I think when Hitchcock contracted to sell to Quinlisk the lot in question, by the express permission of the Shaws, that Quinlisk acquired a right as against the Shaws to a conveyance of the lot free and clear upon payment of the balance of the purchase *444money. If before the conveyance by the Shaws to Hitchcock, Quinlisk had completed her payment of the purchase money, I think she-could have compelled a conveyance to her from the Shaws though. Hitchcock should have refused to pay to them the price stipulated between them. They had put Hitchcock in possession with all appearance of absolute ownership and intended that he should sell on installments to people who would pay him their money from time to time without knowledge of the actual state of things. They will not be permitted in equity to disappoint the natural expectation of such purchasers. When they finally conveyed to-Hitchcock they could not take a mortgage from him which should be superior to the right of Quinlisk to have a conveyance free and. clear upon payment of the balance of her purchase money; and the assignee of the mortgage took it cum onere. I do not think that the relation between the Shaws and Hitchcock was that of. partnership, but it was a relation which contemplated fraud upon any theory of the rights of purchasers other than that above indicated. Schemes for the sale on the installment plan of cheap suburban lots to poor and ignorant people by one not the owner whose rights are to be entirely forfeited after lapse of a certain period on certain conditions, or by the owner himself if they are heavily encumbered, lie always in a very shady territory, close to the boundary of fraud. I think upon the answer the defendant Quinlisk’s right to a conveyance from the assignée of Hitchcock upon payment of the small unpaid balance of her purchase money is paramount to the mortgage and that the demurrer should be overruled.
There is a suggestion in the plaintiff’s brief that defendant has. sued Hitchcock and recovered a judgment for damages. If that be-so of course her right to a conveyance is extinguished and her judgment lien is subordinate to the mortgage. But this is a matter that must be presuited by a reply.
Demurrer overruled, with costs, with leave to reply within twenty days, on payment of costs.
Demurrer overruled, with costs, with leave to reply within twenty days, on payment of costs.