Hempfield R.R. Co. v. Thornburg

• Decision Date: 31 January 1866
• Citation: 1 W.Va. 261
• Parties: Hempfield Railroad Company v. Thomas Thornburg.
• Court: West Virginia Supreme Court

1 W.Va. 261

Hempfield Railroad Company

v.Thomas Thornburg.

Supreme Court of Appeals of West Virginia.

January Term, 1866.

1. A debtor paying money to a creditor is entitled to have it placed to the credit of a particular claim; but if he makes no selection the creditor can apply it where he chooses. If neither debtor nor creditor has made an application, the court will apply it to the claim for which the security is most precarious.

2. T. sold a parcel of land to the H. r. r. Co., for 300 dollars, and the right of way through his land for 200 dollars per acre, amounting to 1, 225 dollars; he also agreed with the company to remove certain buildings in the line of the proposed railroad for a compensation of 2, 275 dollars; the company paid only 2, 012 dollars and 50 cents and completed its road through the land, and T. brought suit to enforce his vendor's lien. Held:

That the decree of the court below, applying the amount paid by the company to the liquidation of the amount agreed to be given for the removal of the buildings, and declaring that T. had a lien on the lot sold, and on the right of way, for the payment of the sums due thereon respectively, must be affirmed; but before any sale should take place under the decree, T. should be required to execute a good and sufficient deed to the company.

This was an appeal from the decree of the circuit court of Ohio county. The facts are substantially stated in the opinion of the judge deciding it. The deed referred to, the incompleteness of which he states to be sufficient ground for reversing the decree, was dated November 16th, 1859, and purported to be "between Thomas Thornburg of the first part and the Hempfield Railroad Company of the second part." It was signed thus, "Witness the following signature and seal. Thomas Thornburg, [seal,] Amanda Thornburg, [seal.]" It was acknowledged by both Thornburg and wife in the usual mode, but the acknowledgement of the latter purported to be of a deed dated February 23rd, 1816.

James S. Wheat, counsel for the appellant, argued the following points: That the circuit court erred in applying the credit of 2, 012 dollars and 50 cents, exclusively to the liquidated damages. Lomax's Dig., vol 1, page 216. That the decree in the court below did not ascertain and determine the title or estate of the Hempfield Railroad Company in and to the parcels of land therein mentioned, but simply directed their sale in the mode prescribed: when the company in fact acquired nothing more under the contract with Thornburg, than the right of way over the lands in question; the title still being in Thornburg subject to the easement granted by him. Code of Va., chaps. 56 and 61; Amer. Law Rep., Oct., 1855. That the deed from Thornburg filed with the papers was defective, his wife not being a party to it, nor having properly acknowledged it.

Lamb & Paull and A. B. Caldwell, for the appellee.

To show that said 2, 012 dollars and 50 cents was correctly applied, it is sufficient to refer to 2 Greenl. on Evidence, sections 529, 531, 532 and 533.

That a vendor of real estate, (as well where the title is retained as where it has been conveyed,) has a lien upon the game for the amount of the purchase money, is laid down by all the elementary writers, and is too well settled in this State to be again drawn in question. Judge Story in his Equity Jurisprudence, vol. 2, page 444, sec. 1218, says: "The lien of the vendor of real estate for the purchase money is wholly independent of any possession on his part, and it attaches to the estate as a trust, equally, whether it be actually conveyed, or only contracted to be conveyed." Again he says, in section 1219, same vol. and page:" The principal upon which courts of equity have proceeded, in establishing this lien, in the nature of a trust, is, that a person who has gotten the estate of another, ought not, in conscience, as between them, to be allowed to keep it, and not pay the full consideration money." Again he says, in sec. 1217, same vol., page 240: "The usual course of enforcing such a lien, is by a sale of the property to which it is attached.

1 Washburn on Real Property, 533, sec. 1, says: "The vendor's lien is a security for the payment of the purchase money, and treated in the light of an equitable mortgage" and at page 536, sec. 7, of same vol., Washburn says: "This equitable mortgage, which equity raises by way of lien, in favor of a vendor, for the payment of the purchase money, rests upon the ground, that the purchaser in such case is trustee of the premises for the vendor, until the purchase money is paid."

The decisions in this State, as well in cases where the property has been actually conveyed, as where it has only been contracted to be conveyed, fully sustain the doctrine laid down by elementary writers, but inasmuch, as by a statute of this State, passed before the execution of the contract in this suit, (see Code, chap. 119, sec. 1,) the equitable lien of the vendor was abolished, we confine our citations to such decisions only as recognize the vendor's lien, in cases where, as in this case, the vendee has retained the title as a security for the payment of the purchase money. Before doing this, however, (in view of the statute just referred to,) we note the distinction between the implied lien, where the legal title has been parted with, and the right of the vendor who has retained the title, to enforce a specific execution of the contract. This distinction is very clearly laid down in the case of Adams vs. Stillwell, 14 Ohio, 20. "The lien of the vendor results from the fact that equity holds the vendor clothed with the legal title, a trustee of the vendee for the payment of the purchase money. Before the lega title passes from the vendor, his remedy is on the contract, to enforce a specific performance of the contract, or, in an action at law. The vendee cannot compel a relinquishment of the legal title, until he clothes himself with equity by the payment of the purchase money."

The first case in Virginia, in which it was expressly decided that the vendor of land, sold and in possession of the vendee, but not conveyed, had a lien on it, so as to secure the payment of the purchase money, was that of Cole against Seott, 2 Wash. Rep., 141. To the same effect are all of the following cases: Hanna vs. Wilson, 3 Gratt, 243; Knisely vs. Williams et als., 3 Gratt, 265; Lewis et als vs. Capertom's ex'or et als, 8 Gratt, 163; Stewart's ex'ors vs. Abbott et al, 9 Gratt, 252; Young vs. Mauck et als., 15 Gratt, 300.

In the case of Lewis et als. vs. Caperton's ex'or et. als.y judge Allen in delivering the opinion of the court, decides that a vendor who retains the title until the purchase money is paid," stands on higher ground than a vendor who, having parted with the legal title, is seeking a court of equity to set up and give effect to the implied lien for the purchase money. Holding the legal title, he is not claiming an equity, and he cannot be required to surrender the legal title until the purchase money is paid, and...