Ahrend v. Odiorne

• Decision Date: 04 September 1875
• Citation: 118 Mass. 261
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Simon Ahrend v. George F. Odiorne & others

118 Mass. 261

Simon Ahrend v. George F. Odiorne & others

Supreme Court of Massachusetts

September 4, 1875

Suffolk. Bill in equity, filed October 8, 1874, by Simon Ahrend against George F. Odiorne, Mary Louisa Stebbins and William Barnard, alleging the following facts:

In February, 1874, the defendant Odiorne and Retire C. Sturges represented to the plaintiff that certain persons were building a schooner for them in the State of Connecticut, and they thereupon agreed with the plaintiff to cause said vessel to be built, finished and delivered to the plaintiff on or before August 1, 1874; and in consideration thereof the plaintiff agreed to convey to them two parcels of land in Boston (described in the bill) of the value of $ 28,500, over and above certain mortgages. On February 7, 1874, the plaintiff, at their request, conveyed said parcels of land to Sturges and Odiorne, subject to certain mortgages, which the grantees agreed to pay.

On or about June 1, 1874, work on the schooner ceased, and it has since remained in an unfinished condition. Sturges and Odiorne, on or about said day, and repeatedly since, notified the plaintiff that they should be unable to build and deliver the schooner, and should not build and deliver it in accordance with their agreement; and that they would, if the plaintiff so requested, convey said parcels of land to him free from all incumbrances made or suffered by them. The plaintiff repeatedly requested them to convey the said parcels of land to him as they agreed; and Sturges on August 27, 1874, released and quitclaimed to the plaintiff one undivided half of said parcels of land, but the same was subject to incumbrances as hereinafter stated. Odiorne though often requested, refused and neglected to convey to the plaintiff his one undivided half of said parcels.

On June 23, 1874, W. R. Burr brought an action against Odiorne, and caused his interest in said parcels of land to be attached to satisfy the judgment therein; and on August 7, 1874, Burr brought a second action against Odiorne, and caused the interest of Odiorne in said parcels of land to be attached to satisfy the judgment therein, and Odiorne has suffered these attachments to remain.

The defendant Stebbins is the sister of Odiorne, and she on July 15, 1874, at the request and for the benefit of Odiorne, and well knowing all the facts hereinbefore alleged, and that Sturges and Odiorne had received and retained the conveyance of the said parcels of land without having paid the consideration therefor, and that they intended not to pay the same, as the plaintiff is informed and believes, on July 15 1874, at the request and for the benefit of Odiorne, brought a suit against Sturges and caused his interest in the two parcels of land to be attached, to satisfy the judgment in that action. Stebbins, as the plaintiff is informed and believes, then and there had no legal cause of action against Sturges, and knew all the facts hereinbefore stated. On July 31, 1874, Odiorne conveyed an undivided one half interest in said parcels of land to Stebbins; which conveyance was without consideration; Stebbins then and there well knowing all the facts hereinbefore set forth, as the plaintiff is informed and believes, and the conveyance was in fraud of the rights of the plaintiff.

On August 6, 1874, Stebbins conveyed an undivided one half interest in the land to the defendant Barnard; which conveyance was made without consideration; the defendant Barnard then and there well knowing all the facts hereinbefore set forth, as the plaintiff is informed and believes, and the conveyance was in fraud of the rights of the plaintiff.

The bill contained specific interrogatories to the defendants on the various matters alleged. The prayer of the bill was for an injunction restraining the defendants from making any conveyance of the land, or placing any incumbrance or suffering any incumbrance to be placed thereon; and that they be decreed to hold said undivided one half interest in the land, subject to a lien in favor of the plaintiff for the value of the consideration agreed to be paid by Odiorne therefor, to convey to the plaintiff an undivided one half interest in said lands free from all incumbrances made or suffered by them; that they be decreed to remove and discharge the attachment on the interest of Sturges in the lands made in the suit of Stebbins against Sturges; that a proper person be appointed to collect and receive the rents or other moneys from the undivided one half interest in the lands, and for general relief.

The defendants demurred to the bill, and assigned the following grounds of demurrer: "1. That it appears by the bill that the plaintiff has a plain, adequate and complete remedy at law. 2. That the plaintiff has not by his bill made or stated a case which entitles him in equity to the relief or discovery prayed for."

The case was reserved, upon the bill and demurrer, by Endicott J., for the consideration of the full court.

Demurrer sustained and bill dismissed.

S. H. Dudley & A. E. Pillsbury, for the defendants.

R. M. Morse, Jr., for the plaintiff.

Gray, C. J. Ames & Endicott, JJ., absent.

OPINION

Gray, C. J.

The plaintiff principally relies upon the doctrine of the English courts of chancery that the vendor of real estate by an absolute deed has a lien thereon for the unpaid purchase money, without proof of any agreement of the parties to that effect.

The earliest case which contains a full discussion of the doctrine, the source from which it is derived, and the reasons and authorities by which it is supported, is Mackreth v. Symmons, 15 Ves. 329, decided by Lord Eldon in 1808.

If as the learned chancellor thought, "the doctrine is probably derived from the civil law as to goods," it is somewhat remarkable that it was never applied in England except to real estate. Adams on Eq. 127.

The only grounds upon which it has been rested are natural equity; a supposed intention of the parties; and a trust arising out of the unconscientiousness of the vendee's holding the land without paying the price.

It was forcibly argued by counsel in Blackburne v. Gregson, 1 Cox Ch. 90, 100; S. C. 1 Bro. Ch. 420; and not answered by the court, "As to the general question of the lien, it is called a natural lien, but it certainly is not so with respect to personalty, which, if once delivered, it is conclusive, though concealed from all mankind; and there seems as much natural equity in the case of personalty as realty."

The presumption of an intention of the parties has been well disposed of by Chief Justice Gibson: "The implication that there is an intention to reserve a lien for the purchase money, in all cases in which the parties do not by express acts evince a contrary intention, is in almost every case inconsistent with the truth of the fact, and in all instances, without exception, in contradiction of the express terms of the contract, which purport to be a conveyance of everything that can pass." Kauffelt v. Bower, 7 S. & R. 64, 76, 77.

The theory that a trust arises out of the unconscientiousness of the purchaser would construe the non-performance of every promise, made in consideration of a conveyance of property to the promisor, into a breach of trust; and would attach the trust, not merely to the purchase money which he agreed to pay, but to the land which he never agreed to hold for the benefit of the supposed cestui que trust.

The earliest cases upon this subject in England were decided long since the settlement of Massachusetts; and in all those decided before our Revolution, (except Bond v. Kent, 2 Vern. 281 in which the purchaser secured part of the purchase money by mortgage and gave a note payable on demand for the rest, and it was held that the amount of the note was not a charge upon the land; and Gibbons v. Baddall, 2 Eq. Cas. Ab. 682, note, which is very briefly stated, without indicating when or by whom it was decided, in a volume called by Lord Eldon a "book of no very high character;" Duffield v. Elwes, 1 Bligh N. R. 497, 539,) either the conveyance was retained in the custody of the vendor as security for the payment of the purchase money, as in Chapman v. Tanner, 1 Vern. 267; Pollexfen v. Moore, 3 Atk. 272; Fawell v. Heelis, Ambl. 724, 726; Coppin v. Coppin, Sel. Cas. in Ch. 28; S. C. 2 P. Wms. 291; or the statements of the general doctrine were obiter dicta, as in Harrison v. Southcote, 2 Ves. Sen. 389, 393; Walker v. Preswick, Ib. 622; Burgess v. Wheate, 1 W. Bl. 123, 150; S. C. 1 Eden 177, 211.

Lord Eldon himself, in Mackreth v. Symmons, said: "It has always struck me, considering this subject, that it would have been better at once to have held that the lien should exist in no case, and the seller should suffer for the consequences of his want of caution; or to have laid down the rule the other way so distinctly that a purchaser might be able to know, without the judgment of a court, in what cases it would, and in what it would not, exist." 15 Ves. 340. But he felt himself obliged to declare, as the result of all the authorities, that it was clear that different judges would have determined the same case differently; that if some of the cases, that had been determined, had come before himself, he should not have been satisfied that the conclusion was right; and that it was "obvious that a vendor taking a security, unless by evidence, manifest intention or declaration plain, he shows his purpose, cannot know the situation in which he stands, without the judgment of a court how far that security does contain the evidence, manifest intention or declaration plain upon that point." 15 Ves. 342.

So Mr Justice Story, in Gilman v. Brown, 1 Mason 191, 221, 222, upon a review of the English case...