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Fonda v. Jones.

the question raised upon the third instruction given for the plaintiffs in attachment; the instruction should have been given without modification, and it was error to refuse it. It necessarily follows, from these views of the questions considered, that the verdict must be set aside.

Let the judgment be reversed and a new trial awarded.

FONDA, appellant, v. JONES.

(42 Miss. 792.)

Vendor's lien-waiver of by taking security.

The taking by the vendor of lands of the note of the purchaser, with a third person as surety thereon, is prima facie evidence of a waiver of the vendor's lien for the purchase-money, but it may be rebutted by satisfactory proof of an express agreement that the lien should be retained.

THE appellant and wife sold and conveyed to Dickson Priddy certain land situated in Tallahatchie county, and took his two certain promissory notes under seal, commonly called bills single, with Cullen McCullin as surety therein, payable to the appellant, for the two last installments of the purchase-money. The said bills single not being paid, the appellant filed his bill against the appellees in the chancery court of said county of Tallahatchie, to enforce the vendor's lien on said land for the unpaid purchase-money. The bill alleges that, at the time of the sale and conveyance as aforesaid, there was a distinct understanding between the appellant and said Dickson Priddy that the vendor's lien should be retained on said land as a security for the payment of the said notes, the said Cullen McCullin being joined with said Dickson Priddy in the same as additional security for their payment. To this bill of complaint the appellees, Sarah Jones and Thomas Jones, filed their demurrer, which was sustained by the court, and the bill dismissed. And from this decree the cause is brought into this court by appeal.

PEYTON, J. The doctrine of the vendor's lien is a highly equitable one, and eminently consistent with the most perfect notions of moral justice. It has existed in the English equity courts for cen

Fonda v. Jones.

turies. It has been adopted in most of the American states whose equity systems may be regarded as at all settled, and in the national courts. This lien prevails against the vendee and all persons claiming under him, except mortgagees and bona fide purchasers for valuable consideration without notice; and such purchaser must be a purchaser from the grantor, and not a purchaser at execution sale. The question of the vendor's lien has generally arisen, not from a general denial of the doctrine, but only of its application to the particular case under consideration, in consequence of an alleged waiver of the lien by some act of the party claiming it. The rule in this respect is to sustain the implied lien when the vendor has taken the mere personal security of the purchaser only, and to consider any bond, note, or covenant given by the vendee alone as intended only to countervail the receipt of the purchase-mone! contained in the deed, or to show the time and manner in which the payment is to be made, unless there is an express agreemeni between the parties to waive the equitable lien; and, on the other hand, to consider the lien as waived, whenever any security is taken or. the land, or otherwise, for the whole or any part of the purchasemoney, unless there is an express agreement that the equitable lien on the land shall be retained. This constitutes a safe rule, easily understood, and which we consider as established by a weight of authority in this country which is not easily shaken.

The taking of the note of the purchaser, with a third person as surety thereon, is evidence of a waiver of the lien. But that evi dence may be rebutted by satisfactory proof that it was intended that the vendor should retain his lien. At all events, it is prima facie evidence of a waiver, and the onus is on the vendor to prove by the most cogent and irresistible circumstances, that it is not to have that effect. 2 Washburn on Real Property (3d ed.), 91; Boon v. Murphy, 6 Blackf. 272; Way v. Patty, 1 Car. (Ind.) 102; Campbell v. Baldwin, 12 Humph. 248, 258; Mims v. Macon and Western R. R. Co., 3 Kelly, 333, and Baum v. Grigsby, 21 Cal. 172.

The weight of the authorities is clearly in favor of the opinion that the law gives no lien in favor of the vendor of the estate where the note or bond of the vendee, with a third person as security, is taken for the purchase-money, unless there be an express agreement that the lien shall be retained. And as, in the case under consideration, the bill avers that there was such an agreement, we are of opinion that the defendants should answer. For this reason we

Robinson v. Harbour.

think the court below erred in sustaining the demurrer and dismissing the bill.

The decree must be reversed, the demurrer overruled, and cause remanded, with leave for the defendants to answer the complainant's bill of complaint within sixty days from this date.

ROBINSON, appellant, v. HARBOUR.

(42 Miss. 797.)

Covenant on sale of land.

H. sold to R. lands at an agreed price, part of which was paid in cash and R.'s note given for the balance. H., at the same time, executed and delivered his bond conditioned to make title to R. when said note was paid. H. afterward assigned the note before its maturity to M., who brought action thereon after maturity. R. demurred on the ground that no deed of the land had been tendered. Held, that the covenant in the note and that in the bond were dependent, and that the demurrer was well taken. See Bowen ▼. Bailey, ante, where the converse is held by the same court.

THE case is stated in the opinion.

D. E. Thomas, for appellant.

Walthall & Golladay, for appellee.

PEYTON, J. In this case it appears that, on the 16th day of December, 1859, one John J. Hall bargained and sold to Eliza Robinson certain land, situate in the county of Yallobusha, for the sum of $2,440, one-half of which was paid in cash at the time of the sale, and for the other half she executed her promissory note, of that date, payable to the order of said Hall on the first day of January, 1861; and that the said John J. Hall, at the same time, executed and delivered to the said Eliza Robinson his bond, conditioned to make her a title to said land when said note for the balance of the purchase-money was paid, and placed her in possession of the land, which she has retained ever since.

On the 3d day of February, 1860, the said Hall assigned the said note, for value, to M. H. Harbour, who filed his bill in the chancery

Robinson v. Harbour.

court of said county of Yallobusha to subject the said land to the payment of the said note. To this bill the defendant, Eliza Robinson, demurred, on the grounds of the want of equity on the face of the bill, and that the complainant had not made or tendered to her a deed for the land and demanded the purchase-money, so as to put her in default before filing said bill. The demurrer was overruled by the said court, and the appellant brings the case to this court, and assigns for error the action of the court in overruling the defendant's demurrer to the complainant's bill.

There is no doubt that the vendor of land, who has taken the notes of the vendee and given bond, conditioned to convey the title when the purchase-money is paid, can, by an assignment of the notes, pass his lien for the purchase-money, and that the assignee may proceed in equity to subject the land to the payment of his debt. Tanner v. Hicks, 4 S. & M. 294, and Terry v. George, 37 Miss. 539.

The main question presented by the record for our determination is, whether the covenants of the vendor and vendee in this case are dependent or independent covenants? And, upon this subject, it must be conceded that there has been considerable oscillation of the judicial pendulum, and, what is much to be regretted, a great want of uniformity and harmony in the decisions of our own courts. Knowing the necessity of some certain, intelligible and correct rules with respect to the construction and character of covenants in agreements, we have given this subject that thorough investigation and mature consideration which its importance demands. The order of time in which covenants are to be performed is an important consideration in determining whether they are dependent or independent. And the rule seems to be clear and indisputable that where there are several covenants, which are independent of each other, one party may bring an action against the other for breach of his covenants, without averring a performance or tender or offer of performance of the covenants on his part; and it is no excuse for the defendant to allege in his plea a breach of the covenants on the part of the plaintiff. But, where the covenants are dependent, it is necessary for the plaintiff to aver and prove a performance, or tender and offer to perform his part of the agreement, and demand performance by the other party of his part of the agreement, to entitle himself to an action for the breach of the covenants on the part of the defendant. The difficulty lies in the application of this

Robinson v. Harbour.

rule to the particular case. It is justly observed that covenants are to be construed to be either dependent or independent of each other, according to the intention and meaning of the parties and the good sense of the case, and technical words should give way to such intention. In order, therefore, to discover that intention, and thereby to learn, with some degree of certainty, when performance is necessary to be averred in the declaration, and when not, it may not be improper to lay down a few rules which will, perhaps, be found useful for that purpose, as follows: 1. If a day be appointed for payment of money or part of it, or for doing any other act, and is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent; and so it is where no time is fixed for performance of that which is the consideration of the money or other act. 2. But when a day is appointed for the payment of money, or for doing any other act, and the day is to happen after the thing which is the consideration of the money or other act is to be performed, no action can be maintained for the money, etc., before performance. 3. Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be compensated in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant or the part of the defendant, witnout averring performance in the declaration. 4. Where the acts or covenants of the parties are concurrent, and to be done or performed at the same time, the covenants are dependent, and neither party can maintain an action against the other, without averring and proving performance on his part.

When tested by these rules, it will be found that the broad doctrine laid down by this court in the cases of Clopton v. Bolton, 23 Miss. 78, McMath v. Johnson, 41 id. 439, and others based upon their authority, cannot be sustained. These cases hold, that where the vendee of land executes his notes to secure the payment of the purchase-money in installments, and takes a bond from the vendor, conditioned to make title when the last installment is paid, the covenants are independent, and the vendor may enforce payment without performance, or an offer and tender of performance, of his part of the agreement. These cases, it is believed, are founded on a VOL. II.-85

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