Dance v. Dance

Miller, J., delivered the opinion of the Court. It appears from this record, that Joseph G-. Dance, on the 10th of January, 1814, conveyed to his son, Alexander Dance, certain real estate for $4000. The son paid $1000 in cash, and for the balance of the purchase money, gave his two promissory notes, one for $400 payable “ twelve months after date, with six per cent, interest,” and the ■other for $2600, payable “one year after” his mother’s death, “ with six per cent, interest.” The father died shortly after this deed was executed, .leaving a will, by which he appointed his son Milton Dance, his executor.

On the 18th of March, 1819, Alexander Dance and wife mortgaged the property to Mrs. Sarah C. Brooks, to secure a debt of $2000, and on the 21st of the same month, the executor filed the hill in this case, in which he avers that part of the principal of the $400 note, and the interest on the $2600 note,' making in the aggregate the sum of ■$820.Y2, is now due, and he insists that this purchase money is a lien upon the land. The bill further charges that the mortgage to Mrs. Brooks, was a scheme and device mutually agreed upon between the parties thereto, to defraud and cheat the complainant, and the devisees of Joseph Gr. Dance, out of this unpaid purchase money, and that she took the mortgage with full 'knowledge of this lien. The prayer of the hill is that a decree may be passed for a sale of the land for payment of the purchase money, that Alexander Dance may he enjoined from selling or encumbering it, and that Mrs. Brooks may he enjoined from disposing of her mortgage, and from selling the property thereunder by any proceeding in equity or otherwise.

Alexander Dance in his answer, avers that he has paid the $400 noce in full, principal and interest, and that no part of the principal or interest of the $2600 is now due, as the same is made payable one year after the death of his mother, who is still living. He denies there is any ⁴³⁶ lien upon the land, and insists that the payment of the purchase money, when it shall mature, is provided for out of money coming to him from his father’s estate, as will appear by the provisions of his father’s will. He denies the charge of fraud and conspiracy in reference to the mortgage, and avers the same was executed in good faith, for money actually borrowed from and due to Mrs. Brooks, and that he is satisfied she was not then aware that he was indebted on any account to any other person. Mrs. Brooks, in her answer, also denies the allegations of fraud and conspiracy, avers the bona fides of the mortgage and the debt due to her, and insists that when she took it she had no knowledge whatever that the complainant had any claim for purchase money against the mortgaged property.

Upon the hearing, after testimony had been taken, the Court passed a decree dissolving the injunction that had been previously granted, and dismissing the bill. From that decree the complainant has appealed. As between the vendor or his executor and the vendee, we have no doubt there was a lien upon this land for the unpaid purchase money. Equity recognizes and enforces a lien on the land as security for the unpaid purchase money, whether the legal estate has been conveyed or not; and this lien exists independent of any special agreement, as an incident to the contract of sale of real estate.

It is not extinguished, even where the legal title has been conveyed, by the mere fact that the vendee gives his own individual note or obligation, without other security, for payment of the purchase money. Schwarz vs. Stein, 29 Md., 112 ; Hurley, vs. Hollyday, 35 Md.,