Opinion
(June Term, 1851.)
A vendor who has parted with his title to land, has no equitable lien on the land for the purchase money.
CAUSE transmitted by consent to the Supreme Court from the Court of Equity of CUMBERLAND, at Spring Term, 1851.
Strange for the plaintiff.
W. Winslow for the defendant.
In 1842 the plaintiff sold to the defendant Mason a piece of land in fee for $700, payable in three annual installments, for which the purchaser gave his three promissory notes. In a few months afterwards the plaintiff let Mason into possession and made him a deed, and the latter then agreed to give new notes with sureties for the price in some short time. In December, 1842, and March, 1843, Mason made payments to the amount of nearly $200, on the first installment. But he never gave new notes; and in May, 1843, he sold the premises to the other defendant and conveyed them to him. In July following this bill was filed, charging the insolvency of Mason, and that McCormick was fully informed of the terms of the agreement between the plaintiff and Mason, and knew, at the time he purchased, that Mason had not paid the purchase money, nor given notes with sureties for it; and praying a declaration, that the plaintiff is entitled to a lien on the land in the hands of McCormick for the balance due to the plaintiff therefor and for a decree in default of payment by one of the defendants, to have the money raised out of the land and for general relief.
It is not necessary to consider the answers, (181) as, upon the authority of Womble v. Battle, 38 N.C. 182, the bill is insufficient upon its face, as far as it seeks to set up an equitable lien for the purchase money. This bill was filed before that decision; but in that aspect it is fully answered by it. The counsel, however, contended that there were circumstances to establish a precontract or collusion between the defendants, to the effect, that Mason should make the purchase for the purpose of conveying to McCormick at a less price, so that thereby McCormick might get the premises at an under value and the plaintiff defeated of a large part of the price by reason of Macon's insolvency. But, without undertaking to determine the effect of such a state of facts, if existing, the Court is obliged to say, that the supposed facts are not only not established by proof, but they are not sufficiently alleged in the bill to authorize a declaration of them, nor a decree on them.
PER CURIAM. Bill dismissed with costs.
Cited: Smith v. High, 85 N.C. 94; White v. Jones, 92 N.C. 389; Peek v. Culberson, 104 N.C. 426; Shingle Mills v. Sanderson, 161 N.C. 454.
Vide: Simmons v. Spruill, 56 N.C. 9.
(182)