Baker v. Fleming

• Decision Date: 01 November 1899
• Docket Number: Civil 665
• Citation: 6 Ariz. 418,59 P. 101
• Parties: A. E. BAKER, Plaintiff and Appellant, v. S. J. FLEMING et al., Defendants and Appellees
• Court: Arizona Supreme Court

59 P. 101

6 Ariz. 418

A. E. BAKER, Plaintiff and Appellant, v. S. J. FLEMING et al., Defendants and Appellees

Civil No. 665

Supreme Court of Arizona

November 1, 1899

APPEAL from a judgment of the District Court of the Fourth Judicial District in and for the County of Yavapai. R. E. Sloan Judge. Affirmed.

The facts are stated in the opinion.

Ross &amp O'Sullivan, and E. M. Sanford, for Appellant.

Andrews & Ling, H. D. Stocker, of Counsel, for Appellees.

OPINION

DAVIS, J.

-- On the fourteenth day of July, 1896, the appellant, A. E. Baker sold and conveyed to S. J. Fleming and R. T. Tustin, by deed absolute, certain mining property situated in Yavapai County receiving part of the purchase price thereof in cash and the written obligations of the said Fleming and Tustin for the residue. No express lien was reserved, however, for the unpaid portion of the purchase money. On or about the twentieth day of August, 1896, the Providence Gold Mining Company took a conveyance of said property from Fleming and Tustin, with full knowledge on its part of the existence of the said purchase-money indebtedness to Baker. Thereafter, in a suit brought by Baker, it was sought to establish and enforce a vendor's lien against the property for the balance of the purchase money owing to him. From the judgment of the district court denying his right to such lien he has prosecuted this appeal.

The sole question presented for decision here is whether a grantor of real estate by absolute conveyance has an implied equitable lien thereon for the unpaid purchase money. If such a lien arises at all, it must, on principle, prevail alike against the grantee himself and all subsequent purchasers with notice. The doctrine of the English court of chancery, which recognizes and upholds such a lien, has been adopted in some of the states, rejected in some, and remains undecided or doubtful in others. There seems to have been no settled adjudication of the question in this territory, and we therefore feel at liberty to determine it as one of first impression. A considerable diversity of opinion exists concerning the origin of the vendor's lien. It has been accounted for as a trust, as an equitable mortgage, as arising from natural equity, and as a contrivance of the chancellors to evade the unjust rule of the early common law by which land was free from the claims of simple contract-creditors. The grounds upon which the doctrine seems generally to have been rested in the earlier English cases were those of 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. In Ahrend v. Odiorne, 118 Mass. 261, Mr. Justice Gray, now of the supreme court of the United States, after an elaborate examination of the question, concluded that the foundation of the doctrine was that justice required that the vendor should be enabled, by some form of judicial process, to charge the land in the hands of the vendee, as security for the unpaid purchase money, and that the restriction of the doctrine to real estate suggested the inference that the court of chancery was induced to interpose by the consideration that by the law of England real estate could not be attached on mesne process, nor, except in certain cases, and to a limited extent, be taken in execution for debt. The learned judge rejected the theory of natural equity, because that would apply to a sale of chattels as well as of land; and the theory of a trust, as that would include too many other cases to which confessedly the doctrine had not been extended. The presumption of an intention of the parties is thus disposed of by Mr. Justice Gibson, in Kauffelt v. Bower, 7 Serg. & R. 64, 10 Am. Dec. 428: "The implication that there is an intention to reserve a lien for the purchase money in all cases where 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 purports to be a conveyance of everything that can pass." Speaking of the nature of the vendor's lien, Mr. Justice Story, in Gilman v. Brown, 1 Mason, 191, Fed. Cas. No. 5,441, said: "It is a right which has no existence until it is established by the decree of a court in the...