#### Poole, Respondent, vs. Tannis, Appellant.

*October 2J¡*—

December *18, 1908.*

*Contracts: Specific performance: Vendor and purchaser: Lien: Dis~ position of cause on appeal: Correction of judgment of appellate court.*

1. Specific performance of an oral agreement for a mortgage cannot be enforced where there is failure to specify any time when the mortgage was to mature and be payable.

2. In an action to enforce specific performance of an alleged oral-agreement for a mortgage to secure moneys advanced by plaintiff to defendant, where there could be no such relief granted because the evidence failed to establish a sufficiently certain and definite contract to mortgage, the claim sought to be enforced not arising out of a transaction between vendor and vendee and the facts clearly negativing such a relationship, it is error to award plaintiff a vendor’s lien.

3. In such case under the evidence, stated in the opinion, it is *held*that plaintiff is entitled to a judgment giving her an equitable lien on the premises in question and ordering a sale thereof if the defendant failed to satisfy such judgment by payment of the amount due with costs.

4. Where on appeal the judgment of the lower court was held erroneous because it awarded a vendor’s lien instead of an equitable lien, and it was the intention of the appellate court to affirm the judgment because there was no material difference in the legal consequences of the two liens and hence the error was not prejudicial, but by inadvertence a mandate of reversal •>was entered, the appellate court, of its own motion, corrects the mandate and directs entry of judgment of affirmance.

Appeal from a judgment of the county court of Waukesha county: M. S. Gkiswold, Judge.

*Affirmed.*

*364Plaintiff alleged that she advanced $900 to the defendant, her son, to be used in purchasing a lot and in erecting a homestead, with the understanding that she was to receive a four per cent, mortgage therefor; that the money was expended, $300 in the purchase and $600 with other moneys in the erection of a house; and that defendant refuses to execute the mortgage. She prayed specific performance and other general relief. The defendant contended that the money had been given to him upon his promise to pay four per cent, therefor annually, and to furnish a home for his mother so long as she chose to remain with him. Upon the trial the finding was substantially in accord with plaintiff’s claims, but the court found that the terms of the mortgage were not defined by the agreement. In lieu of decreeing specific performance of, the alleged agreement the court adjudged that plaintiff had a lien upon the premises for $900 and interest at four per cent., and that unless the same should be repaid to her within three months after the judgment the premises should be sold to realize her claim. This is án appeal from this judgment.

Eor the appellant there was a brief by *Tullar & Locleney,*and oral argument by *II. C. Locleney.*

Eor the respondent there was a brief by *Frame & Blade-stone,*and oral argument by *H. J. Frame.*

The following opinion was filed November 10, 1908:

SiebeckeR, J.

The court’s findings upon the conflicting evidence of the parties cannot be disturbed as being against the preponderance of the testimony. The evidence presented fully sustains the court’s findings, to the effect that there was an agreement that plaintiff should advance the money to defendant and that he was to use it to purchase a lot and in the construction of a house thereon, and that the repayment of the sum advanced should be secured by the house and lot. It is established that no part of the sum so advanced to defend*365ant bas been repaid, and tbat a sufficient demand for payment bas been made and tbat payment bas been refused. While plaintiff by ber complaint demanded tbe specific enforcement of an oral agreement for a mortgage on tbe premises to secure tbis advancement, it is apparent tbat tbe evidence did not establish such an agreement because of tbe failure of tbe parties to specify any time when tbe mortgage was to mature and be payable. Tbis state of tbe facts failed to' establish a sufficiently certain and definite contract to mortgage tbe premises, and hence tbe court could not decree specific performance of it. *Buck v.*Pond, 126 Wis. 382, 105 N. W. 909. In tbe opinion of tbe trial court tbe allegations of tbe complaint and tbe facts proven to support them entitled plaintiff to recover in this action upon tbe ground tbat tbe plaintiff under tbe agreement made by tbe parties was to have a lien on tbe premises for tbe sum advanced defendant for tbe purchase of tbe lot and tbe building of tbe house, and tbe lien so agreed upon constituted a purchase-money lien. Tbe court awarded judgment to tbat effect. There is no contention in tbis case tbat tbe claim sought to be enforced arises out of a transaction between vendor and vendee and tbe facts clearly negative such a relationship. Hence tbe judgment of tbe trial court awarding plaintiff a vendor’s lien is not well founded. *Bartle v. Bartle,*132 Wis. 392, 112 N. W. 471.

However, tbe question arises whether tbe plaintiff under tbe established facts is not entitled to tbe relief of an enforcement of an equitable lien upon the premises for tbe sums she contributed to tbe purchase of tbe lot and tbe building of tbe bouse thereon, in view of tbe fact that she relied on tbe agreement tbat tbe property should stand as security for tbe money she advanced to defendant to purchase and improve tbe lot, and defendant’s refusal, after full performance of tbe agree- - ment by plaintiff, to so secure tbe money advanced. It- is shown tbat tbe money was advanced by tbe mother to tbe *366son ujjon the understanding *that its*repayment should be Secured by a lien upon the premises, though the agreement established was not sufficiently clear and definite to provide for a mortgage security which she prayed should be specifically •enforced. It is also plain that the son, through this arrangement and the confidential relationship between himself and his mother, obtained the money from her to acquire this property and that he now refuses to carry out the agreement. The mother having advanced the money on the faith of the son’s promise and the defendant having used it for the acquisition of the property gives a basis for the interposition of equity to secure her a lien on the property and to enforce repayment out of it of the sum so advanced by her. *Osgood v. Osgood,*78 Mich. 290, 44 N. W. 325; *Hughes v. Mullaney,*92 Minn. 485, 100 N. W. 217; *Leary v. Corvin,*181 N. Y. 222, 73 N. E. 984.

Plaintiff is entitled to judgment giving her a lien on the property and ordering a sale of the premises if the defendant fails to satisfy the judgment by payment of the amount due her, with costs.

*By the Oourt.*— Judgment reversed, and the cause remanded with directions to award judgment upon the findings in accord with this opinion.

The following opinion was filed December 18, Í908:

Per CueiaM.

It was not intended in this case to reverse the judgment of the trial court, but simply to point out that the plaintiff’s lien was not a purchase-money lien, as denominated by the trial court, but an equitable lien arising from the agreement under which the money was advanced. The intention of the court, after pointing out this distinction, was to affirm the judgment, because, in the situation of the present case, there was no material difference in the legal consequences of the two liens, and hence no prejudicial error. By *367inadvertence, boweyer, a mandate of reversal, instead of af-firmance, was entered, and the court now, of its own motion, •corrects the error and directs the entry of the judgment Vhich was intended.

*By the Court.*— The former judgment of this court herein is in all things vacated and set aside and the judgment of the trial court is affirmed.