
    The Union Central Life Insurance Company et al. v. Emigh.
    
      Vendor’s lien — Cannot be asserted against mortgagee — Or his privies, when.
    
    A vendor’s lien which arises out of a failure to pay part of a mortgage debt, which the vendor himself by stipulations in a prior deed had agreed to pay, cannot be asserted against the mortgagee or his privies in estate.
    (No. 11464
    Decided June 7, 1910.)
    Error to the Circuit Court of Paulding county.
    One Eli Need, being the owner in fee simple of certain real estate in Paulding county, executed and delivered to the plaintiff in error, The Union Central Life Insurance Company, his wife joining with him, a mortgage for the sum of three thousand dollars. Afterwards, Eli Need and Margaret, his wife, conveyed the lands to Frank Need, and the latter conveyed the same to Margaret Need. On the first of January, 1892, Margaret, her husband Eli joining with her, sold and conveyed said premises to the defendant in error, Emigh, for the sum of thirty-two hundred dollars, and as part of the consideration the grantee assumed and agreed to pay to The Union Central Life Insurance Company the sum of twenty-five hundred dollars to apply on the said mortgage given by Eli Need and wife to the said insurance company. Thereafter, Emigh sold and conveyed the said premises to one Dunfee by a deed of general warranty covenanting against all encumbrances except this mortgage of the insurance company which had theretofore been reduced to twenty-five hundred dollars. This deed contained no stipulation as to any assumption of this mortgage indebtedness by Dunfee. Subsequently the insur- . anee company commenced an action against Dunfee, Eli Need and others, t© foreclose this mortgage, but Emigh was. not made a party to said action. The petition for foreclosure contained an averment that, in consideration of the extension b> the company of the time of payment of said mortgage, the said Dunfee had agreed with the company to pay the same. Judgment was 'rendered against Need and Dunfee, the mortgage was foreclosed, and the lands were purchased at the foreclosure sale by the company. The proceeds of the sale being insufficient to pay the judgment in full, Need paid the balance to the company, and afterwards in an action against Emigh 'recovered the same upon the promise of the latter 'as contained in his deed to pay this mortgage in•debtedness. Prior to the recovery against Emigh, on October 13, 1897, the insurance company sold said premises by written contract to the plaintiff in error, Cline, for. the consideration of thirty-two hundred dollars and covenanted to convey the same by deed upon payment of the balance of the purchase price; and, the same having been paid, on September 22, 1905, the company conveyed the premises to Cline by deed of general warranty. On the execution of the contract Cline entered into possession of the premises and made valuable improvements thereon. The defendant in error claimed that there was a verbal agreement between himself and Dunfee bv winch Dunfee as a part of the consideration for the purchase of the premises promised to pay the insurance company’s mortgage of twenty-five hundred dollars, and that the insurance company had notice of that agreement. This action was begun by the defendant in error against the plaintiff in error for the purpose of obtaining a decree establishing and foreclosing a vendor’s lien upon the premises mentioned. The court of common pleas sustained general demurrers to the petition and amended petition, and on error the circuit court reversed the lower court and remanded the cause. Thereupon in the court of common pleas • issues were joined and upon the hearing a decree was rendered in favor of the defendant in error establishing a vendor’s lien a,nd ordering the same foreclosed. On appeal to the circuit court a similar finding, judgment and decree were rendered which the plaintiffs in error now seek to have reversed.
    
      Messrs. Snook & Wilcox and Mr. W. H. Phipps, for plaintiffs in error.
    
      Messrs. Waters & Spriggs, for defendant in error.
   Davis, J.

We do not think it is at all necessary to follow the intricacies of the law of vendor and purchaser in this case, for it appears to us quite clear that the defendant in error has no enforceable lien as against the plaintiffs in error.

Assuming that Dunfee agreed with ■ the defendant in error to pay twenty-five hundred dollars on the mortgage held by The Union Central Life Insurance Comnanv. which by the way is controverted the defendant in error can assert no lien against the mortgagee or those holding under it; for as between the mortgagee and Need.and the defendant in error Emigh, the latter became the principal and Need the surety for the payment of twenty-five hundred dollars on the mortgage, by virtue of Emigh’s assumption of that amount as part of the consideration for his deed. Poe v. Dixon, 60 Ohio St., 124. It was upon this theory that judgment was rendered against Need, which he paid and then recovered from Emigh. If the defendant in error had an agreement with his vendee, Dunfee, to pay twenty-five hundred dollars on the mortgage, and the latter failed to perform, undoubtedly the defendant in error would have a right of action against Dunfee; but such an agreement could not change the relations between the defendant in error and the mortgagee, The Union Central Life Insurance Company. He still remained liable for the debt, unless it were paid by his vendee, Dunfee. It was not so paid except by sale of the land under the mortgage; and therefore if the defendant in error were allowed to enforce a vendor’s lien as against Dunfee in this action, it would bring about a circuity of actions which is not tolerated in equity.

The plaintiff in error, Cline, holds under the mortgagee, The Union Central Life Insurance Company, and besides, from the conceded facts appears to have been an innocent purchaser.

The judgment of the circuit court is reversed, and we render final

Judgment for plaintiffs in error.

Summers, C. J., Crew, Spear, Shauck and Price, JJ., concur.  