Aycock Bros. Lumber Co. v. First National Bank

Hooker, J.,

(concurring).- — -I concur with Justice Taylor in affirming the decree below. In doing so, however, it is proper to say that the several grounds of demurrer attack generally the equity of the whole bill, and are not addressed to any special defect therein. Therefore, if -there is any equity in the bill, the decree which is in -accordance with the allegations and prayers of the bill should be affirmed. It seems to me that there is equity in the bill inasmuch as it seeks to foreclose against the vendee, in behalf of the assignee of the vendor, an equitable lien or mortgage for the purchase money of real estate, — -the contract of sale showing that the vendor retained the legal title in himself until the purchase money should be p-aid, and he being a party defendant to the bill. This kind of a vendor’s lien is, in some respects different from the lien of a grantor for purchase money, who has conveyed the legal title to the purchaser, and is assignable. The authorities cited by Justice Taylor, as well as others sustain this equity.