Dayhuff v. Etc
| Decision Date | 31 January 1876 |
| Citation | 81 Ill. 499,1876 WL 10035 |
| Parties | WILLIAM DAYHUFFv.PHILIP DAYHUFF et al. Admrs. etc. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
WRIT OF ERROR to the Circuit Court of Fayette county; the Hon. A. J. GALLAGHER, Judge, presiding. Messrs. VANDORSTON & CAMPBELL, for the plaintiff in error.
Messrs. HENRY & FOUKE, for the defendants in error.
This was a suit in chancery, in the Fayette circuit court, instituted by the administrators of John Dayhuff, deceased, and against William Dayhuff, to enforce a vendor's lien, the vendor being the intestate of complainants.
Much testimony was heard, and on the hearing, the court decreed as prayed, and the defendant brings this writ of error.
The principle point made by the plaintiff in error is, that as the legal representatives of John Dayhuff had sold the note, alleged to have been given for the land, to one Smith, since the commencement of the suit, but had not assigned the same, the complainants had no cause of action.
It has been held by this court, and this is the universal doctrine, that a vendor's lien does not pass to the assignee of the note given for the purchase money, and will not be enforced in his favor. Richards v. Leaming, 27 Ill. 431; Keath et al. v. Horner, 32 ib. 524. Here, the note was not assigned. The contract to sell it to Smith was made after the commencement of the suit to enforce this lien.
The note not having been transferred, the lien can be enforced, after the death of the vendor, by his personal representatives, for the benefit of the estate. Keath et al. v. Horner, supra.
The evidence, we think, fully establishes the fact that this note for three hundred and twenty-five dollars, was given in payment for the land. The court found but two hundred dollars, part thereof, so applicable, and decreed a lien for the payment of that sum. As the complainants are content with that, there can be no cause of complaint by plaintiff in error, it being a less sum than the court might have found from the testimony.
We do not see any error in the decree, and it must be affirmed.
Decree affirmed.
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... ... It grows out of the implication of law that the seller does not intend to release his claim on the land for the purchase money. The vendor's lien, thus arising by implication of law, is personal, and cannot be assigned. Keith v. Horner, 32 Ill. 524;Dayhuff v. Dayhuff, 81 Ill. 499;Small v. Stagg, 95 Ill. 39;Bonnell v. Holt, 89 Ill. 71. But where the lien is expressly reserved in the deed, and so arises out of the express contract of the parties, it is transferable, and the assignee may enforce it in a court of equity. 28 Am. & Eng. Enc. Law, p. 190; ... ...
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...58 Ill. 464. A vendor's lien is personal and cannot be assigned: Richards v. Leaming, 27 Ill. 431; Keith v. Horner, 32 Ill. 524; Dayhuff v. Dayhuff, 81 Ill. 499; McLaurie v. Thomas, 93 Ill. 291. The contract and possession constitute a legal title; Staley v. Murphy, 47 Ill. 241; Stow v. Rus......
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