Opinion
10-23-1899
MORGAN v. DALRYMPLE.
J. J. Crandall, for complainant. Robert S. Clymer, for defendant,
Suit by Rebecca C. Morgan against Evan Dalrymple to enforce a vendor's lien. Decree for defendant.
J. J. Crandall, for complainant. Robert S. Clymer, for defendant,
REED, V. C.The facts are as follows: On November 29, 1888, Evan Dalrymple made a bond to Rebecca C. Morgan, accompanied by a warrant of attorney to confess judgment. The bond was conditioned for the payment of $855 within one year from October 1, 1888, with interest thereon payable semiannually. Concurrently with the execution of this bond, an agreement was executed, signed by Rebecca C. Morgan, in which it was recited that Dalrymple had given to Rebecca his bond and warrant of attorney bearing date November 29, 1888, conditioned for the payment of $855 within one year from October 1, 1888, with legal interest thereon payable semiannually, and witnessed that whenever the amount paid thereon reaches the sum of $427, being one-half of the principal sum of said bond, the said Rebecca C. Morgan, for herself, her heirs and assigns, agrees to convey to said Evan Dalrymple a tract of ground in Gloucester county containing 2.85 acres. At this time Dalrymple was already in possession of the said tract of land. Nothing was done to change the position of the parties in respect to the landuntil August 14, 1890. Interest upon the bond had been paid, but none of the principal. On that date Rebecca conveyed to Dalrymple a part of the said tract, concerning which sale the following is indorsed upon the original agreement: "Received August 14, 1890, a certain indenture, bearing even date herewith, from Allen S. Morgan and Rebecca C. Morgan, covering 68/100 of an acre, being part of the tract described in this agreement (reference to said indenture will more fully describe said lot of ground), with a messuage or tenement thereon, which is hereby released and excepted from the condition of this agreement. Evan Dalrymple." For this conveyance the sum of $204 was received, which was indorsed upon the bond as a payment upon the principal sum of $855, leaving due the sum of $651. It is perceived that the amount paid for the part sold was in the same proportion to its size as the sum of $855 is to the entire tract of 2.85 acres. Upon the part so sold, Dalrymple has built a house. Interest was paid upon the bond by Dalrymple up to October 1, 1897. On May 16, 1899, Dalrymple, with one Robb, a real-estate dealer, went to see William Morgan, the son of Rebecca C. Morgan, who had general charge of her affairs, and told him that there was a chance to sell a piece of ground adjoining the land still belonging to Mrs. Morgan, and that Robb wished something to show to the effect that the purchaser of the adjoining land would have the right to acquire this land also. William Morgan signed the following paper: "I agree to rent or sell the land stated in an agreement with Evan Dalrymple on same terms; two acres, more or less." It does not appear that William had any authority to sign such a paper for his mother.
Counsel for the defendant insists that the original agreement conferred upon the defendant, who was in possession at the date of the execution of the agreement, an option to purchase or rent; that he could pay interest upon the bond, as rent, or could pay the amount stipulated and purchase. He further insists that the defendant can, as he has done, abandon the premises, and sever his relation as tenant, as well as refuse to purchase. I do not so construe the contract. The bond and agreement are parts of one transaction. The bond is referred to in the agreement and it is so referred to as to display the fact that the amount secured by the bond was the consideration to be paid for the 2.85-acre tract. By the bond, Dalrymple bound himself to pay this amount in one year. By it, he had the right, when one-half the principal was paid, to get title to the land. He could pay the one-half at any time before the maturity of the bond. Whether he could get title after the expiration of the year by paying only one-half of the same, would depend upon equitable considerations. The price was due on October 1, 1889, by the terms of the bond; and at any time after that date the vendor had a right to enforce the obligation, and the right to cut off or foreclose the equitable interest of Dalrymple in the land, arising out of the agreement. This right is what is meant by "vendor's lien" in those instances where the legal title remains in the vendor. I am therefore of the opinion that when the bond matured there was a right to enforce this lien. It was not enforced at that time, as I have observed, but the vendee remained in possession, paying interest upon the bond. But the right of lien belonging to the vendor was not extinguished by this delay to enforce it But, assuming that the right to lien still exists, in my judgment it does not include the right to impress a lien upon the part which has been conveyed. By the indorsement upon the agreement, this part was released and excepted from the condition of the agreement. The parcel sold was entirely paid for. It was built upon. The indorsement, although signed by Dalrymple, was written upon the agreement in the possession of the complainant, and here presented in evidence by the complainant. It could not have been the intention of either party that this parcel should remain liable for any portion of the unpaid part of the whole consideration. Such lien as may have existed was by this transaction waived, in respect to this portion of the original tract. The lien, then, is confined to the remaining portion of the tract; and, as the legal title to that land is still in the complainant, the only force of a decree would be to cut off the equitable title which resides in the defendant by force of the agreement. But I find a difficulty in the way of making even this decree. It appears that a judgment was entered on the bond before the filing of this bill. The entry of the judgment would not extinguish the right of the complainant to pursue his equitable remedy. Graves v. Coutant, 31 N. J. Eq. 763-780. But there is offered in evidence a copy of the judgment record, certified by the clerk of Gloucester county, in which court the judgment was entered. Now, a part of this record is the statement of the clerk that: "By virtue of a special warrant of attorney, duly acknowledged, from Allen S. Morgan, attorney for Rebecca C. Morgan, in the record named, and to me directed, to acknowledge that the said Rebecca C. Morgan is satisfied of the debt and costs. Dated June 25, 1889." Here is a record evidence that the debt for which the lien is claimed passed unto judgment, which judgment has been satisfied. As long as this record stands it must be assumed that the debt has been paid. I must advise a decree for the defendant666