Cowan v. Sharp 11 Heisk. 450, 58 Tenn. 450

11 Heisk. 450 • 58 Tenn. 450

Cowan & Dickinson v. Sharp.

Vbndob’s Lien. Implied not assignable.' The doctrine that where the vendor fails to retain a lien upon the face of the deed of conveyance, the implied lien for the purchase price is only a personal one in favor of vendor, and does not pass to the assignee of one of the purchase notes, is too well settled in this state now to be shaken ; but the writer of the opinion in this case states that if it were an open question he would seriously doubt its correctness upon principle.

Case cited : Oreen v. Demoss, 10 Hum., 371.

PROM UNION.

Appeal from Chancery Court at Maynardville, February Special Term, 1869. J. P. Swan, J., sitting by interchange with O. P. Temple, Ch.

Cocke & Henderson, for complainant.

Washburn, for Sharp.

*451Jacob Sharp sold and conveyed by deed to S. ,C. Kincaid a tract of land in Union county for the consideration of $8,000, of which $6,000 was. paid in cash, and of the residue, as the deed recites, $1,000 was paid in fat hogs, and $1,000 to be paid January 1, 1862, bearing interest, etc.

ISTo lien is retained, but the conveyance is an absolute warranty deed. A note is exhibited with the bill, which it is alleged was given in part payment for this tract of land, but which does not, either in amount or time of payment, correspond with the statement of the deed. This note was assigned to complainants May-9, 1860, the payee waiving demand and notice, and guaranteeing the payment.

The bill alleges that the land was sold by S. C. Kincaid to H. H. Kincaid, by H. H. to J. M. Kin-caid, and by J. M. to Laban Sharp. It also alleges collusion between the Kincaids and knowledge of the equity on the part of Laban Sharp, and prays that a lien be declared on the land in their favor, etc.

H. H. Kincaid and Laban Sharp answer and rely upon the plea of innocent purchasers without notice, etc., deny all fraud and collusion, and insist that complainants, as assignees of the vendor, have no lien upon the land. So the Chancellor decreed, and com- ' plainants have prosecuted a writ of error to this court.

In this case the vendor had no lien, express, even as against the land in the hands of his vendor. He had executed an absolute conveyance, and only had an implied lien, which might be enforced in a court of *452equity, and is no specific or express lien till enforced by bill in such court. Lincoln v. Purcell, 2 Head, 143; Oreen et al. v. Demoss et al., 10 Hum., 371.. And this implied lien cannot be enforced against a bona fide purchaser from the vendee, even by the original vendor. ' 10 Hum., 371.

But in case of an assignment of the notes for the purchase money, the legal title having passed, and this, implied lien only remaining then the assignee has no lien, either express or implied. Graham v. Me Campbell, Meigs’ B., 52; Green v. Demoss, 10 Hum., 371; Thompson et al. v. Pyland et al., 3 Head, 537; Dish-more v. Jones et al., 1 Col., 554.

As this proposition is conclusive of the case, no question need here be made upon the sufficiency of the plea of innocent purchaser, etc., or of the question, whether the note in controversy was given for the tract of land embraced in the deed from Jacob Sharp.

FreemaN, J.,

delivered the opinion of the court.

Jacob Sharp, on November 5, 1857, sold to Sterling C. Kincaid a tract of land in Union county for $8,000, as shown in the deed made at the time. The deed recites $6,000 paid in cash, $1,000 in hogs, and $1,000 to be paid the first of January, 1862, bearing interest from the first of January, 1858. No lien was retained on the face of the deed for purchase money. The bill charges that a note dated on the fifth of November, 1857, due on the first of January, _ 1861, for the sum of $1,180, which was assigned to the *453complainants on the ninth of May, I860, and which is exhibited with their bill, was given for the last payment on this land. This note on its face says, '“it is the last payment for his (Sharp’s) land,” and is witnessed by one Dyer. This note has the following assignment on it: “For value received I assign the within note to- Cowan & Dickinson, and guarantee payment of same, waiving notice and demand.”

The bill charges that a specific lien, as complainants are informed, was retained upon the land in the deed conveying it to secure the payment of this note, and that the same inures by the transfer to them.

It is further stated, however, that if no lien was retained, the subsequent purchasers of the land, who are made parties, took with full notice of this note, or that balance of the purchase money remained unpaid. It is also charged that the purchasers did not pay a valuable consideration for this land, so as to be entitled to protection as innocent purchasers against the payment of this note by enforcing the lien. It is then charged that a conspiracy had been entered into between Sterling Kincaid and the subsequent purchasers to relieve this land from this lien. It is also stated that Sterling Kincaid sold the land to Harrison Kincaid, he conveyed to Madison Kincaid, the said three subsequent purchasers being brothers. After this, however, Madison Kincaid, on the first of December, 1862, conveyed the land to Laban Sharp, who had -the land in possession at the filing of the bill, said sale being for the sum of $9,500, paid at date of the deed, as recited on face of the .deed; but it is alleged *454that no consideration valuable in law ever passed from the bargainee to the bargainor.

Complainants seek, by the prayer of their bill, an enforcement of a vendor’s lien in their favor for payment of the note. Upon the allegations of the bill,, and fact of no lien retained, and the fact as to assignment of the note, assuming them to be as stated and shown under the rule laid down in Green et al. v. Demoss, 10 Hum., 371, that the implied lien of a vendor who has conveyed land with no reservation of' a lien in the deed,, has a mere personal equity, which is not assignable, and that such lien does not pass to. the assignee of the vendee’s obligation for the consideration of money, and consequently cannot be enforced-in his favor, the complainant must fail in this case. We see nothing in the case to take it out- of this-rule. It may not be improper to say that if the-, question were an open question, the writer of this, opinion would seriously question thé correctness- of this, rule on principle; but it has been now too long established and too often recognized to be disturbed, and we yield our assent to it as the settled law on the-subject. If this is or was a mere personal equity-in the vendor, and did not pass by assignment, then complainants, as assignees of the note, obtained no lien, and can enforce none as against Laban Sharp,, the defendant, who is a subsequent purchaser of the land. 3 Head, 537; 1 Col., 554.

It is perhaps due to say, in reference to the learned and ingenious argument of complainants’ counsel in. support of a lien by estoppel in pais, growing out of *455a letter written by Sterling Kincaid, that even if the proposition of law insisted on could . be sustained, no such case is charged in the bill as would raise the question. for our decision in this case. Without further discussion of other questions, we hold the Chancellor’s decree to be correct, and affirm the same with costs.

Cowan v. Sharp
11 Heisk. 450 • 58 Tenn. 450

Case Details

Name
Cowan v. Sharp
Decision Date
Sep 1, 1872
Citations

11 Heisk. 450

58 Tenn. 450

Jurisdiction
Tennessee
Court
Tennessee Supreme Court

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