Scott v. Edgar

• Decision Date: 17 May 1901
• Citation: 60 N.E. 468
• Parties: SCOTT v. EDGAR et al.
• Court: Indiana Appellate Court

60 N.E. 468

SCOTT

v.EDGAR et al.¹

Appellate Court of Indiana.

May 17, 1901.

Appeal from circuit court, Rush county; D. A. Myers, Judge.

Action by James R. Scott against Sarah Edgar and others on a note and to enforce a vendor's lien. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.S. L. Innis and Wallace Morgan, for appellant. Frank J. Hall, for appellees.

WILEY, J.

As the only question for decision is the sufficiency of the complaint, we will state the facts averred fully. The complaint avers that on December 19, 1887, appellee James P. Edgar executed his note for $325, payable to appellant, bearing 6 per cent. interest, payable at a bank in this state 13 months and 6 days after date; also that in September, 1886, appellant conveyed to one Peck certain described real estate; that said Peck paid appellant no part of the purchase money therefor; that on and prior to November 9, 1887, said Peck became insolvent; that on said last-named date said Peck brought appellee James Edgar to appellant, and said Edgar proposed to appellant that, in consideration of said appellant releasing said Peck from all liability on account of the purchase of said real estate, said Peck would convey to said James P. Edgar said real estate at and for the price of $2,550, which sum was to be paid to appellant as follows: said Edgar was to turn over and assign to appellant sale notes of the actual value of $1,550, and cause to be conveyed to appellant, by warranty deed, certain real estate owned by appellee Sarah Edgar, who was and is the wife of said James, at and for the agreed price of $1,050; that appellant accepted said proposition; that on the 19th day of November, 1887, said parties met to consummate said agreement; that said James Edgar then informed appellant that he had only $1,175 in solvent sale notes, which he would then turn over, and would pay the residue of the $1,500 by giving him a note for the difference, which he did, and which is the note sued on; that thereupon said Peck, his wife joining, conveyed to appellee Sarah Edgar the real estate which appellant had conveyed to Peck, said conveyance being made to Sarah at the joint request of appellees; that at the same time appellees executed to appellant a warranty deed for the real estate owned by said Sarah in full performance of said agreement. The complaint also avers that the said James Edgar was insolvent when said note was executed, and had so remained ever since. The prayer of the complaint is for a personal judgment against James, and that appellant be declared to have a vendor's lien on the real estate conveyed to appellee Sarah, and that such lien be foreclosed. Appellee Sarah Edgar demurred separately to the complaint, which demurrer was sustained. Appellee James Edgar was defaulted, and judgment rendered against him for the amount due on the note.

Sustaining the demurrer to the complaint is assigned as error. The simple question for decision is, do the facts pleaded entitle appellant to a vendor's lien? It must be remembered that appellant is not, in a strict sense, the vendor. As to the conveyance in the first instance to Peck, he was the vendor, and without question could have enforced his vendor's lien against the land as held by Peck. By a mutual agreement between appellant, Peck, and James P. Edgar, Peck conveyed the land to appellee Sarah, and the purchase money was paid directly to appellant; that is, appellant agreed to accept from James P. Edgar certain sale notes which he held for the value of $1,550, and the conveyance of a tract of land owned by Sarah of the value of $1,050. When the parties met to consummate the deal, James P. Edgar informed appellant that he only had $1,125 in solvent sale notes, and that he would pay the residue by giving him his individual note for $325. This appellant agreed to do. Such note was given and accepted, and was made payable in a bank in this state. If the original agreement had been carried out, and appellant had accepted the $1,550 of sale notes, we are clearly of the opinion that it would have been a waiver of the lien. The case of Haskell v. Scott, 56 Ind. 564, is relied upon by appellee to sustain her theory that by taking the note of James P. Edgar appellant waived his lien. In that case, one Steffey sold a tract of land to Martha E. Haskell, a married woman. A year after such sale there remained, as a balance of the unpaid purchase price, $427, and Steffey refused to make her a deed of conveyance unless said sum was paid. Appellee, who was the father of Mrs. Haskell, agreed with Steffey that he would pay the balance of the purchase money, and gave his note for the amount due. After the note was given, Mrs. Haskell told Scott that if he would pay the note he should have a lien on the land for the amount. He paid the note, and brought suit to enforce the lien as for purchase money. The court said: “It is * * * well settled that the taking of the note of a third person, under such circumstances as appear in this case to have attended the taking of the note of Scott, operates as a waiver of the vendor's lien. The vendor refused to part with his title in reliance upon a vendor's lien, but required the separate obligation of Thomas Scott for payment of the purchase money, upon the faith of which...