Smith v. Allen

• Decision Date: 06 October 1897
• Citation: 50 P. 783,18 Wash. 1
• Parties: SMITH ET AL. v. ALLEN ET AL.
• Court: Washington Supreme Court

50 P. 783

18 Wash. 1

SMITH ET AL. v. ALLEN ET AL.

Supreme Court of Washington

October 6, 1897

Appeal from superior court, Clallam county; James G. McClinton Judge.

Action by R. T. Smith and Clara A. Smith against J. H. Allen, Lucy A. Allen, and others. Judgment for plaintiffs. Defendants appeal. Reversed.

Jay C Allen, for appellants.

Geo. C Hatch, for respondents.

REAVIS, J.

Action instituted by plaintiffs (respondents) against defendants (appellants) to enforce a vendor's lien upon certain real property in Clallam county. In substance, the complaint is that respondents sold and conveyed by absolute deed to appellants 80 acres of land, situated in Clallam county, and that defendants promised and agreed to pay the sum of $1,000 in installments from time to time, as they were able, and as plaintiffs needed the same; that the agreement to purchase was in writing; and that defendants paid on the contract the sum of $635.62, and refused to pay the balance. The complaint concludes with a prayer for judgment against the defendants for the balance of the sum alleged to be due on the purchase price of the land, and that it be declared a first lien on the premises, as a vendor's lien, and that the specified premises be sold to satisfy the same.

Defendants at the time of the commencement of the action were all residents of King county, and the defendants Allen each appeared and demurred to the complaint, and filed a motion to change the venue to King county. Sufficient affidavits showing the residence of all the defendants in King county and also affidavits of merits, were at the same time filed. The superior court denied the motion for a change of venue on the ground that the suit was one to enforce a vendor's lien for balance due of the purchase price of the premises conveyed by respondents to defendant Allen. After the demurrer was overruled, the defendants answered, and a trial was had, and judgment for plaintiffs, with a decree establishing a vendor's lien, and ordering a sale of the premises before mentioned. The superior court evidently overruled the motion for a change of venue on the ground that the action was local, because of the enforcement of a vendor's lien. Sections 158, 159, 161, 2 Hill's Code, control the venue of the action. The defendants having at the proper time shown that they were residents of King county, the motion to change the venue was not addressed to the discretion of the court, but was a matter of right with the defendants.

The question of jurisdiction to try the action is determined, not by the remedy requested, but by what the facts alleged in the complaint entitle plaintiffs to receive; and thus the question presented for decision here is whether real property which has been conveyed by absolute deed is subject to a vendor's lien for unpaid purchase money, where no such lien has been reserved by the deed or by any agreement between the parties. No case in this state has been called to our attention where the question has necessarily arisen and been decided heretofore. It is true, the expression "vendor's lien" has been used perhaps a number of times by the court, but where the lien itself, as the foundation of a right, was not necessarily involved. The policy deduced from the uniform course of legislation in this state relative to conveyances of real estate and the title thereto has been to enlarge the scope of the recordation of all instruments affecting real estate. Only conveyances by deed are recognized, and incumbrances are required to be placed of record. This is true of agreements subjecting real property to voluntary liens or incumbrances, as in the case of mortgages, and is also required in that large class of claims of lien which are authorized by statute. Evidently the policy of our registry acts is against secret liens. The vendor's lien, originally, as recognized in England, was devised by courts of equity to enforce the rights of a grantor of real property against the grantee, who might remain in possession after the execution of an absolute deed and yet refuse to pay the purchase price, or any balance remaining due thereon. The inability to subject land by process of law to execution for a simple-contract debt was recognized by the English chancellors as requiring a remedy. Hence the invention of a lien in favor of the vendor for the purchase price promised to be paid for land. The vendor's lien, at the time it originated and was enforced, was also less inconvenient and injurious against innocent purchasers or incumbrancers of land in England than in this country. The general policy of the law in England did not facilitate commerce in land, as here. The law there was rather favorable towards holding landed estates together, and did not assume to make transfers easy. Thus real estate was usually improved and regularly cultivated, the ownership long established and well known, and the transfers comparatively few, and usually better known than among our people. Here land is essentially a subject of trade and commerce, transfers are easy and simple, and purchasers and incumbrancers look to the record for their information. The vendor's lien in England seems to have been involved in some uncertainty, and its limitations not very well understood, until the case of Mackreth v. Symmons, 15 Ves. 329, decided in 1808 by Lord Eldon. In this case the learned chancellor thought "the doctrine is probably derived from the civil law as to goods." The case, however, reviews the doctrine, and the source of its origin, and the reasons and authorities by which it is supported. The final grounds upon which it has been rested are natural equity, the supposed intention of the parties, and a trust arising out of the unconscientiousness of the vendee's holding the land without paying the...