VENDOR'S LIEN. First in importance among equitable liens is the vendor's lien for unpaid purchase money. The principle upon which it rests is that where a convey ance is made prematurely before payment of the price, the purchase money is a charge on the estate in the hands of the vendee ; 4 Kent 151; Story, Eq. Jur. § 1217 ; Bisph. Eq. 353 ; 1 Bro. C. C. 420, 424, n. There has been some discussion as to its exact nature and whether it is to be classed in any sense as an implied trust, but the more reasonable view seems to be that it is not, at least in such sense as to carry with it the idea of any title, but that it is strictly a mere charge, the true nature of which perhaps cannot be better expressed than by the use of the term equitable lien. "The principle upon which such a lien rests has been held to be that one who gets the estate of another ought not, in conscience, to be allowed to keep it without paying the consideration." Fisher v. Shrop shire, 147 U. S., 133, 13 Sup. Ct. 201, .37 L. Ed. 109. As to the nature and origin of the lien see also 1 Bisph. Eq. 354; Story, Eq. Jur. § 1219 ; 2 Sugd. Vend.- & P. 376 ; 1 Pingr. Mort. 319 ; 1 Wh. & Tud. L. Cas. 366; 22 Am. St. Rep. 279, note.
"No other single topic belonging to the equity jurisprudence has occasioned such a diversity and even discord of opinion among the American courts as this of the grantor's lien. Upon nearly every question that has arisen as to its operation, its waiver or dis charge, _the parties against whom it avails, and the parties in whose favor it exists, the decisions in the different states and even sometimes in the same state, are directly conflicting." 3 Pom. Eq. Jur. § 1251.
Unless waived the lien remains till the whole purchase money is paid ; 15 Ves. 329.
In order to create a vendor's lien there must be a fixed amount of unpaid purchase money due to the vendor. A vendee's obli gation to a vendor on a collateral covenant made at the time of a purchase will not give rise to a vendor's lien; unless the vendor ex pressly reserves such a lien in his deed ; Barlow v. Delany, 36 Fed. 577.
A grantor's lien on the premises conveyed for the purchase price, is a personal privi lege not assignable with the debt ; nor can the creditor of the grantor be subrogated to the same ; First Nat. Bank of Salem v. Flour Mills Co., 39 Fed. 89 ; Gruhn v. Richardson, 128 Ill. 178, 21 N. E. 18 ; but see Hamblen v. Folts, 70 Tex. 132, 7 S. W. 834 ; Cate v. Cate, 87 Tenn. 41, 9 S. W. 231. The lien ex ists against all the world except bona fide purchasers without notice ; Amory v. Reilly, 9 Ind. 490; Kent v. Gerhard, 12 R. I. 92, 34 Am. Rep. 612 ; it is good against the land in the hands of heirs or subsequent with notice; 3 Russ. 488 ; 1 Sch. & L. 135 ; against assignees in bankruptcy; 2 B. R. 183 ; 1 Bro. C. C. 420; and whether the estate is actually conveyed or only contracted to be conveyed ; 2 Dick. Ch. 730; 12 Ad. & E. 632. But as a general rule the lien does not pre vail against the creditors of the purchaser; Bayley v. Greenleaf, 7 Wheat. (U. S.) 46, 5 L. Ed. 393 ; Taylor v. Baldwin, 10 Barb. (N. Y.) 626 ; 2 Sudg. Vend. & P. [681]; but whether it will do so it is said "depends up on the relative equities and rights of the disputants' in comparison with one another." 1 Wh. & Tud. L.. Cas. 374; and see 1 Story, Eq. Jur. § 1228. See as to assignability, 25 Am. L. Reg. N. S. 393, where the cases are collected by states. The question is involved in too much confusion for any successful effort to state a general rule.
The doctrine of vendor's lien, firmly set tled in England, has been received with vary ing degrees of favor in the United States, some of them refusing to accept it. This would be in accord with the disfavor shown in this country to secret liens which has naturally resulted from the universal habit of requiring title papers and charges on real estate to be matters of record. In a general way the American cases may be grouped as follows : (1) Those which follow the Eng lish doctrine of Mackreth v. Symmons, 15 Ves. 329, sustaining the lien as already de fined. In this class are included a majority of the states, though it is to be noted that in the classification of states frequently made with reference to this subject, there is a failure to note an important distinction be tween those states where the lien is reeog niped before a conveyance, and those in which the English doctrine is carried to its fullest extent and a grantor's lien sustained.
A careful examination of the cases would probably leave the states which go to this extent in a considerable minority, as the lien is frequently recognized in favor of a vendor who has only executed a contract of sale and put the vendee in possession; Birdsall v. Cropsey, 29 Neb. 672, 44 N. W. 857; Win born v. Gorrell, 38 N. C. 117, 40 Am. Dec. 456 ; while the lien is not recognized after a deed ; Womble v. Battle, 38 N. C. 182. So in a state usually included among those rec ognizing the lien ; Gee v. McMillan, 14 Or. 268, 12 Pac. 417, 58 Am. Rep. 315; it has been recently held that "where real estate is granted by absolute deed, followed by de livery of possession to the grantee, no im plied equitable lien for the unpaid purchase money remains in the grantor ;" Frame v. Sliter, 29 Or. 121, 45 Pac. 290, 34 L. R. A. 690, 54 Am. St. Rep. 781. (2) The implied vendor's lien is abolished by statute in Ver mont, Iowa, Virginia, West Virginia, and Georgia. It is recognized and process pro vided for it in Tennessee, California, the Dakotas, Louisiana, and Arizona. And in Arkansas and Alabama the lien passes to an assignee of the note or bond for purchase money; 1 Stims. Am. Stat. L. § 1950. (3) The doctrine has been expressly disavowed in several states; Philbrook v. Delano, 29 Me. 410; Smith v. Rowland, 13 Kan. 245; Heist v. Baker, 49 Pa. 9; Wragg's Represen tatives v. Comptroller-General, 2 Desaus. (S. C.) 509; Perry v. Grant, 10 R. I. 334; Ahrend v. Odiorne, 118 Mass. 261, 19 Am. Rep. 449; Arlin v. Brown, 44 N. H. 102; Atwood v. Vincent, 17 Conn. 575. In Dela ware the question remains without direct decision but with judicial expressions strong ly adverse; Godwin v. Collins, 3 Del. Ch. 189; Rice v. Rice, 36 Fed. 860. (4) The federal courts recognize and enforce the lien "if in harmony with the jurisprudence of the state in which the case is brought ;" Fish er v. Shropshire, 147 U. S. 133, 13 Sup. Ct. 201, 37 L. Ed. 109. Classifications of cases in the state courts on this subject may be found in Bisph. Eq. § 353, notes; 1 Pingr. Mortg. 318, notes; Tiedem. R. P. 292, notes; 25 Am. L. Reg. N. S. 393.
In a rather unusual case, it was held that where a vendee, as a consideration, assumes debts of the vendor and settles them at a compromise, the vendor has a lien for the amount of the rebate; Koch v. Roth, 150 Ill. 212, 37 N. E. 317.
Waiver. The lien may be waived by agreement; but postponement of the day of payment is not a waiver, not being incon sistent with the nature of the lien; nor taking personal security; Ad. Eq. 128; Gar son v. Green, 1 Johns. Ch. (N. Y.) 308; Campbell v. Baldwin, 2 Humphr. (Tenn.) 248; Tiernan v. Beam, 2 Ohio 383, 15 Am. Dec. 557; Mims v. R. Co., 3 Ga. 333; 1 Ball a, B. 514. An acknowledgment of the pay ment of the purchase-money in the body of the deed, or by a receipt, will not operate as a waiver or discharge of the vendor's lien if the purchase-money has not in fact been paid; Ogden v. Thornton, 30 N. J. Eq. 569; Simpson v. McAllister, 56 Ala. 228; Holman v. Patterson's Heirs, 29 Ark. 357. Taking the note or other personal security of the vendee payable at a future day is generally held merely a means of payment, and not a security destroying the lien; 1 Sch. & L. 135; 2 V. & B. 306; Hanrick v. Walker, 50 Ala. 34; Corlies v. Howland, 26 N. J. Eq. 311; Davis v. Pearson, 44 Miss. 508; Garson v. Green, 1 Johns. Ch. (N. Y.) 308. And if it be the note of a third party, or an inde pendent security on real estate, it would generally be a waiver; Story, Eq. Jur. § 1226, n.; 4 Kent 151; Brown v. Gilman, 4 Wheat. (U. S.) 290, 4 L. Ed. 564; Stevens v. Rainwater, 4 Mo. App. 292; Kirkham v. Boston, 67 Ill. 599; Perry v, Grant, 10 R. I. 334; Faver v. Robinson, 46 Tex. 204; McGonigal v. Plummer, 30 Md. 422; Griffin v. Blanchar, 17 Cal. 70; Sears v. Smith, 2 Mich. 243; Vail v. Vail, 4 N. Y. 312; An derson V. Griffith, 66 Mo. 44. And, gener ally, the question of relinquishment will turn upon the facts of each case; 3 Russ.
Ch. 488; 3 Sugd. Vend. c. 18; Clark v. Hunt, 3 J. J. Marsh. (Ky.) 553.