Allen v. Phelps

Appeal from the Seventh Judicial District.

This was a proceeding instituted by the plaintiff, Robert. Allen, against Bethuel Phelps and Paul Shirley, the Sheriff of Solano County, to restrain them from selling certain lots in the City of Benicia, under a judgment for the foreclosure of a * mortgage, including them, and to [257] declare the said mortgage void, as to said lots, under the following circumstances:

On the 2d of February, 1850, Robert Semple sold and conveyed the property in question to Stewart & Cooke, for $35,000 cash, and $34,900 to be paid at a future day.

On the 23d of April, 1850, the said balance of purchase money remaining unpaid, Stewart & Cooke mortgaged the said lots, with other property, to Bethuel Phelps, by a mortgage, duly executed and recorded April 26, 1850, as security for a debt due him, who, at the time, was aware of the nonpayment to Semple, of the balance of the purchase money.

An action at lato was afterwards commenced by Semple, against Stewart & Cooke, and judgment obtained against them for $14,257 41, on account of the said unpaid purchase money. On this judgment execution was issued, and on the 20th of August, 1850, all the right, title and interest of Stewart & Cooke, in the lots in question, was sold to the plaintiff, and one McKay, whose interest was subsequently transferred to the plaintiff.

Phelps afterwards obtained judgment on his mortgage, against Stewart & Cooke, for the foreclosure and sale of the mortgaged premises, including the lots in question, advertised them for sale, when, at the instance of the plaintiff, an injunction was sued out to restrain the sale, etc., which was granted by the Court.

On final hearing, the Court found the foregoing facts, and dissolved the injunction, on the grounds: 1st, that Phelps had a valid mortgage on the property; 2d, that the purchase ■of plaintiff was subordinate to, and subject to Phelps’ mortgage, it being merely a purchase of the equity of redemption of the mortgagors; and 3d, that by the sale thereof, Semple’s lien, for unpaid purchase money, was extinguished.

Prom this judgment of the Court the plaintiff appealed.

1st. The vendor of land has a lien in equity, on the land sold for the unpaid purchase money. (3 Ala. 303.)

2d. The lien of the vendor, for unpaid purchase [258] money, will *be enforced against the vendee, and all persons claiming under him, with 'notice, although a deed, conveying the legal title, has been executed, to the vendee. (7 Wheat. 46; 4 lb. 225; 1 Mason, 191; 6 Wend. 77; 1 Band. 53; 3 Bos. & Pul. 183; 2 Yesey, 622; 15 lb. Jr. 337; 5 Ala. 363; 15 Yesey, 340.)

3d. Plaintiff was substituted to the vendor’s lien. (2 Story Eq. § 1227.)