concurring.—The question involved in this case depends very much upon the right of a grantor of real property by deed of absolute conveyance, to claim a lien upon the property for the unpaid purchase price thereof. In Kelly v. Ruble et al., 11 Or. 75, this court expressed a doubt as to whether a vendor’s lien, as it existed at common law, was in force in this state. It was not necessary to the decision of that case to determine the question, and hence no opinion upon it was declared, further than an intimation of its non-existence. But in a former case, Pease v. Kelly, 3 Or. 417, this court evidently considered that a lien of that character was in force, although it did not distinctly so determine.
It will not be contended, I presume, but that the common law of England, so far as applicable to the condition of the people, has been adopted in this state; nor be denied that the part thereof relating to vendor’s lien was adopted with it, unless unfitted to the situation of the affairs of the community. A great amount of speculation has been indulged in as to the origin of such a lien. Mr. Pomeroy, in his work on Equity Jurisprudence, says “ that it has been accounted for as a trust; as an equitable mortgage; arising from a natural equity, and as *277a contrivance of the chancellors to evade the unjust rule of the early common law, by which land was free from the claims of simjjle contract debts.” (Sec. 1250, Pom’s Eq. Juris.) Chancellor Kent terms it an equitable mortgage, and says that “ it will bind the vendee and his heirs, and volunteers, and all purchasers from the vendee, with notice of the vendor’s equity; that prima facie the lien exists without any special agreement for that purpose ; and it remains with the purchaser to show, that from the circumstances of the case, it results that the lien was not intended to be reserved, as by taking other security etc.” (4 Kent’s Com. *151, 152.) Judge Story says “ that it attaches to the estate as a trust, equally, whether it be actually conveyed, or only be contracted to be conveyed.” (Story Eq. Jur., Sec. 1218.)
In Ahrend v. Odiorne, 118 Mass. 261, Judge Gray, now of the Supreme Court of the United States, then chief justice of the Supreme Court of Massachusetts, concluded, after an elaborate examination of the question, that the foundation of the doctrine was, that justice required that the vendor should be enabled to charge the land in the hands of the vendee as security for the unpaid purchase money, and that the restriction of it to real estate suggested the inference that the court of chancery was induced to interpose, for the reason that real estate could not be attached on mesne process ; nor, except in certain eases, and to a limited extent, be taken in execution for debt. The learned judge rejected the theory of natural equity, because that would apply to a sale of chattels, as well as of land; and the theory of a trust, as that would include too many other cases to which, confessedly, the doctrine had not been extended.
Mr. Pomeroy repudiates the idea of its being a trust, and thinks that the original and true ground of the lien arises out of the natural judicial conception, that upon the sale of anything on credit, the very identical thing sold should be regarded in some sort as a special fund out of which payment of the price was to be obtained, or at least secured; and that the seller should not be considered as parting absolutely with his *278whole interest and dominion until the price is fully paid. (3 Pomeroy Eq. Jur., 256, Sec. 1250.) And in a foot-note to said section, that author concludes that the theory advanced by the Massachusetts courts as to the origin of the doctrine was imperfect and unsatisfactory ; that the absence of any power at common law to make the land liable for ordinary debts, instead of being the source of the grantor’s lien, was itself only another instance and consequence of the same general superiority given to the ownership of the land ; both were incidents of one common mode of treating real estate, as compared with personalty. But he suggests the opinion that the original grounds and reasons for admitting the grantor’s lien do not exist in our own country, and that the lien itself is not in harmony with our general real property law.
Judge Story, on the other hand, says, “ that the principle upon which courts of equity have proceeded in establishing the lien in the nature of a trust is : that a person who has gotten the estate of another ought not, in conscience, as between them, be allowed to keep it, and not pay the full consideration money.” (Story Eq. Jur., Sec. 1219.) And in the pi-evious section the same author says: “ It has often been objected that the creation of such a trust by courts of equity is in contravention of the statute of frauds. But whatever may be the original force of such an objection, the doctrine is now too firmly established to be shaken by any mere theoretical doubts.” (Story Eq. Jur., Sec. 1218.)
The objection to the doctrine of vendor’s liens is not to its application to estates contracted to be conveyed, but to the extension of it to estates actually conveyed. It seems to me that if the doctrine has no other foundation than to evade the rule ■of the common law exempting real property from the payment of simple contract debts, its adoption to the extent suggested is very questionable indeed ; as there never was a condition of affairs in this country that required such a remedy on account of any such circumstance as that. But if, on the other hand, it was founded upon the principle stated by Judge Story and suggested by Mr. Pomeroy, “ that a person who has *279gotten an estate of another ought not in conscience, as between them, to be allowed to keep it and not pay the full consideration money,” then it was as applicable here as in Great Britain. That principle is eternal, and applicable to every country and every age.
I think the principle is a salutary one, and that it should be enforced in a proper case. Whether it is broad enough, however, to uphold a vendor’s lien to the extent of raising a trust in favor of a grantor, who has conveyed by deed of absolute conveyance, so-as to admit of the purchase price being made a charge upon the property conveyed, in an ordinary case of sale of real estate, I do not undertake to decide, as I do not regard the decision of that question as necessarily essential to the decision of the case under consideration. Here the conveyance was procured by the vendees to be made to their wives, appellants herein, upon an assurance that the vendees would execute to the respondent, in consideration of the conveyance of her interest in the land, good, approved, bankable notes; in* stead of which they merely gave their own note, which is uncollectible ; and by reason of the conveyance having been so made, the respondent is not able to reach the property, so as to make it applicable to the payment of her debt by an ordinary proceeding at law. The transaction was fraudulent. Property obtained under such circumstances ought to be made chargeable with the consideration money, whether the law relating to vendors’ liens as it existed at common law is in force or not. The appellants, through the false promise of the vendees, obtained the respondent’s property, and they certainly ought not in conscience be allowed to keep it and not pay for it. That presents a case in which a court of equity would have an undoubted right to charge the property with the payment of the debt, irrespective of the other question referred to. Upon that ground I think the respondent is entitled to a lien upon the property for the payment of her debt. I therefore concur in the result reached in the opinion of Judge Strahan, herein.
Lord, C. J.—dissents.