Atkinson v. Lindsey

Worden, J.

This was a complaint by the appellee against the appellants, to enforce a vendor’s lien on real estate. The land had been sold by Lindsey to Hiram Kearns, and by the latter to Robert M. Atkinson, who sold it to Cephas Atkinson. Lindsey seeks to enforce his lien upon the land in the hands of Cephas Atkinson.

The deed from Lindsey to Kearns was dated January 14th, *2971857. That from Kearns to Robert M. Atkinson was dated June 9th, 1857. And that from Robert M. to Cephas Atkinson was dated December 5th, 1865.-

This suit was Commenced on the 24th of June, 1869.

Among other pleadings in the cause, the defendant Robert M. Atkinson pleaded, second, that the plaintiff was estopped from setting up any lien upon the land, for the reason that before he purchased and paid for the land, he made inquiry of the plaintiff whether it would be right, etc., and was told by the plaintiff that it would be riglit, and to go on and make the purchase; third, that for a valuable consideration the plaintiff by parol, released and relinquished his supposed lien upon the land.

Issue, trial, verdict, and judgment for the plaintiff, a motion for a new trial made by the defendants being overruled, and exception taken.

The defendants bring the case here upon the evidence, ■ which, upon a careful examination thereof, we think fails to sustain the verdict.

The proof, to bring home notice to Cephas Atkinson of the fact that the purchase-money "or any part of it, due from Kearns to Lindsey, remained unpaid at the time Cephas purchased from Robert, is quite unsatisfactory. It is shown that in the spring or summer after Lindsey conveyed to Kearns, Cephas was informed and knew that a portion of the purchase-money remained unpaid. But Cephas did not purchase the property until December, 1865. In the meantime, the property had been conveyed by Kearns to Robert M. Atkinson. Cephas testifies that at the time he bought and paid for the land, he had no notice of any claim for unpaid purchase-money in favor of Lindsey. If the case turned entirely upon this point, we should be inclined to look carefully to the question whether such notice to Cephas would be sufficient, before deciding it. • As at present advised, we are not satisfied that such notice would be sufficient; but we decide nothing upon the-point, as there is another ground upon which the judgment must be reversed. We are of opim *298ion that the estoppel pleaded was fairly made out by the evidence, and we find no evidence in the record rebutting or contradicting it.

The judgment below is reversed, with costs, and the cause remanded for a new trial.