Gessner v. Palmateer

Paterson, J. — This is an appeal from an order deny, ing a motion to dissolve an attachment. The motion was made on the ground that the note upon which the action was brought was given to Webster, plaintiff’s assignor, in part payment for certain land purchased from him by defendant; that Webster had a vendor’s lien as security for the pajrment of the note; that the lien passed to plaintiff by the assignment of the note, and being thus secured, an attachment was improper.

The affidavit filed in support of the motion states that the defendant purchased certain land from Webster, under a contract which provided for payment of the purchase price by installments, and that at the time and place of making said contract for the sale and purchase of said lot of land, and as part of the said contract, the defendant executed and delivered to Webster the promissory note sued on; and that Webster still holds, against the defendant, the contract, giving him the right to purchase.

There is, perhaps, no subject of equity jurisprudence discussed in the books upon wiiich there is a greater diversity of opinion than exists in relation to the origin, nature, and effect of a vendor’s lien, against whom and in whose favor it avails, and how it may be discharged or waived. (Hammond v. Peyton, 34 Minn. 531.) The various definitions given, and principles applied to it by the courts, are hopelessly irreconcilable; and if we take the expressions found in decisions and text-books, without observing the distinction between the lien implied by law in favor of a vendor who has parted with the legal title and taken no security for the purchase-money, and the security which the vendor has while he holds the legal title under an unexecuted contract for the conveyance of lands upon payment of the purchase-[92]money, there will appear to be great confusion and inconsistency. The former, the implied lien, is properly known, as a vendor’s lien. It is the creature of courts of equity, founded upon the equitable presumption that where the vendor has parted with his title and taken no security for the payment of the purchase-money, the parties intended that the property itself should remain as a pledge for the payment of the purchase price of the land. The lien thus created by implication is not a specific, absolute charge upon the property; it is personal to the vendor, and does not pass by a transfer of his claim for the purchase-money. The fee is in the purchaser, and he may defeat the lien by a conveyance to a bona fide purchaser for value. (Sparks v. Hess, 15 Cal. 186; Baum v. Grigsby, 21 Cal. 172; 81 Am. Dec. 153; Lehndorf v. Cope, 122 Ill. 333.) The latter is improperly designated as. a vendor’s lien.