Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-05-05

the facf tnst portion Of the purch7es moaPy- &
the tot rena ned due 10 compiaiDaEis and also
knosIedge of the exis enee OF the lien, to secure
2 h payment tbereof, andt tbey. re5pec i7sly
hed said Let ia subserviepcs to, sud eonsisienty
vi q, the right ofthe conplainsnt and uot adverse
thereto; and thar Ia that In the surnl-r OF 1851
Cheatham had promised to pay cernpIainart the re
maindsr Of said purchase mouey. L 10 further
legged ihai the note for S325G0s i'll rsmans u1pait =
and complaiRspt ftstes that be demanded pa;s
nent Of said note l'ns siaee and payment vas re-
fused"
The bill seeks to subject said ot to The satisfac.
ton Of the amount of said note By enfJrci1g the
lien which, l. is slrg d, rsssrved fer ths sele
benefit Of the couplaiuan'. Purcell, Chpstham, aud
KirkmsD are made fsniants 10 the bill. The de-
uurrer TO the bill is Sled On behalf Of Chestham
alone
Taking the allegations Of the bin to be true, for
the presen', th nix the Chancellor erred in so "
inR the d. ndrrer. --..
Thu pretended release Of Kirkmsn Eight be left
out Of view as entitled 70 clnsiierat on in the
| determination Of the main question Intended TO be
raised by demurrer . Upon the facts charged Ia the
bill, the release is mere nullily. Kirkman bsld
be lien as a naked trustee for the complainant n
lien cluid have possibly sIisied in his own favor.
flr the simple rras' tLat, the arrangement stat,
ed IN the bill his claim for the purchase money Of
he lot, was fully sa isGed and ex iagu-hed at The
.me Of the sale. and Chesibap, is subs
tally charged, having knoEledge 4 the facts,
| not avail himself Of he release for aay purpose
How it might be, il Cheaiham occupied ,he foaiirg
Of q bona fds purchaser, without notiee need not
| be stated. It's clear. how yer, ihe Kirkmsn is q
proper Tar y defendant; either for the purpose Of
having the release auBulled; for the purpose OF
| having decree against him for he amount Of the
unpaid purchase money, which, By bis deed, be
ackno EIedges the reception Of from Ca hsm For,
although he had no riebito eeeve he money, yet,
/ having dOue SO, he mus, be sfed ss hoiui4s - n
trust for complainant Aud his ark, owlo iss7,.rs
beng under seal, sould be estoppel upon him at
Law 10 deny The fact Of having received IN. money,
aud he viii be alike pTecladed ia equi y for he
not in the latter forum, be heard aege, that he
made the release WitsO out e0Hsiderai n, Eith view
to cut of the lien, for this Wouli have b, en- up a
his part, palpsble fraud upon the rights Of The
complainant, which be will not be heard to insist
upon, in exoneTation Of his liability.
But the Chancellor allowed the demand, as is
stated Ia the argument the ground u a. the com
pIainants equiy was barred by ihs statute Of iimi-
tatiOns This conclusion is erroneous We think for
several reasons.
Thai it was competent for the parties, by mu'u3l
agreement, create the lein declared in the deed
from Kirkm TO Purcell, for The benefit Of the COM
plsinsnt, admits Of doub-. upon general princi-
pies of Law. Bat the exact nature and gal efTsct,
of lien thus created, 10 he we'll defined,
in any of the books TO which have had access It
certainly is not in all respssis equ valent TO mirt
gage; beeau'e the legal estate pa1sss By th9
veyapce, and rests in TIE deed Ard yet, it mus
possessing greater efficacy than the ven 8 lien,
properly so called. The latter-Wh re the legal |
estate has been conveyed 10 the vender is the
creature Of q court of equity. Il exists only by /
implication Of law; and is in tie nature Of q
only end not sspec fc lien upon the land conveyed,
until bill has ben filed 10 enforce il. 10 Hump
81
But, an exprsss lieu created by contract, an1 re-
served on the face Of the conveyance though not I
a mort gage-must at least be regard, d as a specific 4
-
the estate thus conveyed; aud sfIecting ell Ter
sons who nsy subsequently come into possession /
Of the estate, with notice, eIhtF actual CT eonstruc
tive Of its existence This necessarily be 50;
for even the implied lien Of the vendor exi ts, not
only against the purchaser aud his heirs, but also
against all persons claim Eg UndCr n, will notics
OF it, though they be purchasers for n yalushe
sidera'ion But 10 implied lien does / OF exist Z
sgains bona dC purchaser without notice; Esu her
will II be allowed prevail against credf T, who /
may have acquired Judgment or ezecati n lien .
upon the JrOp,Tiy, before bill has focB by [
the vendor TO enforce his lea. 10 lluUph 57l, 80
But not 81 Of the hep created by contract, in the
present lsC; if the conveyance rese1vug the lien
has been iuyTeg stored such lien will be op' ra'ivs
against creditors, bono q purchasers, aud other
persons, Mi heat regard 10 a-tusl nctice Il is
true, iu me p-es n case that The deed ffJm KIRK
man to Purcell, reseUT ng the l. n, Was not regis
tered until sftT the sale by Northrop 0 Chea ham
But this is Of no cons Gu nee, in this particular
case DEC 4u5e the uHtA rum u SEoFt"du
expressly recognizes the existence OF he lien deelIT~
Ell IL XII kmsns del.
If this view, of the nature and efec, Of The lieE
in question: be coJreo, 1t certain ly es rO create
betSesn the parties TVlaiicn similar to tha Of
mortgage as regards the ap leati n Of the statute
of limitations. The relation f the pnrehs or Is
more anal US TO that Of trus ee, 0y Sxpres' con
trsc, who m disc aim the 10 and af rr such (
disclaimer, ami kn Wedge he Of b ought hom
to erstui que trust may cain aud bold ad e'r l. to
hia. TbIs is puIIDg the Gaze il ne o os f"or
ahle point OF h3 defendant, Cnea ham.
Blu this will not avail ham; ss the preeuDprion OF
law H. thai he is holding und r, n c." ten y
with. be rusr, uu il the contrary . tfirmtnVety |
shown by Tim Upon this pre N i0u one, Ihs
complainant DiEh hav saf l. r ,ts in g. sT'r g
tie murrer witb,u the aid ne q ma " |
al esat.Ou in ihe brl, hn 'he driendar' ID ED
and was holding in su o-di' alton 20 his lien
Il is slog ther mistaken conc u-i0n, hat un-
der the nd section of the act Os 1879 the cIm,
plsinanls squirS is barred, By The mere laI Sc I
seven Years b'forp firg his bill, irTesp c i've Cf
ar utder that section, The pOssessi mus be. IN
legal cont mplsiion. adverse Such has hee1 the
unifcrm course of decision since 'he Of Dyche
VS.. G ss, 9 Yerg Add the case relied on (Ray vs.
Goo ImaD Sneed 5S6 when car, fully examined,
will be found to he in accord lnce will previous adj
publications upon the statute.
But again The case of Ray vs. Goodman settles (
that the purchase money must have been due seven
years before the filing Of the bill, 10 enforce the
pay uent thereof, by sale Of The land
In other word cause of action must have eE-
isted for the tull period of years before suit
brought, which nigh have been asserted a. any
time within that period; in order to create q bar
This cannot be predieaed Of the case Under eOnsid
Grafton from the face Of the bill.
The notes were payable in stone work, 10 he
ne a. any time eIea for after the lst of Juy 1919
We take it, TO be too clear 10 require either au-
thority or argument that no &C ion could have been
maintained On the notes, wi hout previous request
to DO the work stipulated 10 Re done. Until such
demand or request, made and refused, there was no
default or breach Of contract, on the part Of the
maker Of the notes, aud, consequently, right or
cause Of action on the part Of the complainant.
The principle that in contracts 70 me payment Of
money, on demand, the brirgjug the suit s all the
demand required, he's no application to case like
the present
From the statement in the bill, that payment was
demanded ''long sDo'," and refrsel, it c,nDot be
inferred that it was demanded more than seven
years before suit This would be 20 reverss the
rule, that upon demurrer, every reasonable pre-
sumption is to be made in favor OF rather than
against the bill. Il is only in where it clear
" appears from the face Of The bill that the csm
plauauCs equity is barred that the bill will be dis
missed upon demurrer, for that cause
Decree reversed and cause remandsd
MeKIsNEY.
A correct copy, J. P. CLARK, Clerk.