Erskine v. Forbes

Opinion.

Cooper, J.,

delivered the opinion of the court:

By his original and supplemental cross-bills the appellee, Forbes, attempted to deal with the land in two antagonistic characters. By the first he claims that his mortgage, though executed by Mr. Erskine alone, is valid because Mr. Erskine was the owner of the land mortgaged. By his supplemental cross-bill, he insists that Mrs. Erskine cannot enforce the payment of the notes given in purchase of the land by Mr. Erskine, and which were confessedly valid in the hands of Allen & Co., on the ground that she was the real purchaser of the land, and for this reason the purchase of the notes by her from Allen & Co. operated as a payment thereof against her intention. The answer to these propositions is that if, as between herself and Forbes and Fitzgerald, Mrs. Erskine was the real owner of the land, then they acquired no right by the mortgage executed by Mr. Erskine, and Forbes is entitled to no relief under his cross-bill; if, on the other hand, Mrs. Erskine was not the owner of the land but only had an equitable right as against her husband, and was not bound for the payment of the notes given for it, she has the right to enforce the vendor’s lien and it is superior to the mortgage of Forbes. In other words, Forbes cannot say that she is not the owner and, therefore, his mortgage is good, and having sustained this position, say that she was not always owner and thus convert what was intended by her as a purchase of the notes secured by the vendor’s lien into a payment for them. The demurrer should, therefore, have been sustained and the supplemental cross-bill dismissed.

The decree is reversed, demurrer sustained, and supplemental cross-bill dismissed.

1 A lien for the purchase money expressly reserved in a conveyance of land is in effect an equitable mortgage, and an assignment of the debt carries with it the lien. Kausler v. Ford, 47 Miss. 289; Moore v. Lackey, 53 Miss. 85.

Where an express lien on land is reserved in a note for the purchase money, though the deed recites payment thereof, the lien will pass by assignment of the note. Hobson v. Edwards, 57 Miss. 128.

Where the vendor of land, by title bond, assigns the debt the lien passes to the assignee, and the vendor cannot afterward do any act which will affect it. Mhoon p. Wilkerson, 47 Miss. 633; Moore v. Lackey, 53 Miss. 85.

Under section 1124, Code 1880, providing that the assignee of a claim for the purchase money of land may enforce the vendor’s lien as the vendor could, where by the contract it is agreed that payment of the purchase price shall be made to another than the vendor, such other becomes the payee of the purchase price, and may enforce the lien. Bank v. Knapp, 61 Miss. 485.

A cross-bill may be predicated upon separate and independent matter if it grow out of the same subject-matter involved in the original bill. Dewees v. Dewees, 55 Miss. 315.

For other annotations in this case, see brief for appellant.