
    O’Connor v. Smith.
    O’C. purchased and paid for certain lands, and had the same conveyed to S. to hold as his trustee. While S. held the legal title, he made advances and performed services for O’C., and, by agreement, S. was to hold the legal title to the lands until the advances and services were paid for.
    Afterwards the parties agreed upon the amount O’C. owed S. for advances and services, and at the request of O’C., S. conveyed the lands to him and received the check of a third person on a bank for the amount agreed upon.
    This check was not paid, but was immediately returned and surrendered to the drawer. The amount due S. for services and advances was not paid, and S. had no written agreement for its payment or acknowledgment of the indebtedness.
    
      Held: 1. That no vendor’s lien arose in favor of S. on the conveyance of the lands to O’C.
    2. That an action to enforce the claim of S. for services and advances was limited to six years.
    
      Error to the District Court- of Hamilton County;
    The defendant in error filed his petition in the superior court of Cincinnati, on the 11th day of October, 1879, against the plaintiff in error, in which -he alleged tlie following facts:
    That in the year 1858, the plaintiff and defendant had mutual dealings, and the defendant had paid the purchase price of certain lands described in the petition, and caused the persons having the legal title to said lands to convey the same to the plaintiff; that the plaintiff accepted said conveyance, and held said lands in trust for the defendant until the 5th day of September, 1871; that during the time the plaintiff held said lands in trust for the defendant, he made advances and performed services for the defendant; that it was agreed between the plaintiff and defendant that the plaintiff should hold said lands until the defendant should pay him for said advances and services, as trustee, and that he should have a lien on the lands for the same; that on the 5th day of September, 1871, the plaintiff and defendant agreed that the amount due to the plaintiff for said advances and services was the sum of fifteen hundred dollars, and the defendant then agreed to pay that sum to the plaintiff; that the plaintiff then, at the request of the defendant, conveyed said lands to him; that the business of settlement and payment was’conducted by and between the plaintiff and one A. Shouter, as the agent of the defendant y that said Shouter, on receiving the deed of the plaintiff conveying the lands to the defendant, gave to plaintiff his check on a bank for the fifteen hundred dollars agreed upon as the amount due the plaintiff from the defendant; that the plaintiff accepted the check,- and on the next day after its date presented it for payment. The check was not paid, whereupon the plaintiff returned it to said Shouter.
    Upon the facts above alleged the plaintiff asked for judgment against the defendant for fifteen hundred dollars, and asks also that the lands described in the petition be sold, and the amount due the plaintiff be paid out of the money raised by such sale. The defendant demurred to the petition, and the superior court sustained the demurrer. The plaintiff not wishing to amend his petition, the court gave judgment for the defendant.
    This judgment was reversed by the district court; and to reverse the judgment of the district court, a petition in error is filed here.
    
      T. A. O'Connor, Grlidden 8? Burgoyne, for plaintiff in error.
    
      Samuel T. Crawford, for defendant in error.
   McCauley, J.

Counsel for Smith, the plaintiff below, claim, upon the facts stated in the petition, that he was entitled to a vendor’s lien, and that such a lien between the parties is a continuing and subsisting trust, and not within the operation of the statute of limitations.

Smith held the title of the lands as trustee for O’Connor, and when he made his deed to O'Connor he merely executed the trust.

A vendor’s lien arises only upon a sale of lands, and results from the equity, that while the vendee holds the lands with the purchase money unpaid, he holds subject to a lien for its security and payment. No sale is alleged here, and no state of fact out of which a vendor’s lien could arise. Smith held the legal title as security for his advances and services, and when he eonvetyed to O’Connor, without receiving the money due him, O’Connor held the land discharged of any lien whatever. No lien could arise upon the agreement for a lien stated in the petition. Upon Ihe failure of O’Connor to pay Smith the amount agreed upon to be paid at the time of the conveyance of the land, Smith could have made this debt a charge or lien upon the lands, by a proper action against O'Connor for that purpose, and this was the only way in which the lands could have been charged with the debt due to Smith.

Smith not having a vendor’s lien, the question whether a vendor’s Hen is a continuing and subsisting trust, and so not within tbe operation of the statute of -limitations, becomes of no consequence.

Smith had only an equity in -the lands arising from tbe manner of their dealing in reference to them, to subject, them by action to the payment of the money due him.

There is no averment in the petition, that he had any agreement, contract, or promise in writing, for the amount due him from O’Connor. It was, then, money due upon a contract not in writing; and, as a claim for money was limited to six years, as a claim for relief against the constructive fraud of- O'Connor in failing to pay the amount due Smith at the time of the conveyance, it was probably limited to four years. The action below was not commenced until more than eight years after the conveyance to O’Con-nor and his failure to pay the amount owing to Smith ; and whether the claim was sought to be enforced as a claim for money, or for equitable relief, the remedy was not sought within the time limited to either of such actions.

Judgment of district court reversed, and that of superior court affirmed.  