Hill v. Grigsby

By the Court, Rhodes, J.: Appeal from an order of the County Judge discharging an attachment. It appears from the papers on which the motion was based, that the plaintiff sold to the defendants, Gfrigsby and Smittle, the undivided half of a quartz mill and certain real estate situated in the State of Nevada, for the sum of eighteen thousand dollars; that the plaintiff executed to the defendants a bond conditioned for the conveyance of the property, upon their making payment of the purchase money; that the promissory notes in suit were given by the defendants for a part of the purchase money; that the bond was executed and delivered by the plaintiff to Gfrigsby, in this State; that at the same time Grigsby signed the notes and delivered them to the plaintiff; that Smittle executed and delivered the notes to plaintiff in the State of Nevada. The notes are dated at Washoe City, in the State of Nevada, but no place of payment is specified either in the notes or in the bond. The premises have not [58]been conveyed to the defendants. The attachment was levied on the property of Grigsby. Smittle was not served with process, nor was any property of his attached.

Grigsby moved to discharge the attachment on two grounds: first, because the notes were secured by a lien upon real property ; second, because the notes were made and payable in the State of Nevada. The motion to discharge the attachment was sustained on both grounds.

It is provided by section one hundred and twenty of the Practice Act that an attachment may issue: “First, in' an action upon a contract express or implied for the direct payment of money, which contract is made or is payable in this State, and is not secured by a mortgage, lien or pledge, upon real or personal property; or, if so secured, that such security has been rendered nugatory by the act of the defendant.” The defendant claims that the plaintiff holds a vendor’s lien upon the premises sold, which serves as a security for the payment of the purchase money.

It is a familiar doctrine of Courts of equity that the vendor of real estate, after an absolute conveyance, retains a lien for the unpaid purchase money; and Judge Story says: “ This lien of the vendor of real estate for the purchase money is wholly independent of any possession on his part, and it attaches to the estate as a trust equally, whether it be actually conveyed or only be contracted to be conveyed.” (2 Sto. Eq. Juris. Sec. 1,218.) The question is very fully considered by Mr. Chief Justice Field in Hess v. Sparks, 15 Cal. 192, which was a suit to enforce the vendor’s lien, the contract of sale remaining unexecuted. It was there said, after defining the character of the lien held by the vendor after a conveyance, and holding that the vendor, when the contract of sale remained unexecuted on his part, also possessed a lien : “ In the present case the vendors have retained the legal title, and evidently as security for the purchase money. Their position is in most respects similar to what it would have been had they executed a conveyance to the vendee and taken from him a mortgage upon the property. A mortgage is in form a conveyance of