Opinion
06-28-1901
CRAFT v. LATOURETTE et al.
E. W. Demarest, for complainant. W. C. Parker, for defendants.
Action by Elijah R. Craft against Richard R. Latourette and others. Demurrer to bill overruled.
E. W. Demarest, for complainant.
W. C. Parker, for defendants.
STEVENS, V. C. This case comes up on demurrer. The bill alleges that on November 3, 1898, Juliet L. Brown entered into a written agreement to convey to complainant certain building lots, known as lots 30, 31, and 32 in block 472 in the city of Bayonne, for the price of $930. Of this price, $30 was to be paid on the delivery of the agreement, and $30 on or before the 15th day of each month ensuiug its date, until 50 per cent. of the price should be paid, when the vendor was to convey by warranty deed, and take back a purchase-money mortgage for the balance due. It is further stated that complainant had paid, pursuant to the terms of this agreement, the sum of $393, together with a year's taxes, when the vendor died; that after her death he tendered to her executors another installment of $30, but they refused to take it, because they had found that two of the lots did not belong to the vendor, and that they could give no title to them; that, on request that the executors either obtain title or refund the money, they refused to do either, and based their refusal on the ground that "it was questionable whether the estate was solvent or insolvent." The complainant alleges that a single lot is of no value to him for the purpose for which he made his purchase. He asks, inter alia, for a decree that the executors return the purchase money, and charge it upon the one lot which Mrs. Brown in fact owned at the time of her death. The question argued in the briefs is whether the court will, under the circumstances detailed, give to the vendee a lien for the money paid by him, upon so much of the property agreed to be conveyed as the vendor or her devisees have title to. The precise question does not appear to have been decided in any reported decision of thiscourt, but I have no doubt that the Hen exists. The leading case is Rose v. Watson, 10 H. L. Cas. 672. Lord Cranworth there uses the following language: "There can be no doubt, I apprehend, that when a purchaser has paid his purchase money, though he has got no conveyance, the vendor becomes a trustee for him of the legal estate, and he is, in equity, considered the owner of the estate. When, instead of paying the whole of his purchase money, he pays a part of it, it would seem to follow as a necessary corollary, that, to the extent to which he has paid his purchase money, to that extent the vendor is a trustee for him; in other words, that he acquires a lien, exactly in the same way as if, upon the payment of part of the purchase money, the vendor had executed a mortgage to him of the estate to that extent." The same view, annunciated as far back as 32 Geo. II. (A. D. 1758) by the master of the rolls in Burgess v. Wheate, 1 W. Bl. 123, 150, is adopted by the text writers. 2 Washb. Real Prop. (4th Ed.) pp. 93, 94; Pom. Eq. Jur. § 1263; 2 Jones, Liens, §J 1105, 1106. So far as the New Jersey cases go, they tend to support this view. In Copper v. Wells, 1 N. J. Eq. 10, it was held that, where a specific performance has become impossible, the party aggrieved has a lien for the value of beneficial or lasting improvements made on the faith of an agreement which could not be executed because of a default in the opposite party. To the same effect is Berry v. Van Winkle, 2 N. J. Eq. 269. The complainant is entitled to a decree adjudging that he has a Hen upon the lot covered by the agreement to convey, to the extent of the money paid by him, and that the lot be sold to satisfy that lien. He is not entitled to a Hen upon any other land belonging to the vendor at the time of her death. No order can be made in this suit with respect to the relative priorities of this Hen and of a mortgage lien alleged to rest upon the entire tract, for the reason, among others, that the mortgagee is not a party to the controversy. The defendants cannot be directed to pay out of the assets of the estate in their hands any deficiency existing after the lien shall have been exhausted. The complainant obviously stands on no more favorable footing in other respects than any other unsecured creditor of an estate that, as the bill suggests, may be insolvent.