Carey v. Boyle
| Decision Date | 21 November 1882 |
| Citation | 14 N.W. 32,56 Wis. 145 |
| Parties | CAREY v. BOYLE AND ANOTHER. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Waushara county.Nath. Pereles & Sons and E. P. Smith, for respondent, James Carey.
M. S. Kimball and Finch & Barber, for appellants, Michael Boyle and another,
It appears very clearly from the opinion of Mr. Justice ORTON on the former appeal--53 Wis. 574 [S. C. 11 N. W. REP. 47]--that in equity the plaintiff must be regarded as having a vendor's lien upon the 120 acres of land purchased by him for and in the name of his brother Patrick, to whose rights the appellants succeeded, and that such lien had the essential characteristics and incidents of a mortgage. Such being the character of the transaction, it is evident that the plaintiff might, had he chosen to do so, have enforced the same by a sale of the land through apt proceedings in equity. In that event he would have been required to have first sold that portion of the premises not included in the homestead, in case the same could be sold separately therefrom without injury to the interests of the parties. Section 3163, Rev. St.; 53 Wis. 583; [S. C. 11 N. W. REP. 47.]
Notwithstanding this right of the plaintiff to enforce such vendor's liens first against that portion of the 120 acres of land which was not included in the homestead, and then against the homestead itself for the balance, yet he voluntarily chose to waive such lien as to all the land except that included in the homestead, and hence, under the decision of this court on the former appeal, he is chargeable as of the date of sale for just what the land not included in the homestead was sold for by the administrator, less the actual statutory expenses of making such sale and confirming the same, exclusive of any fee, commission, or per cent. of such administrator. In other words, the plaintiff is chargeable as of the date of the sale with the same amount that he would be if such sale had been his own by way of enforcing his vendor's lien. It is true, the expense of enforcing such vendor's lien, in equity, might not have been just the same as the actual statutory expenses of converting the land into money by the administrator; yet, as the plaintiff waived his lien thereon, he is in equity, and as against those who have succeeded to the rights of the homestead, chargeable for the amount realized upon the sale, less the statutory expense paid out by the administrator for...
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Bray v. Booker
...92. So if a third person furnish the purchase money he is entitled by subrogation to a vendor's lien and can enforce it. Carey v. Boyle, 56 Wis. 145, 11 N.W. 47, 14 N.W. Bemis v. First Nat. Bank, 40 S.W. Rep 127. The lien exists in favor of a third person to whom the vendee at vendor's requ......
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Demeter v. Wilcox
...3 Barb. 643; Mize v. Barnes, 78 Ky. 506; Bolles v. Carli, 12 Minn. 113; Jones v. Parker, 51 Wis. 218; Cary v. Boyle, 53 Wis. 574 and 56 Wis. 145. (6) Of course last rule would not apply as against the vendor himself. The latter's lien prevails over the lien of a third party who furnishes th......
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Otis v. Gregory
... ... purchase-money as against the person for whom it was paid ... Magee v. Magee, 51 Ill. 500; Carey ... v. Boyle, 53 Wis. 574, 11 N.W. 47; Jones v ... Parker, 51 Wis. 218, 8 N.W. 124; Carey v ... Boyle, 56 Wis. 145, 14 N.W. 32. The lien in such ... ...
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Dwenger v. Branigan
...to purchase the land, he, A., was entitled to be subrogated to the rights of the vendor. See, also, Jones v. Parker, 51 Wis. 218; Carey v. Boyle, 56 Wis. 145. closing this opinion we may properly remark that, although this cause was apparently submitted to a jury for trial as an ordinary ci......