Carey v. Boyle

• Decision Date: 13 December 1881
• Citation: 53 Wis. 574,11 N.W. 47
• Parties: CAREY v. BOYLE AND ANOTHER.
• Court: Wisconsin Supreme Court

53 Wis. 574

11 N.W. 47

CAREY

v.BOYLE AND ANOTHER.

Supreme Court of Wisconsin.

Filed December 13, 1881.

Appeal from circuit court, Waushara county.Nath. Pereles & Sons and E. P. Smith, for respondent.

M. L. Kimball and Finch & Barber, for appellant.

ORTON, J.

The findings of the circuit court, and which, we think, were warranted by the evidence, are, in brief and substance, as follows: James Carey, the respondent, purchased the 120 acres of land intended for the benefit of his brother Patrick, and paid the purchase money and directed the deed to be made to Patrick, which was done, and left with James, and which, on Patrick's paying part of the consideration money back to James in a landed interest which he held by inheritance, of the agreed value of one-half of it, and executing his notes on long time for the balance, was delivered to him; and Patrick went into possession and soon thereafter died, while occupying 40 acres of the land as a homestead; and soon thereafter his wife, Mary Ann, died, without issue, and Michael Boyle, one of the appellants, inherited as her heir, and went into possession of the homestead 40 acres. In the course of the administration of Patrick's estate James presented and proved said notes as claims against it, and on sale of 80 acres of said land not a homestead, received from the product thereof 20 per cent. of the amount of said notes and interest as his distributive share thereof. James Carey, the respondent in this suit, prays for the establishment of an equitable lien on the homestead 40 acres for the balance of such unpaid purchase money. The reason why the transaction took this form was that Patrick was unable to purchase the land and pay at that time the consideration money, and James desired to assist him in obtaining the land. On these facts a few self-evident observations may be made which may subserve the application of the proper equitable principles and authorities: (1) Although, strictly speaking, James was not the vendee of the land, in the sense of being the grantee in the first place, or the vendor in the sense of being the grantor to Patrick, yet, in the common acceptation of the term, he was the purchaser from the seller or vendor, and the seller or vendor to James, as the purchaser from him; (2) there was no privity except by the deed between Patrick and the original vendor, and no contract of sale or purchase as between them; (3) Patrick purchased of James, and by a contract in respect to the consideration materially different from that between James and the grantor; (4) the consideration or purchase money, so far as Patrick was concerned, was that which passed or was to pass directly from him to James, independent and distinct from that which passed between James and the grantor; (5) it follows that, so far as James and Patrick were concerned in the transaction, James was the seller and Patrick the purchaser, and these unpaid notes of Patrick to James are the evidence of the unpaid purchase money of the land; (6) this is a stronger case than if James had intervened only to furnish to Patrick the purchase money to be paid by him to the grantor in the deed on his own purchase directly from the grantor, and if it does not place James and Patrick strictly in the attitude and relation of vendor and vendee, it does place them in the relation of seller and purchaser, and, so far as the equitable principle of a vendor's lien for the purchase money is concerned, they occupy the relation, substantially, as vendor and purchaser, and no possible distinction can be made except that which is clearly nominal and technical. It is the same, in substance, as if James had taken the deed directly to himself and then deeded to Patrick.

In courts of equity, names merely, and legal definitions and distinctions, will not stand in the way of substantial equities, clearly established, and forms are disregarded, and the substance only is considered in the application of equitable principles, and especially in the enforcement of a vendor's lien for purchase money. Jones v. Parker, 51 Wis. 218; [S. C. 8 N. W. REP. 124.] In the true sense of this principle, so far as James and Patrick are concerned, they occupy the relation of vendor and purchaser in carrying into execution an independent contract of sale between themselves alone, different in terms from the contract of sale between James and the grantor in the deed, and there is no substantial reason why the principle and authorities which apply to a vendor's lien for the purchase money, should not directly apply to this case. If this is so, then there is no contention as to the right of the respondent James to enforce his lien for the unpaid purchase money upon the remaining 40 acres, divested of the homestead right of the appellants, which they inherited from the widow of James.

But it is contended that the respondent stood in the attitude of a stranger, merely furnishing to Patrick Carey the consideration for the purchase of the land; and his right to an equitable lien upon the land for the purchase money so furnished is contested on the ground that such a lien is strictly a personal one, and limited to the vendor himself. Treating the respondent, therefore, as a stranger or third person, who advanced or loaned to the purchaser the money for the express purpose of paying, and for no other purpose, and which is actually paid to the vendor by him, or by his directions, as the consideration for the purchase of the land, is he substituted or subrogated to the right of the vendor to an equitable lien upon the land for such purchase money? Such a right, according to many elementary writers, cannot be asserted on any just or equitable principle, because it is supposed to give an unjust preference to a mere creditor, and a right paramount to that of dower or preemption, not possessed by other creditors, and creates in him a secret trust which may mislead, deceive, or defraud other creditors. But all of these consequences may follow the vendor's equitable lien, and the only difference that is apparent in the two cases is the facility of ascertaining the existence of such a secret lien, which is, perhaps, greater in the case of the non-payment of the purchase money proper than of the non-payment of the money borrowed from a stranger, paid as the purchase money. In both cases the lien is enforced against volunteers and purchasers with notice alike, and others are alike protected from its operation.

The principle in either case is very much questioned, and in many of the states it is not recognized, which may have led many courts to doubt the expediency of its extension beyond the immediate parties to the sale; and its extension to third persons furnishing the purchase money under such circumstances cannot, perhaps, be said to be sustained by mere weight of authority, so much are the courts in conflict upon the question. However, so far as this state is concerned, it must be considered as a settled question that such third persons are entitled to the full benefit of the vendor's lien.

In Jones v. Parker, supra, a son bought land of his father, and at the time of the purchase the son borrowed part of the consideration money...