Mooney, Richard F.

English

Santa Ana, Manuel María de, 1820-1894

Biblioteca Virtual de Prensa Histórica (Virtual Library of Historical Newspapers)

La Correspondencia de España  : diario universal de noticias: Año XXXVIII Número 10608  - 1887 abril 8

La Correspondencia de España  : diario universal de noticias: Año XXXVIII Número 10842  - 1887 noviembre 28

Marquette University Law School

Marquette Law ReviewVolume 17Issue 4 June 1933 Article 14Equity - Contracts for the Sale of Land - Vendee'sLienRichard F. MooneyFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationRichard F. Mooney, Equity - Contracts for the Sale of Land - Vendee's Lien, 17 Marq. L. Rev. 303 (1933).Available at: http://scholarship.law.marquette.edu/mulr/vol17/iss4/14RECENT DECISIONSering an agreement in addition thereto, nor embodying a new obligation or con-tract to do something in relation to the thing delivered. Wigmore on Evid., 2dEd., § 2432; Greenleaf on Evid., 16th Ed., p. 435; Seeger v. Manitowoc SteamRoller Works, supra. In the principal case much reliance is placed on the rulethat, to hold an instrument in the form of a receipt to be contractual in nature,it must be shown that it was drawn with such care and precision that by itsterms it represents an agreement between the parties and defines their con-tractual relations with reference thereto. In view of this rule, the instrument wasconsidered so informal, incomplete, and lacking in language expressing orattempting to express any contract, promise, or agreement, that it could only bea receipt, not a contract; and parol evidence to vary or contradict it admissible.CARL HOFMEISTER.EQUITY-CONTRACTS FOR THE SALE OF LAND-VENDEE'S LIEN.-An action wasbrought by the plaintiff vendee under two contracts for the sale of land to re-cover damages against the defendant vendor for the breaches of the contracts,and to have said damages declared a lien on the lands. In the original opinion,243 N.W. 492 (1932), it was held that the damages found by the trial court, to-gether with interest thereon and costs, should be a lien on the lands describedin the land contracts. These damages amounted to some $65,000; the plaintiffhad paid only $6,885 on the contracts. 'Motion for rehearing granted. Held,former opinion modified. The vendee's lien is limited to the amount paid onthe contracts, and does not cover loss of probable profits. The court, however,allowed the plaintiff to elect whether to take judgment for damages without lienor waive every other right and have a lien for the recovery of the paymentsmade. Mistwald-[Vilde Co. v. Armory Realty Co. (Vis. 1933) 246 N.W. 305.The vendee's lien before conveyance under a contract for the sale of landhas been held to be the exact counterpart of the vendor's lien after conveyance,or more correctly, the grantor's lien. 3 Pomeroy's Equity Jurisprudence, 3d Ed.,p. 2536, § 1263; Wickman v. Robinson, 14 Wis. 535 (1861); Flickinger v. Glass,222 N.Y. 404, 118 N.E. 792 (1918). The grantor's lien is given to secure thepayments due him on the purchase price, De Forest v. Holiim, 38 Wis. 516(1875) ; Willard v. Reas, 26 Wis. 540 (1870), and does not extend to damagesfor breach of contract. 3 Pomeroy's Equity Jurisprudence, 3d Ed., p. 2508, §1251; Wright v. Buchanan, 287 Ill. 468, 123 N.E. 53 (1919). Likewise, the yen-dee's lien before conveyance embraces only payments made to the vendor underthe contract, and does not extend to damages for breach of contract, includinglost profits. Holden v. Efficient Craftsman Corp., 234 N.Y. 437, 138 N.E. 85(1923); Elterinan v. Hyman, 192 N.Y. 113, 84 N.E. 937 (1908). The vendee'slien has been based upon several different grounds. It has been held that, asthe vendee makes payments under the contract, he becomes pro tanto theequitable owner of the land, and the vendor holds so much of the land as trusteefor the vendee. From this trust springs the vendee's lien. Rose v. WVatson, 10H.L. Cas. 672 (1864); Elternian v. Hyman, 192 N.Y. 113, 84 N.E. 937 (1908).In view of the doctrine of equitable conversion, whereby the vendee becomesequitable owner at the execution of the contract, the reasoning used in thesecases seems superfluous. Other courts have held that the basis of the lien isthe doctrine of equitable conversion. 3 Pomeroy's Equity Jurisprudence, 3d Ed.,p. 2536, §§ 1263, 1261. The lien under these two doctrines depends upon thecontract. However, many courts have disregarded these theories, basing the lienTHE MARQUETTE LAW REVIEWon a quasi contractual right, independent of contract. Upon breach of the con-tract by the vendor, the vendee is entitled to rescind the contract; and upon hiselection, a lien arises to secure his quasi contractual right to recover the pay-ments made. Wickman v. Robinson, supra; Taft v. Kessel, 16 Wis. 291 (1862);Richer v. Carlson, 136 Wis. 353, 117 N.W. 815 (1908) and Durkin v. Machesky,177 Wis. 595, 188 N.W. 77 (1922), where lien was given vendee, although thecontract was void; 8 Col. Law Rev. 571 (1908) ; 29 Mich. Law Rev. 1103 (1931).Under the principal case this seems to be the controlling theory in Wisconsin.The case of McLennan v. Church, 163 Wis. 411, 158 N.W. 73 (1916), where thevendee, suing for specific performance, was granted a lien on the land for pay-ments made and for damages, is expressly modified. The lien at most extendsonly to payments made, with interest and the value of the improvements madeon the land, Schneider v. Reed, 123 Wis. 488, 101 N.W. 682 (1904) ; and it canonly be enforced if the vendee waives all his other rights, i. e., to sue for specificperformance or breach of contract, and iues only to recover the purchase moneypaid, in effect rescinding the contract. This is not the rule in New York, whereenforcement of the contract gives rise to the lien which is lost by a suit forrescission. Davis v. Rosenweig Realty Operating Co., 192 N.Y. 128, 84 N.E. 943(1908); Flickinger v. Glass, supra; Kaston v. Zimmerman, 183 N.Y.S. 615(1920); Dioen v. Ashbaugh, 200 N.Y.S. 634 (1923). The New York courtsseem to have confused the real question in the cases; the theory of the Wiscon-sin court is more easily understood, since it embraces no legal fiction; givesgreater effect to the intenlion of the parties, and is grounded in its entirety onprinciples of natural justice.RICHARD F. 'MOONEY.EVIDENCE-TRANSAcTION WITH DECEASED-INTEREST IN THE EVENT-In orderto pay the balance due on some lots owned by husband and wife, the husbandexecuted a note payable to the deceased. The money to pay the note was givento the wife by the husband, since she was accustomed to handle all financial af-fairs; but the deceased looked to the husband for payment, saying at the timethe note was executed that the signature of the husband alone was sufficient.Upon action for the debt being brought by the administratrix of deceased'sestate, the wife sought to testify as to payment of the debt. Held, the wife wascompetent to testify as to payment of the debt. Laka v. Krystek, 261 N.Y. 126,184 N.E. 732 (1933).Section 347 of the New York Civil Practice Act and sec. 325.16, Wiscon-sin Stats., provide, in substance, that upon the trial of an action, a person in-terested in the event shall not be examined as a witness in his own behalfagainst the administrator of a deceased person. It would be difficult to deter-mine, however, whether the instant case would have been decided in the sameway had it arisen in Wisconsin. An employer has been allowed to testify, in anaction by a deceased's administrator against his employee, that payment of theclaim sued upon was made to him, and he in turn applied the amount of theclaim upon a contractual obligation due him from the deceased. Laack v. Runge,104 WXis. 59, 80 N.V. 61 (1899). An agent has been allowed to testify althoughhis principal was a party to the action. Hanf v. Northwestern Masonic Aid As-sociation, 76 Wis. 450, 45 N.W. 315 (1890). Mere relationship has been held toaffect only the credibility of the witness and not to render him incompetent.Curtis v. Hoxie, 88 Wis. 41, 59 N.W. 581 (1894). Parents have been competent