Birdsall v. Cropsey

• Decision Date: 04 February 1890
• Citation: 29 Neb. 672,44 N.W. 857
• Parties: BIRDSALL v. CROPSEY ET AL.
• Court: Nebraska Supreme Court

29 Neb. 672

44 N.W. 857

BIRDSALL

v.CROPSEY ET AL.

Supreme Court of Nebraska.

Feb. 4, 1890.

Syllabus by the Court.

1. A vendor of real estate has an equitable lien upon the lands for the unpaid purchase money, as between him and the vendee, and those claiming under the vendee with notice, in all cases when the vendor has contracted to convey, but has made no conveyance.

2. If a vendee makes payment of any part of the consideration after receiving notice of an adverse equity, to that extent he is not a bona fide purchaser.

3. Upon the facts set out at length in the opinion, held, that the appellant is entitled to a vendor's lien.

Appeal from district court, Lancaster county; CHAPMAN, Judge.J. R. Webster and E. P. Holmes, for appellant.

Chas. O. Whedon, for appellees Briscoe and Van Duyn.

J. A. Marshall, for appellee Hawley.

NORVAL, J.

This is an action to foreclose the vendor's equity for purchase money of real estate sold by Hannah E. Birdsall to the defendant Andrew J. Cropsey. Plaintiff is vendor's assignee of the right to deferred payment. William C. Hawley and Mary S. Hawley made conveyance of the premises to Cropsey. Briscoe and Van Duyn are grantees of Cropsey, holding the fee to the premises. The district court dismissed the plaintiff's bill, and he appeals. It appears by the pleadings and evidence that on the 31st day of December, 1886, the defendants Hawley made two written contracts for the sale of the lands in question to Andrew J. Cropsey, Emma R. Cropsey, and Hannah E. Birdsall,--one for the W. 1/2 of the S. E. 1/4 of section 16, in township 10 N., of range 7 E., and the other for the E. 1/2 of the same quarter section. These contracts to convey were conditioned that the vendees, in addition to $150 paid down, should pay $150 by June 1, 1887; $3,849.99 by January 1, 1888; $3,849.99 by January 1, 1889; $3,849.99 by January 1, 1890; and assume certain mortgages then against the land. The contracts also provided for a forfeiture in case of default on 30 days' written notice. The contracts were duly acknowledged, and were filed for record January 3, 1887. On the 1st day of January, 1887, the Cropseys and Hannah E. Birdsall entered into a writing, agreeing with each other “that, if either failed to make his or her share of the future payments on the contracts with the Hawleys for 30 days, the other or either of them may make the pay ments, and the one making the same shall take the deed for the premises, the others relinquishing all claims to them.” This contract was acknowledged, and December 24, 1887, it was duly recorded. On the 2d day of June, 1887, Hannah E. Birdsall made a contract of sale of her one-third interest of all of said lands, excepting 10 acres in the south-west corner, to the defendant A. J. Cropsey, and agreed to convey the same by warranty deed, subject to certain mortgage incumbrances, in consideration that A. J. Cropsey pay $1,000 in hand, assume and pay the deferred payments to the Hawleys, and pay Mrs. Birdsall $2,000 in payments, $161.21 then deducted as Birdsall's portion of the payments then falling due on the Hawleys contracts, $500 due October 2, 1887, $332.79 due January 1, 1888, and $1,000 due June 2, 1888, with interest at 8 per cent. from June 2, 1887. This contract was acknowledged and was duly recorded December 24, 1887. Cropsey paid Birdsall the $1,000 cash payment, but made no other payments under the contract. On the 2d day of January, 1888, the Hawleys served a written notice on Edward H. Birdsall, the husband and agent of Hannah E., and also on both the Cropseys, to comply with the contracts, or they would be canceled. At the time of the service of this written notice, Mr. Hawley was informed by the agent of Hannah E. Birdsall “that they had sold their interest in the contracts to Mr. Cropsey, and hadn't anything to do with it.” It also appears that the Cropseys and Birdsalls were unable to make the payment that fell due January 1, 1888; so it was agreed between Hannah E. Birdsall and A. J. Cropsey, on the 28th day of January, 1888, that the Hawleys should convey the lands to the Cropseys; that they should then convey the same, excepting 10 acres, to the defendants Briscoe and Van Duyn; that Briscoe and Van Duyn should pay to the Hawleys the balance due them on the contracts; that as a part of the purchase price Briscoe and Van Duyn were to convey to the Cropseys certain lands in Adams county; that upon this land Cropsey agreed to give Mrs. Birdsall a mortgage for $1,200, in full for her equity in the land, and in consideration thereof she was to release any claim she might have upon the land conveyed to Briscoe and Van Duyn. On the 28th day of January, 1888, the Hawleys conveyed the quarter section to the Cropseys, and on the same day they conveyed all, excepting ten (10) acres, to Briscoe and Van Duyn. The latter paid the Hawleys the balance due them on the contracts, part in cash and the rest secured by mortgage, which has since been fully paid. They also executed a deed to Cropsey for the Adams county land, as agreed. It is established by the weight of the evidence that Cropsey agreed to give a mortgage to Mrs. Birdsall on the Adams county land to secure the payment of $1,200 for her equity in the land, and that no mortgage was ever given or tendered by the Cropseys as promised. A day or two after Briscoe and Van Duyn received their deed, and before they had delivered to Mr. Cropsey the deed for the land in Adams county, Mr. Van Duyn was notified by Mrs. Birdsall's attorney...