Smith v. Mills
| Decision Date | 14 April 1896 |
| Docket Number | 17,650 |
| Citation | 43 N.E. 564,145 Ind. 334 |
| Parties | Smith et al. v. Mills et al |
| Court | Indiana Supreme Court |
Rehearing Denied June 16, 1896, Reported at: 145 Ind. 334 at 342.
From the Marion Superior Court.
Affirmed.
N. M Taylor, for appellant.
I. L Bloomer, for appellee.
On the 28th day of October, 1892, Charles E. Allender held the legal title to a house and lot in West Indianapolis, of which William J. Smith desired to become the purchaser, and sought the appellees, Mills & Small, with that object in view. On that day the following writing was executed between said Mills & Small and said Smith:
Thereafter the following writing was executed between Mills & Small and said Allender:
After the execution of said two writings, and on the 29th day of October, 1892, William J. Smith executed his several notes for $ 153.00 to Mills & Small, and otherwise executed his part of the proposition so made by him, and Mills & Small procured Allender and wife to execute to Hester A. Smith, wife of William J. Smith, a deed of general warranty for said lot. Said deed being so executed, by the oral agreement of William J. Smith and Mills & Small, and in and by said deed the grantee assumed, expressly, the payment of said two mortgages.
Subsequently, Mills & Small paid to Allender $ 26.00 in money and made over to him the two notes of Bradford and Hansing, endorsed by Smith, for $ 24.00. The notes of William J. Smith, for $ 153.00 were assigned in blank to one Lipsey, who thereafter assigned them by endorsement to said Mills & Small, "without recourse" on such assignor.
Mills & Small instituted this suit upon said notes for $ 153.00 against William J. Smith, and to enforce against said lot a vendor's lien as to Hester A. Smith. Upon the issues found below the court gave personal judgment against William J. Smith, and declared a vendor's lien as to the appellant, Hester A Smith. The only questions here presented are by Hester A. Smith, and they relate to the right of Mills & Small to maintain such lien.
It is first insisted, by counsel for the appellants, that Mills & Small, having paid nothing to Allender, at the time of the conveyance to Mrs. Smith, were not equitable owners of the lot and could not claim a vendor's lien. It is expressly conceded that they held such an obligation of Allender that they could have enforced specific performance, but this, it is said, does not constitute an equitable title. The cases of Johns v. Sewell, 33 Ind. 1; Dwenger v. Branigan, 95 Ind. 221, and Barrett v. Lewis, 106 Ind. 120, 5 N.E. 910, are cited in support of this insistence. These cases hold, as we understand them, that one paying the purchase-money, upon a contract to convey to him or another, may maintain a lien as a vendor, but this is far from deciding that one holding a contract for a conveyance, upon terms to be performed after conveyance, must perform before conveyance to be enabled to sell his beneficial interest, the equitable title, and maintain a vendor's lien for the selling price. The effect of the writing between Allender and the appellees is conceded to be sufficient, upon its face, to create an equity in favor of the appellees, not only to enable them to have enforced a conveyance to them of the legal title, but also to constitute them the equitable vendors upon a conveyance by Allender to Mrs. Smith, by the mutual understanding of all the parties, if they had theretofore paid Allender the purchase-price.
Presuming, as we must, that the contract between Allender and the appellees was valid and, as the evidence discloses, its terms were complied with by the appellees, we can see no reason for holding that Mrs. Smith is not their equitable vendee. Part of the agreed consideration for Allender's promise to the appellees was their promise to assume certain mortgages and prepayment of the small difference was not more essential than that they should have tendered their assumption as a prerequisite to the execution of his deed to them. The deed to Mrs. Smith executed the contract between Allender and the appellees, and she cannot say that their equity should be defeated because they had not prepaid the purchase-money, no more than she could complain that she got no title because the contract between Allender and the appellees was in parol, if it had not been in writing.
A disputed point, upon the evidence, was as to whether the appellees, at the time of their contract with and the execution of the deed to Mrs. Smith, were acting as the agents of Allender to make the sale, or were acting for themselves. We cannot pass upon the conflict in the evidence, and, therefore, find it unnecessary that we should determine whether parol evidence upon that subject was a contradiction of the written contract between them, or whether the appellant may take advantage of the fact that appellees' hands may have been soiled by taking an unfair advantage of their relations to their employer, Allender.
Nor is it material that appellees failed to make proof of the allegation in their pleadings that the conveyance to Mrs. Smith was designed by her and her husband to defraud the appellees in the collection of the purchase-money. Their case, it is conceded, was as strong without as with such allegations, and, in our opinion, the same is true upon the evidence.
The remaining proposition of the appellant is, that if a lien had existed in...
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