Kent v. Gerhard

In this case the complainant claims a lien on the property sold by the deceased for the unpaid purchase-money, and which lien it is alleged has not been waived nor released.

The vendor's lien for unpaid purchase-money is established in our mother country and in many of our States as a part of their equity system, and may well be considered as introduced with that system here, unless there is something in our laws and usages inconsistent with it.

The vendor's lien is enforced against the vendee himself and his heirs, against his widow, against a voluntary conveyance, and against a purchaser for value with notice, but not against abona fide purchaser for value without notice.

As to conveyances to or attachments by creditors for antecedent debts, the decisions in this country are conflicting. Undoubtedly a person advancing money on mortgage, for an entirely new consideration without notice, ought to be and would be protected as a bona fide purchaser. If the vendor had taken a mortgage and neglected to record it, a subsequent purchaser without notice would be preferred to the vendor. And we think that the weight of reason and authority is in favor of this conclusion.

It has always been the policy of our laws to encourage registration and publicity of conveyances, in order to guard against fraud. Secret conveyances and attachments are here discouraged.

With the limitations which we have stated guarding the doctrine, there would be nothing in it inconsistent with our ancient policy, or which would lead to any conflict with it.

The remarks of Marshall, C.J., in Bayley v. Greenleaf, 7 Wheat. 46, 57, are very sensible: "The lien of the vendor, if in the nature of a trust, is a secret trust; and although to be preferred to any other subsequent equal equity unconnected with a legal advantage or equitable advantage which gives a superior claim to the legal estate, will be postponed to a subsequent equity connected with such advantage."

In the present case the deed was made to a married woman, who made a mortgage back signed by herself alone without her husband. This pretended mortgage is nothing more than waste paper. The vendor has not had the consideration agreed on and for which the land was sold. No other rights have intervened, which, under the rule given by Marshall, C.J., should have preference, and we think the complainant is entitled to relief.

It is contended by the counsel for the respondents that such a claim cannot be enforced against a married women; but he refers to no authority in point, and see Chilton v. Braiden's Adm'r, 2 Black, 458.

The lien does not stand on the ground of contract, but on the ground of an equity of the vendor, to be enforced against the vendee and all persons claiming under him, except in the cases we have mentioned.

And the formal acknowledgment of the receipt of the consideration in a deed under seal is of no avail if the money was not actually paid. Equity will look at the real facts in the transaction, although a court of law might in some cases be precluded from doing so. Sugden Vend. Pur. cap. 18, sect. 2, § 17; 2 Story Eq. Jur. § 1225.

Demurrer overruled.