This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Upon the conveyance of land, a lien on the land is, in England and a number of states, recognized in equity as arising by implication of law in favor of the vendor for the purchase price, so far as this remains unpaid.77 In other jurisdictions, however, the existence of such a lien is denied.78 In the United States courts the lion is regarded as existing in a particular state only when it is recognized by the laws or courts of such state.79 Even in those states where the lien is recognized, it is not favored by the courts, it being regarded as inconsistent with the policy of the registration laws, which is adverse to secret equities, and the vendor being in a position, by a mortgage or express reservation of a lien, to protect his interests otherwise.80
75. See ante, Sec. 204.
76. Freeman, Cotenancy, Sec. 507; Baltimore & O. R. Co. v. Trimble, 51 Md. 99; Dobbin v. Rex, 106 N. C. 444, 11 S. E. 260; McCandless' Appeal, 98 Pa. St. 489; Dunsbee v. Dunshee, 243 Pa. 599, 90 Atl. 362; Jameson v. Rixey, 94 Va. 342, 64 Am. St. Rep. 726, 26 S. E. 861.
77. Mackreth v. Symmons, 15 Ves. 329, 1 White & T. Lead Cas. Eq. 447; Crampton v. Prince, 83 Ala. 246, 3 Am. St. Rep. 718, 3 So. 519; Shall v. Biscoe, 18 Ark. 142; Salmon v. Hoffman, 2 Cal. 138, 56 Am. Dec. 322; Avery v. Clark, 87 Cal. 619, 22 Am. St. Rep. 272, 25 Pac. 919; Trustees of Schools v. Wright, 11 I11. 603; Fouch v. Wilson, 60 Ind. 64, 28 Am. Rep. 651; Kendrick v. Eg-gleston, 56 Iowa, 128, 41 Am. Rep. 90, 8 N. W. 786; Magruder v. Peter, 11 Gill. & J. (Md.) 217; Carr v. Hobbs, 11 Md. 285 ; Peters v. Tunell, 43 Minn. 473, 19 Am. St. Rep. 252, 45 N. W. 867; Marsh v. Turner, 4 Mo. 253; Corlies v. Howland, 26 N. J. Eq. 311; Seymour v. McKinstry, 106 N. Y. 230,
12 N. E. 348, 14 N. E. 94; Anketel v. Converse, 17 Ohio St. 11, 91 Am. Dec. 115; Craggs v. Earls, 8 Okla. 462, 58 Pac. 637; Kent v. Gerhard, 12 R. I. 92, 34 Am. Rep. 612; Marshall v. Christmas, 3 Humph. (Tenn.) 616, 39 Am. Dec. 199; Howe v. Harding, 76 Tex. 17, 18 Am. St. Rep. 17, 13 S. W. 41; Madden v. Barnes, 45 Wis. 135, 30 Am. Rep. 703.
78. Atwood v. Vincent, 17 Conn. 575; Simpson v. Mundee, 3 Kan. 172; Philbrook v. Delano, 29 Me. 410; Ahrend v. Odiorne, 118 Mass. 261, 19 Am. Rep. 449; Ansley v. Pasahro, 22 Neb. 662, 35 N. W. 885; Womble v. Battle, 38 N. C. 182; Frame v. Sliter, 29 Ore. 121, 34 L. R. A. 690, 54 Am. St. Rep. 781, 45 Pac. 290; Kauffelt v. Bower, 7 Serg. & R. (Pa.) 64, 10 Am. Dec. 428; Hiester v. Green, 48 Pa. St. 96, 86 Am. Dec. 569; Wragg's Representatives v. Comptroller-General, 2 Desaus. (S. C.) 520. See Arlin v. Brown, 44 N. H. 102.
In Georgia, Vermont, Virginia and West Virginia it has been abolished by statute. 1 Stimson's Am. St. Law, Sec. 1950.
The lien does not exist if the price which is to be paid for the land is not exactly ascertained, as when there is a sale of land and personalty together, and it does not appear what part of the consideration is to be paid for each.81 And so it does not arise in the
79. Bayley v. Greenleaf, 7 Wheat. (U- S.) 46, 5 L. Ed. 393; Chilton v. Braiden's Adm'x, 2 Black (U. S.) 458, 17 L. Ed. 304; Cordova v. Hood, 17 Wall. (U. S.) 1, 21 L. Ed. 587; Rice v. Rice (C. C.) 36 Fed. 860.
80. Various explanations of the origin and basis of the doctrine of the lien are given. Thus, it is said to rest on "natural equity" (4 Kent's Comm. 152), an implied trust in favor of the vendor (Mackreth v. Symmons, 15 Ves. 329; 2 Story, Eq. Jur. Sec. 1217; Blackburn v. Gregson, 1 Brown Ch. 420. Contra, 3 Pomeroy, Eq. Jur. Sec. 1250, note; Ahrend v. Odi-orne, 118 Mass. 264, 19 Am. Rep. 449), and the desire of chancery, in the time when land could not be subjected to a simple contract debt, to evolve some device by which land could be made liable in the hands of the purchaser for the unpaid price (notes to Mackreth v. Symmons, 1 White & T. Lead. Cas. Eq. 500; Gray, C. J., in Ahrend v. Odiorne, 118 Mass.
261, 19 Am. Rep. 449; Editorial note, 9 Columbia Law Rev. 261. Contra, 3 Pomeroy, Eq. Jur. 1250). Mr. Pomeroy considers that it is merely the application of a general judicial conception that the thing sold constitutes, to some extent at least, a fund for the payment of the price, a conception which was not applied to chattels because they were of less importance than land, and, furthermore, were articles of commerce, the transfer of which it was undesirable in any way to hamper. See 3 Pomeroy, Eq. Jur. Sec. 1250. Another suggestion is, that the doctrine involves the application of "a broad and somewhat indefinite principle, that one who has parted with money or property expecting a specified return should be assured either that return or the redelivery of what he parted with." Prof. Samuel Williston in 19 Harv. Law. Rev. at p. 557.
81. Stringfellow v. Ivie, 73 Ala. 209; Hanvey v. Gaines, 181 Ala.
3 R. P. - 31 case of an unliquidated claim,82 as when the purchaser agrees to support the vendor during his life,83 or to pay off incumbrances or erect buildings,84 or to convey certain land or deliver certain chattels to the vendor.85 But if the price to be paid is specified, it is immaterial that it may be or is to be paid by the delivery of particular articles or class of articles, or by the rendition of services.86 And even without any specification of the price in terms of money, if the consideration for a conveyance is the conveyance of other land and also the payment of money, there is, it seems, a lien for the amount of such payment.87
288, 61 So. 883; Gard v. Gard, 108 Cal. 19, 40 Pac. 1059; Warner v. Bliven, 127 Mich. 665, 87 N. W. 49; Griffin v. Byrd, 74 Miss. 32, 19 So. 717; Peters v. Tunell, 43 Minn. 473, 19 Am. St. Rep. 252, 45 N. W. 867; Snyder v. Snyder, 115 N. Y. Supp. 993; Sutton v. Sutton, 39 Tex. 549; McCandlish v. Keen, 13 Gratt. (Va.) 615, 629. In Kentucky there is, in such case, a lien upon the land for the entire purchase price. Doty v. Deposit Building & Loan Ass'n, 103 Ky. 710, 43 L. R. A. 551, 46 S. W. 219, 47 S. W. 433. And see Nesbitt v. Chesebro, 89 Kan. 863, 133 Pac. 585; Editorial note 13 Columbia Law Rev. 150.