#### Halvorsen and wife, Respondents, vs. Halvorsen and another, Appellants.

*November 19*

December *11, 1903.*

*Equity: Cause of action: Vendor’s Hen: Consideration: Parol evidence.*

1. An action in equity to enforce the equitable right to a lien for unpaid purchase money on realty conveyed in consideration of support and maintenance of the grantors in old age, is not a suit to enforce a parol trust in land, nor is it an action for a forfeiture of the title for breach of condition subsequent.

2. The true consideration for a conveyance of land can always be inquired into by parol.

3. A vendor of realty has an equitable right to have the unpaid consideration therefor, by the action of a court of equity, made a lien thereon, and to have the use of its jurisdiction to enforce the same as justice may require.

4. The-equitable right to a vendor’s lien is not an interest in land in advance of the judgment of the court creating it. It is a right merely to demand the use of equity jurisdiction to enable the vendor to acquire an interest.

Appeal from an. order of the circuit court for Crawford county: Geo. Clementson,, Circuit Judge.

*Affirmed.*

*53Action to acquire and enforce a lien on realty. The facts ■set forth for a cause of action are these: In 1885 plaintiffs, who were husband and wife, being possessed of a farm of 200 ■acres particularly described, and its belongings, the accumulations of a life of industry, and being too old and infirm to longer work such farm as they customarily had, made a conveyance thereof to their son Gilbert, one half of the property to be his in consideration of' services rendered, and one half of the homestead land and one half of the personal property ■to be held by him in trust to convey the same to such person as they might thereafter direct, for their support and maintenance in their old age. July 9, 1889, Gilbert executed the trust by conveying the trust property to his brother Edward, the sole consideration being that the latter should support and maintain plaintiffs on the farm and in the house thereon during the rest of their lives. Edward took possession of the property so conveyed, and carried out his agreement in respect to the maintenance of the old people, till September 21, 1900. On that day, pursuant to-an agreement between himself, the plaintiffs and his brother George, and the wife of the latter, the defendant Lorine, to the effect £hat George should take the property conveyed to Edward as aforesaid and assume all his obligations in regard to the maintenance •of the plaintiffs, a conveyance was so made to George, taking title not only to all the property conveyed to Edward as aforesaid, but also to all his additions made by the latter thereto, and the growing crops on the farm, rendering no consideration tlierefor in addition to assuming the obligation to maintain the plaintiffs as aforesaid, except the sum of $100, which was raised by mortgage upon the property and paid to Edward on account of such growing crops and additions. George and his wife faithfully carried out their contract in regard to plaintiffs till George died, in September, 1901. He left surviving him his said wife and a minor daughter, the defendant *Laura.-*Shortly after his death his widow *54compelled tbe plaintiffs to leave tbe old borne, since wbicb time sbe bas prevented tbem from returning thereto and bas wholly neglected and refused to carry out tbe aforesaid contract. Tbe $100 mortgage against tbe property is wholly unpaid. Tbe prayer for relief is that tbe amount necessary to-support plaintiffs during tbe remainder of their days be ascertained and adjudged to be a lien upon tbe land involved prior to any claim of tbe defendants, and that such lien be enforced by a sale of tbe property, tbe proceeds of tbe sale, so far as necessary, to discharge such lien and tbe costs of tbe litigation, to be devoted thereto, and tbe money belonging to plaintiffs to be paid to tbem or devoted to their support and maintenance under tbe direction of tbe court. Defendants demurred to tbe complaint for insufficiency. Tbe demurrer was overruled and defendants appealed.

For tbe appellants there were briefs by *Skaar & Bosshard,*and oral argument by *Otto Bosshard.*

For tbe respondents tbe cause was submitted on tbe brief of *O. B. Thomas.*

Mabsiiall, J.

This is not a suit to enforce a parol trust in lands, as appellants’ counsel seem to suppose; hence tbe argument that tbe agreement under wbicb Gilbert took title to the property in question, or tbe agreement under which George took and held tbe same at tbe time of bis death, is void under sec. 2302, Stats. 1898, does not need attention. Neither is it an action for a forfeiture of tbe title to realty for breach of condition subsequent under tbe rule which controlled in *Glocke v.*Glocke, 113 Wis. 303, 89 N. W. 118, which rule counsel on both sides seem to think must be considered. Therefore we need not spend time discussing tbe question of whether tbe complaint states a cause of action thereunder. It is an action in equity to enforce tbe equitable right to a lien upon tbe land in controversy for tbe unpaid purchase price thereof. That is plain.

*55Tbe only trust, strictly speaking, that plaintiffs sbow was created or attempted to be created, was involved in tbe conveyance of tbe property by plaintiffs to tbeir son Gilbert. That was fully executed when be conveyed tbe property to bis brother Edward. That took tbe matter out of tbe statutes of frauds, as. they deal only with executory contracts. ■ When tbe latter conveyance was made, and when tbe conveyance was made by Edward to bis brother George, tbe consideration agreed upon was no different in legal effect than it would have been bad tbe agreement been to pay for tbe land in money at some future time. Tbe only element of trust in tbe transaction was tbe fact that plaintiffs trusted tbeir children to pay for the property according to contract, — the element of trust that is involved in any ordinary transaction where one sells property to another, trusting him, without security to pay therefor at a future time.

Erom tbe preceding it will be seen that we must answer these questions: Eirst, may a person prove by parol tbe consideration for a conveyance of realty and establish a legal obligation to pay tbe same ? Second, has a vendor of realty an equitable right to have tbe unpaid consideration therefor, by tbe action of a court of equity, made a lien thereon, and to have tbe use of its jurisdiction to enforce tbe same as justice may require? Both of such propositions need hardly more than be stated as a basis for tbe decision of tbe ultimate question here presented. Both are ruled in respondents’ favor by numerous decisions of this court, and by elementary principles.

Tbe true consideration for a conveyance of land can always be inquired into by parol. Eor examples: A deed absolute in form may be shown to have been given in fact to secure tbe payment of a debt and to be a mortgage (McCo*rmick v.*Herndon, 86 Wis. 449, 56 N. W. 1097). Any agreement made prior to or contemporaneous with tbe conveyance of land and in respect thereto, not involving tbe ordinary *56covenants of title, may be shown by parol. *(Hahn v. Doolittle,*18 Wis. 196; *Green v. Batson,*71 Wis. 54, 36 N. W. 849.) Where land, is conveyed, the deed containing language to the effect that the property is free and clear of all incumbrances except a certain mortgage indebtedness, specifying the amount thereof, no mention being made in the instrument or any other writing that the vendee agreed to pay off such indebtedness as part of the purchase price of the property, such an agreement may be shown by parol and enforced by the person for whose benefit it was made. *Perkins v. Mc-Auliffe, 10*5 Wis. 582, 587, 81 N. W. 645. In the latter case many adjudications are referred to, holding that the consideration of a conveyance of land may be established by parol and the rights of the parties protected accordingly, when the verbal agreement will not be inconsistent with the consideration expressed in the deed, though such expressed consideration and the verbal agreement may differ.

On the second question this court has spoken in the affirmative in many instances. *Tobey v. McAllister,*9 Wis. 463; *Wickman v. Robinson,*14 Wis. 493; *Crowe v. Colbeth,*63 Wis. 643, 24 N. W. 478; *Berger v. Berger,*104 Wis. 282, 80 N. W. 585. In *Orowe v. Oolbeth*both of our propositions were involved. It was held that though a deed acknowledge full payment, it is competent for the vendor to show by parol that payment was only partial, that there was an agreement to make a further payment in the future, and to enforce such agreement by means of equity jurisdiction to acquire a lien upon the property and foreclose the same.

The idea advanced by counsel, that the effect of this suit, if maintainable, is to recognize the creation by plaintiffs and their sons Edward and George of an interest in land in plaintiffs’ favor, or a reservation of such an interest, by parol, was fully met in *Berger v. Berger.*The equitable right to a vendor’s lien is not an interest in land at all. It is a right merely to demand the use of equity jurisdiction to enable the *57vendor to acquire an interest. There is no interest in the land in snob a case, possessed by the vendor, in advance of tbe judgment of the court creating it. Thus, the court creates the lien, so to speak, not the parties to the conveyance .of the land. The rule was thus stated in *Berger v. Berger:*

> “The conveyance of land by deed passes the entire title, legal and equitable, to the vendee, subject to the vendor’s ■equitable right to resort to it to collect unpaid purchase money, saving, however, the rights of innocent third persons. Except as otherwise provided by statute, and saving the rights of innocent interveners for value, the vendor may demand the exercise of the power of a court of equity to lay hold of the property and subject it to the payment of the purchase-money claim.”

There is no other question, suggested by counsel for either party, that need be mentioned. The complaint states a good ■cause of action in equity to obtain a vendor’s lien upon the land involved; hence the demurrer was properly overruled.

*By the Court.*— The order is affirmed.