
    Way v. Patty and Others.
    
      Tuesday, June 6.
    The vendor of real estate, by taking the vendee’s promissory notes for the purchase money, with a third person as security, waives his equitable lien on the land for such money, unless there be an express contract that such lien shall be retained.
    Such lien cannot be enforced against a subsequent purchaser, though he had notice from the vendee, at the time of purchase, that the notes were unpaid.
    ERROR to the Wayne Circuit Court.
   Smith, J. —

This was a suit in chancery, commenced in the Wayne Circuit Court, by Seth Way against Manlove Cranor, Thomas Cranor, and Mark Patty, to enforce an alleged lien upon certain real estate sold by the plaintiff.

The bill charges that, on the 25th of March, 1839, the plaintiff sold a certain farm, therein described, to Manlove Cranor and Thomas Cranor, and conveyed the same to Manlove to be held in trust for himself and Tlwmas, his co-purchaser. That the consideration of the sale was the sum of 3,300 dollars, and the payment of a mortgage then on the land for 500 dollars. That 1,300 dollars, part of the purchase money, was paid in hand, and that, for the remainder thereof, Manlove and Thomas Cranor executed three notes, one.for the payment of 800 dollars to the plaintiff, and two, 'for 600 dollars each, payable to Lucinda Way, the wife of the plaintiff. That the only terms upon which the said Lucinda would agree to join in the deed and relinquish her contingent right of dower in the premises, were, that said two notes should be made payable to her, and that they should remain a lien upon the property sold until paid. That it was expressly agreed by all the parties that the three notes, so executed, should remain a lien upon the premises, notwithstanding the deed was made to Manlove alone and the notes were signed by both Manlove and Thomas. That both the notes payable to Lucinda Way remain wholly unpaid, and a balance of 420 dollars is still due on the note payable to the plaintiff: and that the Granors have sold the land to Patty, who purchased it with notice of the foregoing facts, and has not paid any part of the purchase money.

The Granors, in their answers, deny that Thomas Graiwr had any interest in the purchase of the land from the plaintiff, and that there was any agreement that Manlove should hold it in trust, or that the notes should remain a lien upon it; on the contrary, they say the sale was made to Manlove alone, and tire conveyance executed to him upon the express condition that Thomas should sign the notes as his security.

Patty admits his purchase of the land, and that he was aware there was a balance of the purchase money, amounting to about 2,000 dollars, unpaid and due from Manlove Granor to the plaintiff, but alleges he ascertained that the notes had been signed by Thomas 'Granor as the security of Manlove, and that, therefore, said purchase money remaining due was not a lien on the premises. He denies all the other material facts stated in the bill, and says he has fully paid the pinchase money due from him to Manlove Granor.

The cause was heard upon bill, answers, replications, and depositions, and the bill dismissed at the costs of the plaintiff.

The decree must be affirmed. The evidence does not warrant the conclusion that Thomas Granor was jointly concerned with Manlove in the purchase of the land, or that there was any special agreement that the notes given for the purchase money should continue to be a lien upon it. It is proved that Mrs. Way agreed to sign the deed upon condition that some of the notes were made payable to her, and there were representations made to her by Thomas Cranor and others who were called in to give her advice, that the notes would continue to be a lien on the land until paid. She may have been misled by these representations, and thereby prevented from insisting upon better security for the payment of the notes, but they appear to have been based wholly upon the opinions of those by whom they were made upon a point of law, and however incorrect, they are no evidence of any special agreement which can be enforced against Manlove Cranor or Patty. This case is very similar in all its leading features to that of Boon v. Murphy, 6 Blackf. 272.

J. Rariden and J. 8. Neioman, for the plaintiff.

J. B. Julian, for the defendants.

Per Curiam.

The decree is affirmed with costs.  