
    Rebecca Rhea, plaintiff in error, v. Charles W. Reynolds and Emma E. Reynolds, defendant in error.
    1. Pleadings: JUDeamíT. Rliea commenced an action against R. and wife to recover a judgment against R., upon a promissory-note and to enforce a vendors lien upon lands conveyed to the wife of R. The answer admitted the execution and delivery of the note, but denied the existence of the lien. The court found no lien existed and dismissed the action. Held, that Rhea was entitled upon the pleadings to judgment against R. for the amount of the note.
    2. -:--. Where all the relief prayed for cannot be granted, it is the duty of the court to grant such relief as the established facts will warrant, whether it be legal or equitable.
    3. Conveyance: lien fob unpaid purchase money. A grantor who convoys land by an absolute deed has no lien for such portion of the purchase money as remains unpaid. But such liens may be created by contract, and will exist where the grantor has only made a bond for a deed, or a contract to convey.
    Error to the district court for Butler county. Tried below before Post, J. The opinion states the case.
    
      Walter J. Lamb and Samuel J. Tuttle, for plaintiff in error.
    1. Having received a deed to tbe land from the plaintiff in error, tbe defendants are estopped to assert that she bad no title to convey in order to defeat a recovery on said note given for tbe purchase price of said lands. Finclley v. Horner, 9 Neb., 537. Walker v. Sedgwick, 8 Cal., 398. Bigelow on Estoppel, 1st. ed. 414, 415.
    2. The court should have given plaintiff judgment on tbe note. McNeady v. Hyde, 47 Cal., 481. Davis v. Lambertscn, 56 Barb., 480. Hudson v. Garryl, 44 N. Y., 553. Parker v. Laney, 58 N. Y., 469. Stephens v Magor, 25 Wis., 533. Wells Res Adjudicata, sec. 455. Blachinton v. Blachinton, 113 Mass., 231. And in addition thereto-a decree that such judgment constituted a lien on the lands in question for the unpaid purchase money there-. for. It is a rule of almost universal application in this country and England, that the vendor of real estate has an equitable lien upon the estate sold for the unpaid purchase money as between him and the vendee, or those deriving title through such vendee with notice, in all eases, unless there is an express or an implied agreement to waive such lien. Dorsey v. Hall, 7 Neb., 460. Fishv. Howland, 1 Paige Ch., 26. Baum v. Grigsby, 21 Cal., 176. Wilson v. Lyon, 51 111,, 168. McDole v. Purdy, 23 Iowá, 278. 2 Story’s Equity, sec. 1,226, and authorities cited. Smith v. Rowland-, 13 Kan., 245.
    
      M, H. Sessions, for defendants in error.
    1. There is no proof in the case showing the insolvency of Charles W. Reynolds, the maker of the note. For all that appears, the presumption is that the plaintiff could at any time have collected the note from the maker. Under the facts as they exist in this case, the plaintiff should be compelled to exhaust her remedy upon her note before she could resort to the equitable relief .here invoked, At least, she should be required to prove the insolvency of the maker in this action, as a condition precedent to granting the relief asked for, Scott v. Craioforcl, 12 Ind., 411. Eyler v. Crabbs, 2 Md., 137. Pratt v. Van Wyclc, 6 Gill & Johnson, 495. Richardson v. Stellinger, 12 Gill & Johnson, 477. Garson v. Greene, 1 John Ch., 308. Bottuf v. Conner, 1 Blackf., 288. Roper v. McCook, 7 Ala., 318.
    2. There is no such thing as a vendor’s lien in this state upon an absolute conveyance of real estate by deed, for such portion of the purchase money as may remain unpaid. Echninister v, Higgins, 6 Neb., 265. Kauffitt v. Boiuer, 7 Sergt & Rawle, 64. Heister v. Greene, 48 Penn. State, 96. Philbrook v. Delano, 29 Maine, 410. If the doctrine was in force, still the plaintiff would not be entitled to the lien, having waived it. Richards v. Learning, ■27 111., 432. Gilman v. Brown, 1 Mason, 216. Hare v. Van Deusen, 32 Barb., 93. Selby v. Stanley, 4 Minn., 75. Parker v. Sewell, 24 Texas, 241. Cowl r. Varnum, 37 111., 181. Williams r. Reas, 26 Wis., 540. Gviffin v. Blanchar, 17 Cal., 71. IVilliams v. Roberts, 5 Ohio, 35. Boynton v. Champlin, 42 111., 57.
   Maxwell, Ch. J,

In the year 1879 Charles W. Reynolds made and delivered to the plaintiff a promissory note, of which the following is a copy:

“ Lincoln, Nebraska, October 14, 1879.
January 1st after date for value received, I promise to pay to the order of Rebecca A. Rhea, four hundred dollars, at State National Bank, with interest at ten peícent. per annum from maturity until paid, together with a sum equal to ten per cent, of said amount as attorneys fee if action is brought on this note, or on the mortgage given to secure the same, or if the same is not paid when due. Charles W. Reynolds.”

It appears from the record that, prior to the time the note was given, the plaintiff had commenced an action of ejectment against the defendants to recover the possession of certain real estate in Butler county, and that the note in question and $75.00 in cash were given to compromise that suit, the plaintiff executing a quit claim deed for the premises in controversy to Emma E. Reynolds, the wife of the maker of the note. ■ The prayer of the petition is for a personal judgment for $400.00, interest, and attorneys fees against Reynolds, and to enforce a vendors lien upon the premises conveyed. Judgment was rendered in the district court in favor of the defendants and dismissing the action.. The plaintiff brings the cause into this court by petition in error.

The judgment of the court below is as follows: “ In consideration whereof the court on this 10th day of February, 1881, being the 3rd day of the January term, 1881, does find upon the issues joined in favor of the defendants. The court further finds that the plaintiff is not entitled to a vendors lien as prayed. Plaintiff now moves for a personal judgment against Chas. W. Reynolds upon the pleadings, which motion the court overrules. Whereupon it is considered and adjudged that the defendants go hence without day, and that the plaintiff take nothing by her writ,”

The petition sets forth the making and delivery of the note by Chas. W, Reynolds, that the plaintiff is the owner thereof, that it is now due and payable, and that no part of the same has been paid. The answer of the defendants states: “ That on or about 'the 14th day of October, 1879, and while said suit was pending for trial in said court, the defendant, Chas. W. Reynolds, met the plaintiff in the city of Lincoln, and said suit was then and there compromised, and settled upon the following terms and condition, to-wit: The plaintiff agreeing that if the said Chas. W. Reynolds would pay her seventy-five dollars in money, and give his note for $400.00, payable on the 1st day of January, 1880, then in consideration of the same she would give a quit claim deed to the defendant, Emma E, Reynolds, of all her pretended claim, right, title or interest in and to said land and real estate, and that she would not ask or claim any other or further security for the payment of said four hundred dollars than the individual note of the said Chas. W. Reynolds. And thereupon the said parties did settle said suit, and the said Chas, W. Reynolds did pay to the said plaintiff the sum of $75.00, and the said Charles W. Reynolds did then and there execute and deliver to this plaintiff his promissory note for four hundred dollars, being the same note referred to in plaintiff’s petition. In consideration whereof the said plaintiff did then and there execute a quit claim deed to the said premises to said defendant, Emma E. Beynolds, and deliver the same, being the same referred to by plaintiff in her petition as the one she made and executed, and did then and there in consideration of the-foregoing agree to waive, and did waive all liens upon said lands and real estate so conveyed, of every nature and kind whatsoever for the security of said note,” etc.

Upon an answer like this, which admits the execution and delivery of the note, and every fact which would entitle the plaintiff to recover a judgment against Beynolds for the amount of the note, it is contended on behalf of the defendants that there can be no recovery, because there is but one count or cause of action stated in the petition, the object of which is to enforce a vendors lien. It is true one of the main objects of the petition is to enforce a vendors lien; but this is not the only one. Under the code all that is necessary is to state the-facts in a petition, and if the plaintiff is entitled to any of the relief prayed for, that will be granted, although it may not include all, or indeed any considerable portion of the relief sought. Johnson v. Phifer, 6 Neb., 401. Roberts v. Swearingen, 8 Id., 363. The very object of the code is to abolish the technical rules that prevailed previous to its existence, by which the rights of parties were frequently sacrificed. Under the code there is but one form of action, and that consists of a statement of the facts constituting the cause of action. All distinctions between actions at law and suits in equity are abolished except such as inhere in the nature of the case. And it is the duty of the court to endeavor to protect and enforce-the rights of the parties and permit no mere technicality to defeat them. The plaintiff was entitled, under the pleadings, to a judgment against Charles W. Beynoldsfor the amount of the note, interest and costs.

The quit claim deed from the plaintiff to Emma E. Reynolds was' not introduced in evidence, and we are therefore unable to determine its effect. We adhere to our decision in Edminster v. Higgins, 6 Neb., 265, that a vendor of real estate, upon an actual conveyance thereof by deed, has no lien upon the land so conveyed for such portion of the purchase money as remains unpaid. The reason is, the grantor has parted absolutely 'with all claims and demands upon the land; and cannot be allowed to enforce special demands against it not arising by contract or operation of law. Bui a vendors lien may be created by the contract of the parties at the time of the sale and conveyance of the land, and will exist where the purchase money or a part thereof remains unpaid, if the vendor has only executed a bond or contract to convey. Stevens v. Chadwick, 10 Kas., 406. Smith v. Rowland, 13 Id,, 245. But as the deed is not before us we are unable to determine its character. The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and Remanded,  