Irvine v. Campbell

• Decision Date: 18 September 1813
• Parties: IRVINE and others v. CAMPBELL.
• Court: Pennsylvania Supreme Court

6 Binn. 118

IRVINE and others v. CAMPBELL.

Supreme Court of Pennsylvania.

September 18, 1813

IN ERROR.

The seller of land, although he conveys it, retains an equitable lien against the purchaser, and all claiming under him, with notice that the purchase money is unpaid.

Hence, if by the deed of conveyance, or other instrument transferring the title, it appears that the time for paying a part of the purchase money, has not yet arrived a purchaser under that title at sheriff's sale or otherwise is answerable for all that by the terms of the instrument was not due at the date of the purchase. But if by a distinct instrument between the original parties, the land is pledged for the whole purchase money due as well as not due, a purchaser is not bound by this unless duly recorded.

THIS was an ejectment in the Common Pleas of Venango, by Charles Campbell the plaintiff below.

Upon the trial of the cause, the facts were these: An improvement was made in the year 1796 upon the land in question, which lay west of the Allegheny, for the use of John Field; and a settlement was commenced at that time by virtue of the act of the 3d April 1792, and continued up to 21st January 1802. On that day Field sold to Campbell, the purchase money to the Commonwealth not having been paid, and Campbell was of course entitled to a patent, on having an official survey made and returned, and paying the purchase money. On the 29th August 1803 Campbell sold by an instrument of writing, and conveyed his right to William Milford for 2,400 dollars, of which 800 dollars were to be paid in one year from the date, and the residue in yearly payments of 300 dollars each until the whole should be paid. Milford was to take out the patent in his own name; and Campbell covenanted that the improvement right was good. This writing was entitled an Article of Agreement, and contained a covenant that each party would upon reasonable request give to the other, " any other or further instrument of writing agreeable to law, or which should be necessary for the security of either party." Immediately under this writing, and on the same paper, was another writing executed by Milford under hand and seal, by which he agreed that no title was to vest in him, till the whole purchase money was paid. This last writing bore date in the year 1805, without mentioning day or month, but in fact was executed in the month of November 1806. Neither of these writings was recorded till the 16th October 1809.

David Irvine, one of the defendants, purchased the land at sheriff's sale on the 21st September 1808, under a judgment in favour of Jackson assignee of M'Candles, against Milford, entered the 25th March 1808. There had been a judgment for Joseph Taylor and Co. against Milford at September term 1806, part of which was paid, and the remainder satisfied by the acceptance of another judgment entered for Taylor and Co. against Milford and one Robert Orr, at September term 1807. This last judgment Irvine paid after he had made the purchase at the sheriff's sale.

The question below, was whether Campbell had a lien on the land for all that part of his purchase money which remained unpaid; and the presiding judge gave it in charge to the jury, that Campbell had such a lien, and that the purchaser at...