
    *Brawley v. Catron and Others.
    July, 1837,
    Lewisburg.
    (Absent Cabell, J.)
    Saleof Realty — Vendor’s Lien — Maintenance of Vendor. —By agreement between vendor and vendee of land, the vendee engages, in consideration of the land, to pay. off certain debts of the vendor, and to support him during his life, and two of his daughters until they shall be married ; vendee accordingly pays off the debts : Held, the agreement for supporting the vendor and his daughters constitutes no lien in equity upon the land.
    By deed dated the 23d of October 1829, John Brawley conveyed to A. S. Eulton a tract of land containing 279 acres, situate in Wythe county, upon trust for the purpose of securing to David Pierce a debt of 419 dollars, with interest from the date of the deed. By another deed dated the 19th of Hay 1832, Brawley barg-ained, sold and conveyed the same tract of land to John Catron, for the consideration of 700 dollars, expressed in the deed to have been paid to him by Catron.
    In July 1833, Brawley exhibited a bill in the circuit superiour court of law and chancery for Wythe county, against the widow, heirs and administrator of Catron, who was then dead. The bill recited the execution of the trust deed made to secure the debt due to Pierce. And then it proceeded to state, that in 1832 the complainant was arrested under two writs of capias ad sat-isfaciendum, issued at the suit of one Thombrough, for debts amounting, with the interest and costs, to about 100 dollars. That while complainant was in prison under those writs, Catron, who was his son in law, executed to Pierce his own note, with John Jackson as his surety, for the amount then due on the deed of trust, and by that means obtained the benefit of said deed. That complainant, being unable to satisfy Thombrough’s executions, was compelled to deliver in a schedule of *his property, and take the benefit of the act for the relief of insolvent debtors; the amount of property contained in the schedule, besides the land, being about 1000 dollars. That sometime after complainant had been so discharged from jail, Catron required the trustee to advertise and sell the land, and the trustee did advertise the same accordingly: but on the day appointed for the sale, Catron proposed to complainant, that if he would convey the land to him, and give him the benefit of the property contained in the schedule, he (Catron) would discharge the claim under the trust deed, pay Thombrough’s executions, settle two other debts of complainant due to other persons, amounting to about 120 dollars, and discharge a further debt of 60 dollars which complainant owed to John Jackson; and that he would support and maintain the complainant during his life, in a comfortable manner, and two unmarried daughters of the complainant until they should marry. That complainant acceded to the proposition, and conveyed the iand to Catron, and gave him the benefit of the property contained in the schedule. That there was an omission to state this contract in the deed to Catron; but he never, during his life, denied the existence of such contract. That the executions in favour of Thombrough had been discharged, and the other claims satisfied by Catron, by taking up the obligations of complainant, and executing his own in their place. That during Catron’s life, complainant had no reason for dissatisfaction in respect to the treatment and support of himself and his daughters; but now that Catron was dead, complainant had no assurance that such support and maintenance would be continued ; and it was doubtful whether the estate would prove solvent. Wherefore the bill prayed that the widow, heirs and administrator of Catron might be made defendants, and compelled to answer the allegations thereof; that the court would either set aside the contract altogether, and restore *to complainant all his property and land, or that the heirs and representatives of Catron might be compelled to give full assurance that they would maintain and support complainant and his daughters according to the agreement; and general relief.
    The heirs and the administrator of Ca-tron answered severally, disclaiming all knowledge of the alleged contract between Catron and the complainant, and calling for proof thereof. The widow never answered the bill.
    In June 1836, Brawley filed an amended and supplemental bill, in which he charged, that the transaction between David Pierce, Catron and John Jackson, by which Catron and Jackson became bound for complainant’s debt to Pierce, secured by the trust deed, was entered into without the knowledge or consent of complainant, and that Jackson’s subsequent payment of the money to Pierce created no specific Hen on the land, even in the hands of Catron or his heirs, much less could it operate to destroy complainant’s rights: that if the contract between Catron and the complainant should be rescinded, complainant would be bound to refund to Jackson the monej' he had paid; but if the contract were not rescinded, then Jackson’s demand would be the proper debt of Catron, and should be postponed to complainant’s claim on the land. The bill alleged, that in September 1834, Jackson had obtained a decree in the circuit superiour court of Wythe county, for the sale of the said land to satisfy his claim against Catron, and at the sale made under that decree had himself become the purchaser of the land. Wherefore the bill prayed that Jackson might be made a party defendant thereto, as well as to the original bill, and be compelled to answer the same on oath; that the relief asked in the original bill might be granted to complainant, and such other relief against Jackson as might be just.
    The decree referred to in the last mentioned bill was exhibited therewith. It appeared by that decree, that *Jackson’s demand against Catron was for the amount of two notes, one for the sum of 428 dollars 80 cents, the other for the sum of 69 dollars 26 cents, with interest.
    Jackson answered, that he became bound as the surety of Catron to Pierce, for the debt secured by Brawley’s trust deed, with the consent of Brawley, who was fully cognizant of the transaction between Pierce, Catron and respondent. That the debt to Pierce was in part of the purchase money agreed to be paid by Catron for the land. That after Catron’s death, respondent, finding that his estate would prove insolvent, paid the debt to Pierce, and instituted a suit in chancery, and obtained a decree for the sale of the land, to satisfy that debt, and another claim which re-pondent held against Catron, for a debt originally due from Brawley, which Catron had also agreed to pay as part of the price of the land. That the land was sold under the decree obtained by respondent, and the proceeds were insufficient to satisfy the debt due him. That respondent neither knew nor believed the existence of any contract by which Catron was to support the complainant and his two daughters, in addition to discharging the debts of complainant, and therefore he could not admit the allegations of the bill in respect to such contract; and even if such contract were entered into, he insisted that it could not be enforced in equity; and as it had never been reduced to writing, he relied upon the statute of frauds as a bar to any claim thereunder.
    Several witnesses, examined on behalf of the complainant, deposed that Catron had repeatedly admitted the existence of an agreement between Brawley and himself, by which he was to support Brawley during his life, and two of his daughters until they should be married, and moreover pay debts of Brawley amounting to about 800 dollars, in consideration of Brawley’s conveyance of his land, and relinquishment of his interest in the property contained in his schedule, to Catron. *According to the testimony of two of these witnesses, Brawley and his daughters were to have a room in the house to occupy as their own, with the privilege of free access to the smoke house, meal tub and stable, at all times.
    The cause was heard in September 1836. Whereupon the chancellor, — declaring his opinion that the parol evidence introduced in the case went substantially to alter and add to the agreement appearing on the face of the deed to Catron, and ought therefore to be rejected ; and that the plaintiff’s case, as set out by himself, was moreover of such a suspicious character as not to deserve the countenance of the court, — decreed that the plaintiff’s bill be dismissed with costs. From which decree Brawley appealed to this court.
    M’Comas, for appellant.
    Sheffey, for appellees.
    
      
      Sale of Realty — Vendor's Lien — Haintenance of Vendor. — The general rule is that; in order to create a vendor’s lien there must be a debt for unpaid purchase money to a fixed amount, due directly to the vendor. A vendee’s obligation to the vendor on a collateral covenant will not give rise to a lien in favor of the vendor on lands by him conveyed, unless such a lien to secure the performance of the covenant is expressly reserved. See, citing the principal case, Barlow v. Delany, 36 Fed. Rep. 579, 580.
      Thus, it is well Settled that an implied equitable lien does not exist in favor of a vendor of real estate to secure the consideration therefor where such consideration is the maintenance and support of the grantors during life. See. citing the principal case, Crim v. Holsberry, 42 W. Va. 668, 26 S. E. Rep. 314; McCandlish v. Keen, 13 Gratt. 615, 623, 625, 629, and foot-note; Nash v. Le Clercq, 17 Fed. Cas. 1174 ; Whiteley v. Central Trust Co., 76 Fed. Rep. 80 ; Bates v. Swiger, 40 W. Va. 425, 21 S. E. Rep. 875. In this last case, the principal case is distinguished from the case at har on the ground that in the latter case there was an express reservation on the face of the deed for a maintenance for life. See also, Pownal v. Taylor, 10 Leigh 172, and foot-note.
      
      Same — Same.—The rule, that a vendor of land is considered in equity as having a lien on the land for the unpaid purchase money, though recognized, has not been regarded favorably by the courts because violative of the policy which seeks to discourage secret liens. To this point, the principal case was cited in Poe v. Paxton, 26 W. Va. 612 : McCandlish v. Keen, 13 Gratt. 622 ; foot-note to Kyles v. Tait, 6 Gratt. 44.
      The principal case is also cited in Mitchell v. Dawson, 23 W. Va. 89.
    
   TUCKER, P.

I shall not enter at large into the consideration of the questions which were very ably argued at the bar, because there seems to me to be a fatal defect at the foundation of the plaintiff’s case. Admit that the contract is fully proved as stated, — admit that the statute of frauds, or the rules as to the introduction of parol evidence, offer no barrier to his success, — admit even that the contract for the support of Brawley and his daughters had been reduced to writing, and executed with all the solemnities of a sealed instrument, — still I think the plaintiff would have no title to the relief which he seeks. He asks to charge the land with this contract, upon the principle of the vendor’s lien, or to rescind the contract altogether. Bet us see, then, whether the vendor Brawley has a right to enforce his claim for the support of himself and daughters, by a resort to the land conveyed to Ca-tron.

*The lien of the vendor upon real estate sold by him is an equitable lien, which is of a comparatively modern date, but has been pushed, nevertheless, as it has been supposed, beyond its legitimate extent. Its mischiefs have not escaped the vigilance of the courts. In the case of Moore et al. v. Holcombe et al., 3 Leigh 601, our ever to be lamented associate and brother Carr quoted some forcible remarks of the late chief justice, to shew the mischiefs which would flow from extending this equity beyond its just limits. It is, says he,” a secret invisible trust, known only to the vendor and vendee, and those to whom it may be communicated in fact. To the world the vendee appears to hold the estate divested of any trust whatever; and credit is given to him in the confidence that the property is his own in equity as well as at law. A vendor relying upon his lien ought to reduce it to a mortgage, so as to give notice of it to the world. If he does not, he is in some degree accessary to the fraud committed on the public, by an act which exhibits the vendee as the complete owner of an estate on which he claims a secret lien.” Again: “The Hen of the vendor, if in- the nature of a trust, is a secret trust; and although to be preferred to any other subsequent equal equity, unconnected with a legal advantage, ’ or equitable advantage which gives a superiour claim to the legal estate, will be postponed to a subsequent equal equity connected with such advantage.” These remarks (says judge Carr) are very sound, and beyond the limits here established I am unwilling to extend the equitable lien. Judge Cabell also, in the same case, strongly remarks on this secret and invisible lien, and obviously inclines to avoid extending the doctrine beyond its present limits. In these opinions I fully concurred, although I placed the case on other grounds; and I now beg leave to say, that unless restricted at least within its present limits, no doctrine would be more pregnant with mischief. *The laws have wisely required conveyances and incumbrances to be placed upon record, to which purchasers may resort for their security and protection. It would be well if vendors who look for their security to the land, would, by express recorded liens, put others on their guard and protect themselves from injury. If this were done, innumerable perjuries would be prevented; and while the seller 'would be saved from loss, the buyer would be protected from imposition. Whereas, by the recognition of this doctrine of equitable lien, it is much to be feared that in desperate cases a claim to charge the real subject is often sustained by the vilest subornation and resisted by the most reckless perjury. While, therefore, we shall follow the track of our predecessors on this subject, until the legislature shall otherwise provide, I cordially agree that we should not extend the doctrine one jot beyond its present limits.

The question, then, suggested by the present case is, whether the doctrine of the vendor’s equitable lien ever has been extended so far as to make it a security for independent covenants, sounding in damages, and extending through the indefinite period of a life or lives in being, or even for generations afterwards. This is in effect the question here; for it would be impossible to discriminate from this provision, one which should provide for the maintenance and support of the grandchildren or more remote descendants of the vendor. Suppose the contract then reduced to the forms of a covenant. If broken, no specific sum is due, but the amount of damages must be assessed by a jury. Can it enter into the conception of any judicial •mind, that these indefinite damages, — depending on matter in pais, both as to the fact of a breach of the covenant and the extent of the wrong done, — can constitute a fair subject of lien upon land sold? Whether, in case of a sale, the duty of fulfilling the covenant is to be performed by the purchaser, or he is to be merely responsible *for Catron’s failure to perform, the obligation is one with the incumbrance of which no person would be willing to purchase, and until the deaths of Brawley and his daughters, Catron would therefore be deprived of that most valuable incident of dominion over his property, which consists in the power of disposition. For this onerous contract is to continue during the life of Brawley, though he may live to an advanced age, and during the celibacy of his daughters, who may never marry. Such an incumbrance would render the land unalienable, and thus frustrate that wise policy of our law which has removed, as far as possible, all trammels from alienation. For who would buy this estate from Catron, clogged with the support of a decrepit old man and two maiden daughters, alien to their family and concerns, and intruded into their household, ‘ ‘with the privilege of a room to themselves, and the free privilege of the smoke house, the meal tub and the stable,” as the witness has expressed it? Or who would buy an estate which is bound for three lives for the faithful performance, by the vendor, of such a contract as this? Such a lien would be an interdict upon a sale, and cannot be supposed to have been contemplated by the parties; and this, it is said, is the test of its existence. 1 Mason 212, 4 Wheat. 292, cited by judge Carr in 3 Leigh 600.

There are a few cases in the english books, which are much less strong than this, where the courts have declared the Hen to have no existence. In Winter v. Lord Anson, 1 Simons & Stuart 434, 1 Cond. Eng. Ch. Rep. 221, the contract of sale provided for the security of the purchase money, by a bond to remain at interest during the vendor’s life. The vice chancellor at first decided that there was a lien, but afterwards set aside that order, and held the lien not to exist. The chancellor reversed the latter defiision (3 Russell 488,) and there was an appeal, which was withdrawn. 2 Sugden *on Vendors 58. This case, though decided in favour of the lien, on the ground “that what was called an annuity was in fact nothing more than the interest of so much of the purchase money as remained unpaid, ’ ’ was much doubted; and yet how much stronger against the lien is the case at bar. There the amount of the lien was a sum certain: here it is uncertain and fluctuating, depending on the performance of the contract. There it might be removed by paying off the purchase money: here nothing but three deaths can remove it. There money was to be paid: here three pensioners are to be fixed for life upon the purchaser. Indeed it might perhaps perplex a casuist to say whether this unpleasant burden would fall upon the purchaser himself, or whether he would only be responsible to pay in default of Catron’s faithful discharge of his contract. Either way, it would impose unreasonably on the purchaser.

The next case I shall mention is Clarke v. Royle, 3 Simons 499. There the estate was conveyed in consideration of the purchaser’s covenant to pay an annuity to the seller for life, and ¿3000. in case he married, to such persons as he should think fit. Here, though the annuity was certain, it was decided that the seller had no lien for it, or for the ¿3000. which was contingent.

In this case, too, the vice chancellor considered the case of Tardiff v. Scrughan, 1 Bro. C. C. 423, as overruled by lord Eldon in Mackreth v. Symmons, 15 ves. 352, as it certainly was. That case, which was cited in Blackburn v. Gregson, 1 Bro. C. C. 423, was thus. Hewitson and wife conveyed an estate to their two daughters, for an annuity of ¿20. per annum, and payment of Hewitson’s debts. The daughters gave their bond in the penalty of ¿500. for payment'of the annuity. The annuity was for some years regularly paid; but one of the daughters dying, her husband refused to pay more. Lord Camden held that there was a lien for *'the annuity; but lord Eldon disapproved the decision. That of lord Camden was at an early day (in 1769) ; that of lord Eldon, when the doctrine had become well settled by repeated adjudications. Now this case was less strong against the lien than ours, since it was a certain fixed money charge, instead of being either a fluctuating and uncertain demand, or a disagreeable and intolerable burden.

Upon the whole, then, without considering any other point, I am of opinion to affirm the decree.

The other judges concurred. Decree affirmed.  