Kilbourne v. Wiley
| Decision Date | 05 June 1900 |
| Citation | 124 Mich. 370,83 N.W. 99 |
| Court | Michigan Supreme Court |
| Parties | KILBOURNE v. WILEY et al. |
Appeal from circuit court, Ingham county, in chancery; Rollin H Person, Judge.
Bill by Samuel L. Kilbourne against Washington G. Wiley and others. From a decree in favor of complainant, defendants appeal. Affirmed.
Thomas Cummins & Nichols, for appellants.
S. L Kilbourne (Russell C. Ostrander, of counsel), for appellee.
The record shows the following state of facts: Prior to June, 1893, Frank D. Weller and his mother, Adelia M. Weller, claimed to be the owners of a two-thirds interest in certain lands described in the bill of complaint. The title to the lands was in litigation. They were parties to the litigation. Harry G. Wiley claimed to be the owner of the other one-third interest in the lands. The Wellers were unable to carry on the litigation, and made an arrangement with the complainant, who is a lawyer, to take charge of it. If he established their rights in the land, he was to be paid $1,000, and was to have a lien upon the land until he was paid. The complainant took charge of the litigation, and conducted it to a successful issue. All of the defendants knew of the arrangement between Mr. Kilbourne and the Wellers, and of the rendition by him of the service, and the amount he was to be paid therefor. Possessed of this knowledge, Wiley, for Judson, Wiley & Judson, entered into negotiations for the purchase of the two-thirds interest belonging to the Wellers, and finally bought the same. Pending the negotiations, Mr. Wiley, who conducted them for Judson, Wiley & Judson, informed Mr. Kilbourne they understood exactly what the agreement was between the Wellers and him, and that, if they bought the property, they would buy it subject to his right to be paid out of the property, and would see that his interests were protected. Mr. Wiley afterwards completed these negotiations, and a deed of the property was made, according to his direction, for Judson, Wiley & Judson. As a part of the consideration for the conveyance of the land, it was agreed that Judson, Wiley & Judson would pay the claim Mr. Kilbourne had against the Wellers, and to secure the payment of which they had agreed to give Mr. Kilbourne a mortgage upon the land. After the deed was made, Mr. Wiley assured Mr. Kilbourne they had bought the land subject to the payment of the $1,000 which the Wellers had agreed should be paid to Mr. Kilbourne, and promised to pay him as soon as the decree which had been rendered in the circuit court in favor of the Wellers should become a finality. The $1,000 was not paid, and this proceeding was brought. The complainant filed an amended bill making both the Wellers parties thereto. The Wellers do not contest the claim of complainant, but allowed an order pro confesso to be entered before decree. Mr. Frank D. Weller, who represented his mother as well as himself in the arrangement made with Mr. Kilbourne, was a witness upon the trial of this case. His testimony indicates his desire to have Mr. Kilbourne receive his pay. His testimony substantiates Mr. Kilbourne's claim in nearly all essential particulars. The circuit judge rendered a decree in the cause in favor of complainant for the $1,000 and interest, and gave him a lien upon the two-thirds interest in the land sold by the Wellers to the defendants.
It is the claim of the defendants Judson, Wiley & Judson that there is no privity between the complainant and them; that he cannot assert a vendor's lien, because he was not the owner of the land, and did not make the sale; that there can be no lien, because at the time of the agreement between Weller and Wiley there was no certain amount fixed upon to be paid in any event, nor at any particular time. It is asserted the complainant has mistaken his remedy; that he should have secured a lien upon the land when he made the agreement with Mr. Weller, but, failing in this, he should have attached the land when he knew Mr. Weller was trying to dispose of the land. It is true that upon the cross-examination Mr. Weller says Mr. Wiley did not agree to pay Mr. Kilbourne $1,000, but agreed to settle with him. Another portion of his examination shows Mr. Wiley was informed the claim of Mr. Kilbourne was for $1,000, and that he agreed to pay that claim. It also shows that in making up the aggregate of the consideration to be paid this claim was figured at the sum of $1,000. Mr. Wiley testified that he knew the claim was $1,000, so that, take the record as an entirety, we do not think there can be any reasonable doubt as to the amount which was to be paid.
The question of whether the complainant is in a condition to enforce the agreement and assert a lien upon the real estate presents serious difficulties, but, unless they are insurmountable, the equities of the complainant are so strong they ought not to prevail. It has been repeatedly held that the vendor of real estate has an equitable lien upon it for the purchase money, where no security for its payment has been taken. Carroll v. Van Rensselaer, Har. (Mich.) 225; Dunton v. Outhouse, 64 Mich. 425, 31 N.W. 411. It is also a well-established rule of law that a vendee who has paid prematurely purchase money for real estate has a lien against the vendor analogous to that of a vendor in an opposite case. Payne v. Atterbury, Har. (Mich.) 414. In Bank v. Hastings, 1 Doug. (Mich.) 258, this language is used: 'No principle is now better settled than that the vendee of lands becomes a trustee to the vendor for the purchase money or so much as remains unpaid.
2 Story, Eq. Jur. 463-465. In such a case the trust is implied and arises from what are called 'equitable liens,' of which courts of equity alone take cognizance. Such liens exist independently of any express agreement, and courts of equity enforce them on the principle that a person, having gotten the estate of another, ought not, in conscience, as between them, to be allowed to keep it, and not pay the consideration money. The Roman law declared the lien to exist in natural justice, and this principle, which is now ingrafted in the equity jurisprudence both of England and this country, was borrowed from the civil law. By that law the rule was equally applied to the sale of movable and immovable property. 2 Story, Eq. Jur. 408.' Sears v. Smith, 2 Mich. 244. In Huxley v. Rice, 40 Mich. 73, this language is used: See, also, Miller v. Aldrich, 31 Mich. 408. In the case of Tyson v. Railway Co. (C. C.) 15 F. 763, it is said: ...
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