Hurley v. Hollyday

Bartol, C. J., delivered the opinion of the Court. The question,? in this case arise upon an agreed statement of facts. There is no dispute with regard to the real amount of the purchase money remaining unpaid to the appellee for the land sold by him to James Wason, deceased. This amount is correctly ascertained and stated by the auditor; but the appellant’s exception to the account rests upon the fact that on the 2d day of May, 1867, Wason the purchaser, gave to the appellee three promissory notes of that date, viz: One for $1,000, payable on the first day of October, 1867, signed by himself and John W. Stouffer; one for $1,500, payable on the first day of January, 1868, signed by himself and John Kendel, and one for $449.38, signed by himself, payable on the first day of February, 1868, and on the same day the appellee gave to James Wason the following receipt: “Received May 2d, 1867, from James Wason, twenty-nine hundred and forty-nine -AV dollars, in full of payment due April 1st, 1867. “$2,949.38 in notes.

(“Signed,) R. T. Holeyday.” It is argued on the part of the appellant that this transaction operated as a waiver and extinguishment of the vendor’s lien for so much of the purchase money as was secured by these notes; and that the same ought to have been disallowed in the computation of the appellee’s claim for priority out of the fund in Court, which has arisen from the sale of the same lands under a creditors’ bill against the heirs and personal representatives of James Wason, deceased. It further appears that no part of the money secured by the notes has been paid; they are in the possession of the appellee and have been produced in Court. ⁴⁷² The sale from the appellee to Wason is evidenced by articles of agreement; the legal title has not been conveyed, but remains in the appellee. In this state of facts, there seems to be no authority which supports the appellant’s position, that the vendor’s lien was waived, by taking the promissory notes. In Magruder vs. Peter, 11 G. & J., 218 it was held, “ that a reservation of the legal title, in the contract of sale until the full payment of the purchase money, is a conclusive manifestation of the vendor’s intent not to part with his lien therefor, and that the lien in that case was not waived by taking notes with endorsers to secure the purchase money.” In Swarz vs. Stein, 29 Md., 119 it was said: “Whatever may be the rule maintained elsewhere, it is now too well established in this State to be called into question, that where the vendor retains the title in himself, but takes the note, bond or covenant of the vendee, with personal security of a third party, for the payment of the purchase money, this will not be of itself sufficient to justify the presumption of a waiver of the lien.” ' Where the legal title is conveyed the rule is different, and in such case, if other security is taken, the lien will be considered as waived or surrendered “ unless there be an express agreement that it shall be retained.” In McGonigal vs.