Boynton v. Champlin

• Decision Date: 30 April 1866
• Citation: 1866 WL 4642,42 Ill. 57
• Parties: CHARLES O. BOYNTONv.HORACE S. CHAMPLIN.
• Court: Illinois Supreme Court

42 Ill. 57

1866 WL 4642 (Ill.)

CHARLES O. BOYNTON

v.HORACE S. CHAMPLIN.

Supreme Court of Illinois.

April Term, 1866.

APPEAL from the Circuit Court of De Kalb county; the Hon. T. D. MURPHY, Judge, presiding.

This was a suit in chancery instituted in the court below by Horace S. Champlin against Charles O. Boynton, Morris Walrod, Robert H. Walrod, Benjamin Page and James S. Waterman, to enforce a vendor's lien, claimed by the complainant, upon the north half of the south-west quarter of section twenty, in township forty, north of range five, east of the third principal meridian, situate in De Kalb county.

It appears, that, on the 31st of March, 1857, the complainant, Champlin, sold the premises to Morris Walrod, and took in payment therefor, or as security for the purchase money, a bill of exchange drawn by Morris Walrod, the vendee, upon George Walrod, which was accepted by the latter before Champlin conveyed to his vendee. The defendants, Boynton, Robert H. Walrod, Page and Waterman, are alleged to be subsequent purchasers and creditors, with notice of complainant's equitable lien, he averring that George Walrod refuses to pay the money.

On the hearing, the court decreed that the complainant held an equitable lien upon the land for the unpaid purchase money represented by the bill of exchange.

Boynton thereupon took this appeal. The only question considered by the court is, whether the taking of the bill of exchange by the vendor was a waiver of his lien.

Mr. R. L. DIVINE, for the appellant.

The appellee's alleged vendor's lien was waived, by taking distinct security in the shape of a bill of exchange, drawn by Morris Walrod on George Walrod, for $1,800, the unpaid portion of the purchase money, and which was accepted by George Walrod, he thereby becoming the principal debtor to Champlin, the appellee, and Morris Walrod being placed in the attitude of surety.

The acceptor of a bill of exchange is the principal debtor, and the liability of the drawer is only secondary or collateral.

“The act of accepting a bill of exchange, is like the making and delivery of a promissory note.” Edwards on Bills and Notes, 405.

“He (the acceptor) is primarily liable to pay the bill, and the drawer and indorsers are liable on his default.” Chitty on Bills, 183.

Taking this independent security, which consisted of George Walrod's personal liability, to which was superadded the liability of Morris Walrod, in the character of a surety or drawer, was a waiver of the pretended vendor's lien.

“The mere taking of the bond, bill or note of the vendee, is not of itself regarded as an act of waiver, for such instruments are only the evidence of the debt. But the taking of the bond, bill, or note of the purchaser with security, is evidence that the vendor does not rely on the lien, but on the security, and extinguishes the lien. The lien is also discharged, by the taking of any independent security, such as a deposit of stock, a pledge of goods, or the responsibility of a third person.” Conover v. Warren et al., 1 Gilm. 501.

“Notwithstanding the decision of the master of the rolls in Grant v. Mills, 2 Ves. and Beames, 306, holding that a bill of exchange, drawn by the vendee, and accepted by him and his partner, did not waive the lien; the sounder doctrine and higher authority is, that taking the responsibility of a third person, for the purchase money, is taking security, and extinguishes the lien.” 4 Kent's Com. 153.

In Gilman v. Brown, 1 Mason, 215, it was said by STORY, J.: “On a careful examination of all the authorities, I do not find a single case in which it has been held, if the vendor takes a personal collateral security, binding others as well as the vendee, as, for instance, a bond or note, with a surety or an indorser, or a collateral security by way of pledge or mortgage, that under such circumstances a lien exists on the land itself. * * * Looking to the principle upon which the original doctrine of lien is established, I have no hesitation to declare, that taking the security of a third person for the purchase money, ought to be held a complete waiver of any lien upon the land.”

Messrs. RUNYAN & AVERY, for the appellee.

The taking of a bill of exchange is prima facie a satisfaction of a debt, but only that. Chitty on Bills, 172, 173; 5 Tenn. 513.

An express and clear agreement by the creditor to take a bill as payment at all events, and whether honored or not, would amount to a payment of the debt, but in the absence of such stipulation, even a partner of the debtor, unknown until the dishonor, may be sued. Chitty on Bills, 173, note a; Brown v. Hawley, 2 Bosw. & Pul. 518; 3 Chitty Com. Law, 131.

A vendor does not waive his lien on his estate by taking the promissory note or acceptance of the vendee, and receiving its amount by discount. Chitty on Bills, 174; Ex parte Loaring, 2 Rose, 79; Grant v. Mills, 2 Ves. & B. 306; Chitty, Jr., 893.

When real property was devised to trustees in trust to sell and pay the produce to the children of the testator, and the children sold the property to one of the executors in consideration of a sum secured by bills payable by installments, and as to some shares further secured by an assignment of a policy of insurance, and the executor became bankrupt without having paid the bills, it was held, that the children all had a lien on the estate for the sums unpaid. Ex parte Loty, 2 Mont. & Ay. 609; 1 Dea. 557, S. C.

In general, when the bill is dishonored, and the holder uses due diligence, not only the parties to the bill are liable to be sued thereon, but the first liability on the original consideration revives. Smith v. Wilson, Andr. 187; Papley v. Ashley, 6, 147, (Chitty, J., 225); Ward v. Evans, 2 Lord Raymond, 928; Hickling v. Hardy, 7 Lamb, 312; Bishop v. Rowe, 3 Manh. & S., 363 (Chit., J., 921.)

It has been decided, that, when the manager of a colliery pays a creditor on the colliery with a bill, which is not paid, the colliery remains liable to the payment of the original debt. Tempest v. Ord, 1 Mod. 89.

In a sale of goods the law implies a contract that those goods shall be paid for; the same rule applies to land. It is competent to the party to agree that the payment shall be by a particular bill. In this instance it would be extremely difficult to persuade a jury, under the direction of a judge, to say an agreement to pay by bills was satisfied by giving a bill, whether good or bad. In the action upon the bill in this cause, the jury decided that the giving of the bill was no payment. Scroggs v. Goss, 8 Yerg. 175; Tobey v. Barber, 5 Johns. 68; Wilson v. Ford, 6 Id. 110.

If a party receive in payment for goods, or lands, sold, counterfeit bank notes, or other notes which have no value, it is not a payment, although the debtor paid them bona fide. Markle v. Hatfield, 2 Johns. 455; Ellis v. Wild, 6 Mass. 331; Burd v. Cook et al., 15 Johns. 241; Kune v. Thompson, 4 Gill & Johns. 463.

The taking of a bill of exchange is, at most, only prima facie evidence of a satisfaction and extinguishment of an antecedent debt, in this case of payment of the purchase money, liable to be rebutted, which is effectually done. Varner v. Nobleborough, 2 Greenl. 121; Wallace v. Agry, 4 Mason, 336.

Purchase money is the consideration which is agreed to be paid by the purchaser of a thing in money. It is the duty of the purchaser to pay the purchase money as agreed upon in making the contract, and, in case of conveyance of an estate before it is paid, the vendor is entitled, according to the laws of England, which have been adopted in several of the States, to a lien on the estate, for the purchase money so remaining unpaid. This is called an equitable lien. Chapman v. Tannar, 1 Nem. 267; Hauffeld v. Bower, 7 S. & R. 73; 6 Yerger, 50; Outon v. Mitchell, 4 Bibb, 239; Garson v. Green et al., 1 Johns. Ch. 308; Bayley v. Greenleaf, 7 Wheat. 46; Zubank v. Poston et al., 5 Monroe, 287; White v. Cozonoves et al., Har. & Johns. 106; Ghislin et al. v. Ferguson, 4 Id. 522; Fisher v. Salmon, 1 Col. 414; Galloway v. Hamilton et al., 1 Dana, 576; Hundley v. Lyons, 5 Munf. 342; Wynne v. Alston, Dev. Eq. 163; Henderson et al. v. Stewart et al., 4 How. 256; Watson et al. v. Wells, 5 Conn. 468; Meeks et al. v. Ealys et al., 2 J. J. Marsh. 330; Greenleaf v. Strong, 1 Bibb, 590.

This lien of the seller exists only between the parties and those having notice that the purchase money has not been paid. Clark v. Hunt, 3 J. J. Marsh. 557; Lyde et al. v. The Fred. Co. Bank, 3 Gill & Johns. 425; Blythe et al. v. Banks et al., 6 Monroe, 198; Richards v. Leaming et al., 27 Ill. 431; Hawkinson et al. v. Casey et al., 29 Id. 80; Keith et al. v. Horner, 32 Id. 524; Prew v. Walters et al., 2 Scam. 35; Willis v. Henderson, Id. 19.

Where a vendor delivers possession of an estate to a purchaser, without receiving the purchase money, equity, whether the estate be or be not conveyed, and although there was not any special agreement for that purpose, and whether the estate be freehold or copy-hold, gives the vendor a lien on the land for the money. 3 Sugden on Vendors, 117; Smith v. Hibbard, 2 Dick. 730; Charles v. Andrew, 9 Mod. 152; Tophan v. Constantine, Toml. 135; Evans v. Tweedy, 1 Beav. 55; Winter v. Lord Anson, 3 Russ. 488; Garson v. Green, 1 Johns. Ch. 308; Gilman v. Brown, 1 Mason, 192; S. C., 4 Wheat. 255; Irvine v. Campbell, 6 Binn. 118; Williams v. Price, 5 Munf. 507; Slouffers v. Coleman, 1 Yeates, 393; White v. Casonove,1 Har. & Johns. 106; Ridgeley v. Carey,4 Har. & M. Hen. 167; Hatcher v. Hatcher, 1 Rand. 53; Cox v. Fenwick, 3 Bibb, 183; Kennedy v. Woolfolk, 3 Hager, 197.

The rule of law in relation to real estate is, that the vendor has, without any express agreement for that purpose, a lien on the premises conveyed, even after possession thereof is delivered to the purchaser, for the purchase money, provided he has not taken a distinct and independent security therefor, and the land has not passed by...