Lusk vs. Hopper, trustee, &c.

John Gardner's deposition was taken, and he proves that the debt was paid to him in the fall, 1858; that Alex. Lusk then discharged it; but he was then in Missouri. He does not say that Lusk was there, or paid it to him; but he says the money was paid to Pearl, his agent, and concludes by saying he knows nothing of his own knowledge in relation to the controversy. His statements, therefore, as he himself shows, were made upon information received from others.

Bettis states he was the son-in-law of Pearl, and his agent; that he renewed the note once or twice for him; had examined the note on which this suit was brought, and the original consideration of said note, as he understood from Pearl and the Lusks, was the land sold by Pearl to Alex. Lusk; and in both the depositions given by Alex. Lusk he states emphatically that he never borrowed any money to pay off the note held by Gardner, due 15th of October, 1858, and never paid it; but that all he did was to renew the note and make the debt payable to the party to whom the holder thereof required him to give it.

The theory of appellees, therefore, that the debt for the land has ever been paid, is not sustained by the weight of evidence; but the preponderance in any view of it is decidedly against them.

Pearl, by the assignment of the notes for the purchase money to Gardner, transferred to him his equitable lien on the land for their payment, and when he again became the holder of the debt, the equitable lien followed it in his hands, as it had neither been impaired nor extinguished. (Edwards vs. Bohannon, 2 Dana, 98; Honore's ex'r vs. Bakewell et al., 6 B. M., 67; Ripperdon vs. Cozine, 8 B. M., 465.)

And as Pearl had not conveyed the land to Lusk, his lien was not extinguished by renewing the note or notes

Lusk vs. Hopper, trustee, &c.

for the unpaid part of the purchase money, with personal security. (Rennick vs. Hendricks, 4 Bibb, 303; Honore's ex'r vs. Bakewell, &c., 6 B. M., 67.)

But it is contended that S. Lusk has not paid the debt to Pearl; and, until he makes full payment, a court of equity will not subrogate him to the rights of the creditor. That is the rule, because, until payment is made, he is regarded as in default in respect to the creditor.

But Pearl, by his answer to the cross-petition of Lusk, asserted his lien, and prayed for the enforcement of it against the land, which he, in equity, had a right to do, and which he, in good conscience, ought to have done to exonerate the surety, especially as his principal was insolvent. Besides, A. Lusk had not acquired the legal title to the land when he made the assignment to Hopper, and Hopper took the deed with actual notice that Lusk only held an equitable interest in it, for the deed recites that he held the title bond of Pearl for a conveyance; and neither he, nor those he represents, can complain if the land should be subjected to the payment of the purchase money due to Pearl, before he or his representatives shall be compelled to part with the legal title, instead of compelling the surety to pay his debt, which must result in loss to the surety, who looked to the land for his indemnity when he signed the note, and to the benefit of the other creditors of A. Lusk, who have no legal or equitable claim on the surety. And, although S. Lusk, as surety, could not be subrogated to the lien of Pearl on the land until he had paid the debt to the creditor, still, if he had paid the debt, he would have had the right to subrogation; and, as the suit was in equity, it was proper that the chancellor should have enforced the lien to save a multiplicity of suits, and, especially, as the creditor asked that it should be done.

Williams vs. Abrahams.

Wherefore, the judgment is reversed, and the cause remanded, with directions to apply the proceeds of the land, or enough thereof to pay the debt, to Pearl's representative, and for the distribution of the residue thereof to the payment of the other creditors of A. Lusk, pro rata, and for other proceedings consistent herewith.

CASE 57-PETITION EQUITY-FEBRUARY 4.

Williams vs. Abrahams.

APPEAL FROM GRANT CIRCUIT COURT.

1. The vendor is not entitled to a judgment for the foreclosure of an alleged lien on land, when in his petition it is not alleged what were the terms of the contract of sale between the parties, nor that he is able to convey according to the terms of the contract, nor that he has the legal title to the land.

2.

The tender of a deed which fails to convey in compliance with the contract of sale, or which fails to give a sufficient description of the land, is not good.

Williams vs. Abrahams.

CHIEF JUSTICE PETERS DELIVERED THE OPINION OF THE COURT:

This action was brought in ordinary upon a note for the last installment of the price of land sold by appellee to appellant, situate in Grant county.

The petition contains two paragraphs, the first of which sets out a cause of action upon the note quite sufficient to authorize a personal judgment against the obligor.

The second paragraph is drawn with a view to obtain a judgment to enforce an alleged lien on the land for a part of the price for which the note was executed.

A general demurrer was put into the petition by appellant, which the court overruled; and, failing to make further defense, a personal judgment was rendered against him for the debt, and also a judgment to enforce the lien, and subject so much of the land as should be required therefor to the payment of the debt; and from that judgment Williams has appealed.

The facts alleged in the petition are sufficient to sustain the judgment in personam against appellant for the debt, but wholly insufficient to authorize a judgment for the enforcement of a vendor's lien. It is not alleged in the petition what were the terms of the contract of sale "between the parties; nor is it alleged that appellee is able to convey according to the terms of their contract, nor that he has the legal title to the land. He tenders what he calls a deed for some land in Grant county, Kentucky, adjoining the town of Crittenden, supposed to contain thirty-three and one third acres, without metes or bounds, and without any other description of the land, except a recital that he purchased the land of Mary F. and Elizabeth Bagby, now living in the county of Henry, which is in effect a reference to those ladies in Henry county to ascertain where the land is located, if a more

Williams vs. Abrahams.

particular description of it should be desired than that it was in Grant county, and in some way adjoined Crittenden; and although the deed recites from whom the grantor purchased the land, no reference is made to a conveyance from his vendors; nor is it alleged that they had any title to the land, or had ever conveyed it to the grantor.

Besides, the instrument tendered as the deed is a mere covenant that, upon the payment of the money due on said note, appellant and his heirs shall have and hold said tract of land with, &c., and is wholly insufficient to vest him with the absolute, unconditional fee simple, and there is no averment in the petition that said conveyance is in accordance, and a compliance, with the contract of sale.

As, therefore, the allegations of the petition are wholly insufficient to authorize the sale of the land for the satisfaction of the debt, the judgment for the sale thereof is reversed, and the cause remanded, with directions to permit appellee to amend his petition, if he should within reasonable time move to do so, and for further proceedings consistent herewith.