a debt for unpaid purchase money in a fixed amount due directly to the vendor. Koch et al. v. Both, 150 Ill. 212, 224; and authorities there cited.

It is true that specific articles of personal property may at an agreed pecuniary value be substituted for cash money in the consideration without destroying the right of the vendor to his lien. But when there is a completed sale or exchange, and a part of the consideration is a promise, agreement or covenant on the part of the vendee or of one of the parties to the exchange to do something in the future, other than the payment of a fixed, definite, ascertained sum as a part of the purchase price, the lien does not exist. The money due for a breach of the covenants is not then purchase money, but damages, and the remedy is an action on the agreement for them. Koch v. Roth, 150 Ill. 212; Whitely v. Central Trust Co., 76 Fed. Rep. 74; Hudelson v. Wilson, 40 Ill. App. 29; Parrish v. Hastings, 102 Ala. 414; McCandlish v. Keen, 13 Gratt, 615; Patterson v. Edwards, 29 Miss. 67; Brawley v. Caton, 8 Leigh, 522; McKillip v. McKillip, 8 Barb. 552; Parrott v. Sweetland, 3 Myl. & Keen, 655; Winter v. Lord Anson, 1 Sim. & Stu. 435; Clark v. Boyle, 3 Sim. Ch. 500.

We consider the case of Manning v. Frazier, 96 Ill. 279, as marking the limit to which the enforcement of a vendor’s lien in this state will be carried. It is easily distinguishable from the case at bar. So is Groves v. Miles, 58 Ill. 338, 71 Ill. 376 and 85 Ill. 85, where the title was actually retained as security for the performance of an agreement and the sale allowed was in effect a foreclosure of a mortgage. A mortgage may of course be made to secure the performance of any agreement or covenant.

We consider those allegations of the bill in this case, which the complainants argue are statements of things that constitute “ a part and parcel of the purchase money ” due them, to be in fact allegations of agreements or covenants made by the defendants (which agreements or covenants may be said to have been taken by the complainants instead of a portion of the purchase money)," and of a breach of those agreements or covenants for which damages (which, however, under the somewhat vague allegations of the bill can hardly be considered ascertained, determined or liquidated) are due to the complainants. The statements that these alleged damages are “ part and parcel of the purchase money,” are conclusions of the pleader manifestly. We do not agree with them, nor did the chancellor below, who consequently properly sustained a demurrer to the bill. His decree is affirmed.

Affirmed.