Akers v. Luse
| Citation | 56 Iowa 346,9 N.W. 303 |
| Parties | AKERS v. LUSE AND OTHERS. |
| Decision Date | 15 June 1881 |
| Court | United States State Supreme Court of Iowa |
OPINION TEXT STARTS HERE
Appeal from Johnson district court.
Action to enforce a vendor's lien. The plaintiff sold and conveyed certain real estate to the defendant Marvin R. Luse, and took therefor a promissory note signed by him and one Starkey. Afterwards, both Luse and Starkey failed in business and became pecuniarily irresponsible, and the note is unpaid. To the petition setting up the above facts the defendants demurred, upon the ground that it appeared that the plaintiff's vendor's lien was waived by taking a note from the purchaser for the purchase money signed by Starkey. The court sustained the demurrer. The plaintiff standing by his petition, judgment was rendered for the defendants. The plaintiff appeals.Wm. J. Haddock, for appellant.
Joe A. Edwards and W. F. Hindman, for appellees.
Where a vendor of real estate takes collateral security for the purchase money, he thereby waives presumptively his vendor's lien. Hendrick v. Eggleston, 8 N. W. REP. 786. It is denied, however, that the petition shows that the plaintiff took collateral security, because, while it is shown that he took a note signed by Starkey, yet it is averred that Starkey is irresponsible. The plaintiff relies upon Johnson v. McGrew, 42 Iowa, 555. But in that case the note alleged to constitute security did not become the plaintiff's property. In the case at bar the collateral security consists in the name of Starkey as surety, and no question is raised in regard to Starkey's liability. The only question raised is in regard to the value of Starkey's name. Now, we are not prepared to say that where the vendor of real estate takes as collateral security the notes of an insolvent person, he does not thereby waive the vendor's lien. But, in the case at bar, it does not appear that Starkey was insolvent when the plaintiff took the note. Indeed, it is shown that he failed about two years afterwards. If the plaintiff waived his lien when he took the note, we do not think that it could be deemed to be re-instated by reason of the fact that afterwards Starkey became insolvent. Hendrick v. Eggleston, above cited.
In our opinion the demurrer was properly sustained. Affirmed.
To continue reading
Request your trial