Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-02-21
SUPREME COURT DECISIONS.
December Term - Nashville,
1870.
Joseph B. HeiskeII, AttOrney-Gen-
eraI and Reporter.
No. 90.
A. Denny vs.. W. L. steakely and 8. G. Golf.
OPINION. rr

A. Denny vs.. W. L. steakely and 8. C. Gof.
OPINION.
In February or March 1868, complain.
ant sold to defendant Steakely, a tract OF
land in Van Buren, county at the price OF
$4,000. Sixteen hundred dollars were
paid in Confederate treasury notes, -four
hundred dollars in postoffice draft OF
the Confederate government, and a note
of one thousand dollars TN defendant
Golf, which was given for land sold by
defendant Steakely to defendant Golf
This note was payable in current notes
of South Carolina and Georgia banks, and
was transferred to complainant in pay
ment for the land without indorse-
ment. Complainant, at the time of the
sale executed to defendant Steakely bond
for title, and in July, 1868, he executed
to him deed in fee simple.
Upon failing to collect the pOstOffice
draft or the note for one thousand dollars,
complainant, in August, 1865, filed his
bill against defendants, to enforce his
vendors lien againt the land sold by
Steakley to defendant Golf, for the salts
faction of the note for $1,000, and
against the land sold by complainant to
defendant Steakly for the salts faction of
the postoff1ce check for $400, and any
residue of the note for 81, 900 that might
not be made out of the land sold by
Steakly to Golf.
Upon the view which we take of the
law arising upon the foregoing statement
of the facts, we pass over without COM
ment the action of the court below as to
the demurrer filed, as well as the testimony
10 regard to the terms on which the post
Office check was received as payment. 1t
is only necessary to remark that complain
ant realized nothing from the check, and
that it proved to be of no value. We
may further remark that whilst there
is some conflict in the testimony
as to whether complainant received
and defendant Steakly paid, the note of
1000, with the understanding of both
that complainant was to have lien on
both tracts of land, there is none as to
the fact that complainant made no express
waiver of his vendors lien.
1t is too well settled to require the
citation of authorities, that whenever land
is sold on time, or when the price is not
paid down, the vendor has an implied lien
for the purchase money, whether the legal
title is conveyed or nOt-unless he ex-
pressly valves his lien, or does SO, by
implication, in taking other security for
the unpaid purchase money. In the case
before US complainant received the post
office check and the EOte of $1,000, not
by way of security, but in payment of the
residue of the purchase money. The
taking of the check and note being only
a mode of payment was no waiver, either
express or implied, of his lien.
Marshall VS.. Christmas, 8 Hum.
GIG. l Lehp. and Sep. 1872. 1t fol-
lows that complainant had lien on the
land sold to defendant Steskly for the
amount of the pOstoltiCe check and the
thousand dollar note, which he could en-
force upon his failure to receive payment
thereof. He also had lien for the sat-
isfaction of the thousand dollar note out
of the land sold by Steakly to Golf, the
legal title to said land NOT having been
conveyed to Golf. Nor is the lien OF
complainant lost or affected by his con-
veyance in July, 1868, If the legal title
to defendant Steakly O, the land sold to
him by complainant. \ thing was then
said or done indicating waiver of his
lien, nor does the recital in the deed that
the purchase money was paid amount 10
a waiver, as the fact is made to appear
that the purchase still remains due.
Complainant therefore has a right tc
have both tracts of land subjected 10 sale
for the residue of the purchase money
the proceeds Of the sale of the
tract sold by Steakly 10 G5ff, sp,
piled to the satisfaction of the note
for 81, OOO-and the proceeds of the
other tract to the satisfaction of the $40C
in the check, and any residue on the note
for s., 0O0nOt made out Of the other tract
But before any decree cen be made fol
the sale of the two tracts CT land, it vii
be necessary to ascertain the value of the
Post office check, treated as Confederate
money, at the time the same was paid L
complain AIT, and also, the value of the
note for 1000 payable in current baul
notes oo the State of South Carolina ant
the State of Georgia, or its branches, a
the time said Dote was payable.
The decree below will be reversed 81
far as it c nficts with this opinion, ant
the cause remanded to be proceeded in a
herein indicated. The costs of this cour
viii be paid by defendant S:eakly.
NICHOLSON, Judge.
A true copy: F. c. DUNNNGToN, Clerk
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