Major v. Bukley

• Decision Date: 31 January 1873
• Parties: SAMUEL C. MAJOR, Administrator of JOHN E. LISLE deceased, Appellant, v. CHARLES BUKLEY and WILLIAM PEACHER, Respondents.
• Court: Missouri Supreme Court

51 Mo. 227

SAMUEL C. MAJOR, Administrator of JOHN E. LISLE deceased, Appellant,

v.CHARLES BUKLEY and WILLIAM PEACHER, Respondents.

Supreme Court of Missouri.

January Term, 1873.

Appeal from Howard County Circuit Court.

Prewitt & Major, for Appellant.

I. The declaration in the deed of Lisle, that part of the purchase money was paid and the balance secured to be paid, was a notice to Peacher of the vendor's lien, and retained the same against him and every other person claiming through that deed. (Johnson vs. Gwathmey, 4 Lit. Ky., 317; Thornton vs. Knox, 6 B. Munr., 74.)

II. In order to discharge the lien, there must be some collateral security over and above the obligation of the purchase. (American note to Macbeth vs. Symmons, 1 W. & T. Lead. Cas. 364; Adams vs. Buchanan, 49 Mo., 64; Delassus vs. Poston, 19 Mo., 425; Sugd. on Vend., 880, note 2.)

III. The vendor's lien does not arise from contract but is given by law. It exists although an absolute deed has been made with full covenants, and although the deed acknowledges full payment of the purchase money, or a receipt of the purchase money be indorsed on the deed, if in fact it has not been paid. (Am. note to Macbeth vs. Symmons. Ubi supra.) And if the purchaser from the vendee have notice of the fact he is bound by the lien.

IV. If the covenant of warranty in this deed against the claims of the vendor and all others could have the effect to discharge the lien, then very few vendors in this State would have a lien, for nearly every deed has a covenant of warranty or at least contains the words “grant, bargain and sell,” which import that the land is free from incumbrance done or suffered by the grantor. (1 W. S., 274, §8.)

Edwards & Son with Herndon, Attys, for Respondent.

It is a well settled principle of law in this State, that where the vendor of real estate takes collateral security for the purchase money of real estate, or any part thereof, he thereby waives his vendor's lien on said real estate. (Durette vs. Briggs, 47 Mo., 356, and authorities cited.)

The recital of said deed from Lisle to Bukley “That the balance of said purchase money, to wit: one thousand six hundred and eighty dollars, is secured to be paid,” is a waiver of the vendor's lien, and the plaintiff is estopped thereby from denying that any part of said purchase money was unpaid, and said words act as an estoppel against the plaintiff. (Durette vs. Briggs, 47 Mo., 360.)

The grantor in a deed is considered as having acknowledged under seal and in writing, the existence of the matters which he recites, and he is estopped from denying so solemn an admission. (Same case, p. 361.)

Recitals in a deed are binding on all claiming under the deed. (Douglas vs. Scott, 5 Ohio, 194; S. C. 7 Ohio, 227.) By the same rule the party making the admissions should be bound by such admissions.

Lisle by express covenant, conveyed the land to the Bukleys “free from the claim of him, the said John E. Lisle.” This is an express waiver of his lien as vendor, and he is estopped by his warranty against himself from setting up his lien as vendor.

Peacher in his answer, denies all knowledge of the non-payment of any part of the purchase money. It is admitted in the record that there is no evidence tending to show that he had such notice, apart from the implied notice in the deed from Lisle to the Bukleys, and unless the deed imparts notice there is no lien.

Although there might have been positive proof that Peacher knew that the purchase money had not been paid, this fact would give the plaintiff no right to recover against Peacher. Lisle waived his right to look to the land for payment of the purchase money. First, by stating in his deed that “The balance of the purchase money was secured to be paid.” Second. By conveying the land “free from all claim of himself.” Lisle is estopped from claiming a lien on the land as vendor, for this claim is expressly in the teeth of his warranty as against himself.

SHERWOOD, Judge, delivered the opinion of the court.

The facts in this case as disclosed by the record are these:

John E. Lisle on the 17th day of October, 1867, by his deed of that date, conveyed to Charles Bukley and Anna, his wife, certain lands in Howard county, Missouri. This deed, which was duly acknowledged on the same day, and filed for record on the 5th of the following November, recites “that the said John E. Lisle, party hereto of the first part, for and in consideration of the sum of two thousand two hundred and forty dollars; five hundred and sixty dollars part thereof cash in hand paid by the said Charles Bukley and Anna his wife, the receipt whereof is hereby acknowledged; the balance of the said purchase money to-wit: One thousand six hundred and eighty dollars is secured to be paid, he the said John E. Lisle hath sold and by this deed does hereby grant, bargain, sell alien, release and convey unto them, the said Charles Bukley and Anna, his wife, the following described lands, &c., &c., and concludes with a habendum clause, in the words:

To have and to hold said lands, with all and singular, the appurtenances thereto attached and belonging unto them the said Charles Bukley and Anna Bukley his wife, free from the claim of him, the said John E. Lisle, and also free from the claim or claims of all and every person whatsoever.”

Lisle afterwards died; Samuel C. Major became the administrator of his estate, and the residue of the purchase money, eleven hundred and twenty dollars, being due and unpaid, said Administrator brought his suit in the Circuit Court of Howard County against Charles Bukley and William J. Peacher, (the latter having purchased the land from Bukley and wife) to enforce the vendor's lien for the unpaid purchase money.

The petition after reciting the facts above set forth, charges that Peacher, with full knowledge that the balance of the purchase money had not been paid, bought the land from Bukley and wife and received a conveyance from them therefor.

Bukley failing to appear, judgment was...