Smith v. Mills

• Decision Date: 16 June 1896
• Docket Number: 17,650
• Citation: 44 N.E. 362,145 Ind. 334
• Parties: Smith et al. v. Mills et al
• Court: Indiana Supreme Court

44 N.E. 362

145 Ind. 334

Smith et al. v. Mills et al

No. 17,650

Supreme Court of Indiana

June 16, 1896

Original Opinion of April 14, 1896, Reported at: 145 Ind 334.

OPINION

Hackney, J.

Counsel for appellant has presented an able argument in support of the petition for a rehearing, urging that we were in error in holding that Mrs. Smith occupied the relation of vendee to Mills & Small, when they had paid no part of the purchase-price to Allender, and when, as claimed for her they held no equity in the property at the time it was conveyed by Allender to her. It was not our purpose, as supposed by counsel, to place our holding upon the ground that Mills & Small could have enforced specific performance, under their contract with Allender, without complying with the terms of the contract on their part. We understood counsel to concede that they could have enforced their contract, upon compliance with such terms and we employed that concession to demonstrate the existence, in the appellees, of an equity in the property. If, however, it were error to hold that Mills & Small, before the conveyance held an equitable estate in the property, they not then having paid the agreed consideration to Allender, there is little room for the contention that, having paid the consideration and having stood in the relation of vendor to Smith, while Allender was but Smith's grantor, who looked alone to, and received from and through the appellees the only consideration paid to him, that appellees, by the entire transaction, were not the equitable vendors of Mrs. Smith.

There may be a clear distinction between a grantor and a vendor, and this transaction illustrates the distinction. As said in Russell v. Watt, Admr., 41 Miss. 602, 93 Am. Dec. 270: "A grantor is one who gives, bestows, or concedes a thing, and in legal parlance is understood to be the party who makes and executes a deed or conveyance. A vendor is a seller; a person who disposes of a thing for money." A vendor's lien may be enforced by one who is not a grantor. Russell v. Watt, supra; Holloway v. Ellis, 25 Miss. 103; Stewart v. Hutton, 26 Ky. 178, 3 J. J. Marsh. (Ky.) 178; Ligon v. Alexander, 30 Ky. 288, 7 J.J. Marsh. 288; Davis v. Pearson, 44 Miss. 508; Anderson v. Spencer, 51 Miss. 869.

In Russell v. Watt, supra, Mrs Russell claimed to be the owner by gift, but without a deed, for the land in question. She sold the land and procured a deed to be made to her vendee from the...