Palmer v. Deslauriers

• Decision Date: 15 June 1896
• Citation: 34 A. 1108,19 R.I. 505
• Parties: PALMER v. DESLAURIERS et al.
• Court: Rhode Island Supreme Court

34 A. 1108

19 R.I. 505

PALMER

v. DESLAURIERS et al.

Supreme Court of Rhode Island.

June 15, 1896.

Bill by Amos D. Palmer against Alphonse Deslauriers and others to enforce a vendor's lien. Demurrer to the bill. Overruled.

McGuinness & Doran and James, Wm. R. & Theodore P. Tillinghast, for complainant.

Bassett & Mitchell, for respondents.

MATTESON, C. J. We do not think that the bill can be sustained as a bill to enforce a vendor's lien. The taking of the mortgage on the land for $2,000 was an implied waiver of such a lien for the remaining $3,000. Brown v. Gilman, 4 Wheat. 250, 290, 291; Pish v. Howland, 1 Paige, 20, 30, 31; Phillips v. Saunderson, 1 Sniedes & M. Ch. 462, 465; note to Mackreth v. Symmons, 1 White & T. Lead. Cas. Eq. (Hare & Wallace's notes) 486.

But the complainant contends that the conveyance of the land to Mrs. Young created an equitable debt against her, in his favor, for the $3,000 (Chafee v. Makor, 17 R. I. 739, 742, 24 Atl 773; Dean v. Rounds, 18 R. 1. 436-439, 27 Atl. 515, and 28 Atl. 802); that inasmuch as the debt is an equitable debt, and she, therefore, cannot be sued at law, as well as by reason of the fraudulent collusion between her and Deslauriers, averred in the bill, he is entitled to maintain this suit (Bank v. Paine, 13 R. I. 592; Ginn v. Brown, 14 R. I. 524; Gardner v. Gardner, 17 R. I. 751, 24 Atl. 785; Elliott v. Lawhead, 43 Ohio St. 171; 2 Beach, Mod. Eq. Jur. § 894). These points, however, have not been discussed in the respondents' brief, and can be more intelligently considered when the facts are more fully before us. Without passing on them, therefore, and with a view to a fuller presentation of the case after the answer has been filed and the proofs have been taken, we overrule the demurrer.