Francis v. Wells

Brazee, J.

Appellee exhibited his bill in the district court of Clear Creek county, against appellant and others, to enforce a vendor’s lien. He charges that one George Way, being the owner of certain realty, employed and empowered him to make a sale thereof, and authorized him to retain all that he should receive over and above a certain sum for his services ; that he accordingly made sale of the premises to the Franklin Silver Mining Company, for a sum exceeding the amount specified by Way by $750, payable in one year from the date of sale; that afterward, and before the money fell due, the Franklin Company assigned their contract to one McFarland, who obtained a renewal thereof from Way, and who executed to Way his promissory note for the sum of $3,000, payable on the 6th of September, 1872, and who also executed to appellee his note for $780, payable at the same time, the latter being the sum due to appellee for his services in selling the property. The bill also charges that McFarland failed to perform his contract, and that on the 6th of December, 1872, he assigned and transferred his interest therein to appellant. That appellant, McFarland and Myers, who acted as the agent of both, McFarland and Francis, fraudulently obtained another contract from Way, from which appellee’s demand was omitted, no provision being made therein for the payment of his claim. It will be seen that the assignment from McFarland to appellant is an essential feature of the case made; for as provision was made in the bond given to MeFarland for appellee’s demand, by accepting an assignment of it, appellant would become bound by its terms. As to this, however, the proof is wholly insufficient. It appears that the McFarland bond was surrendered to Way on the 6th of December, 1872, who executed a new obligation to Francis, by which he bound himself to convey the premises to the latter.

It will be observed that "Way was under no obligation to pay the sum promised by McFarland to appellee, nor could the premises be charged therewith until McFarland should perform his contract The lien of vendors for purchase-money attaches to the interest of the vendee in the premises sold, and if the contract is not performed in any way, there is nothing to which the lien can attach. If a portion of the purchase-money is paid, the interest of the vendee thereby acquired may be sold to satisfy the remainder of the purchase-money, but if nothing whatever is paid, it is impossible to say that the vendee had any interest in the premises. In .the case at bar nothing was paid by McFarland, and, therefore, he has no interest in the land which may be charged with appellee’s demand. As to appellant, if he assumed to fulfill the McFarland contract, or expressly promised to pay appellee’s demand, he may be held liable therefor, but he cannot be charged except upon his own contract, express or implied. In the McFarland bond, time was made the essence of the contract, and after the time therein specified had expired, it would seem that Way might sell to any one who would purchase, and upon the old terms or new terms, without regard to the previous contract. Oliver v. Supervisors of Livingston County, 62 Ill. 528.

In any event the purchaser would only be liable to perform the contract of his vendor, that is, to convey to McFarland upon payment of the money; that is, the fund from which appellee would receive payment, and not that paid to Way by the new purchaser. There is evidence to show that Francis, through his agent, Myers, promised to pay appellee’s demand, as part of the price of the land, at the time the bond to him was executed. If such promise was made the right of an assignee of the purchase-money to maintain a lien being conceded, there can be little doubt as to its validity. But no such promise is charged in the bill, and as we understand that a plaintiff must recover according to his allegation, if at all, the decree cannot be supported in that view. Story’s Eq. Pl., § 257. It will be proper, however, for the plaintiff to amend his bill upon such terms as the district court may prescribe, and for that court to consider the sufficiency of the evidence upon that point.

The decree of the district court is reversed, and the cause is remanded.