#### LEWIS AND WIFE v. BOSKINS, Adm’r, Etc.

Title Bond — Effect of contract. — "Where land is sold on a credit and hond is, given to make title on payment of the purchase money, the effect of the contract is to create a mortgage, the same as though the vendor had conveyed the land by an absolute deed to the purchaser and taken a mortgage back to secure the payment of the purchase money.

Lien oe — Against whom, a charge. — The lien, created by a title bond, exists as a. charge or incumbrance on the land, not only against the purchaser, his heirs and other privies in estate, but against all subsequent purchasers.

Purchaser in Possession — Cannot deny vendor’s title. — A purchaser, entering into possession under his contract of purchase, cannot, so long as he retama such possession, deny his vendor’s title.

Sxecutort contract — Where purchase of better title by vendee, etc. — A person in possession, under an executory contract, buying in a better title than his vendor’s, can derive no advantage from it against the vendor, and the same will inure to the benefit of the vendor, under whom he entered, and all that he can demand is the sum he paid for the better title, with interest.

Obligor — When discharged from performance. — If the obligee does anything to obstruct or prevent the obligor from performing his part of the contract, the obligor is discharged from his obligation to perform it; the contract, in legal effect, is, on his part, performed, and he may demand performance at the hands of the other party.

APPEAL FROM ST. FRANCIS CIRCUIT COURT.

,IIon. Wm..Story, Circuit Judge.

Watkins & Rose, for Appellant.

We submit that the balf .interest of tbe sister in tbe lands having been conveyed and fully paid for, tbe court erred in decreeing that tbe administrator of Brown bad a lien upon all tbe lands. Bailey vs. Greenleaf, 7 Wheat, 50. At most, Brown was only an agent for bis sister’s interest in tbe lands, and neither an agent or trustee could have a vendor’s lien. Burr vs. Bobinson, 25 Ark., 281.

B. C. Brown, for Appellee.

Harrison, J.

William F. Brown and bis sister, Martha P. Seaborn, wife of John M. Seaborn, owning jointly a tract of *62land in St. Francis county, the said William F., in the year 1858 or 1859, with the consent and concurrence of his sister and her husband, sold the same to John Castleman for $2100. Castleman, at the time of the purchase, paid $1000, and gave Brown his note for $1100, payable at a future day, but when does not appear, and took from him a bond obliging himself to make him a deed of conveyance upon its payment, and, under his purchase, entered into the possession of the premises. Brown paid Mrs. Seaborn one-half of the price for which he sold the land, except $379, and he agreed and assumed to pay that. Brown died in 1861; whether before or after the maturity of the note, the record does not show, but leaving it unpaid, and without having conveyed the land and without having paid the balance due Mrs. Seaborn.

There being, in consequence of the war, no administration upon his estate for several years after his death, the note remained, the meanwhile, in the hands of his widow, Margaret E. Brown, and whilst she had it in her possession, and on the 20th day of February, 1863, Castleman applied to her to allow him to take it -up, and give in lieu of it, a note for principal and interest to herself, to -which proposition she assented, and he executed a note for $1170 to her, payable one day after date, hearing ten per centum interest, and she thereupon gave up to him the other. Castleman, on the 28th day of March, 1863, sold the land to Oliver Lewis, and delivered him possession. As pai’t of the consideration of his purchase, Lewis agreed to pay Oastleman’s note to Mrs. Brown, and to that end he paid the $379 due Mrs. Seaborn by Brown’s estate, and had the same indorsed as a credit upon the note, and Mrs. Seaborn and her husband, on the same day, executed a deed of conveyance for her undivided half of the land, at his instance, to% Eliza C. Lewis, his wife.

Administration was afterwards granted upon Brown’s estate, and the administrator brought this suit against Lewis and his wife, the heirs of Brown, who were infants, and other proper parties, to enforce his lien for the remainder of the *63purchase money, and, upon the facts as thus substantially presented by the pleadings and the proof, the court decreed that the Lewises shorild pay to the plaintiff the sum of $1324 32; that the land should be charged with the payment thereof, and that in default of payment,.by a day named, the land should be sold, etc.

From this decree Lewis and wife have appealed to this court.

As Mrs. Brown was not the administratrix of her husband, nor the legal representative of his estate, and acted wholly without authority in surrendering to Castleman his note and taking the other in lieu of it, the latter did not operate as a payment or discharge of the'former, nor in anywise affect the rights of the plaintiff, in respect to the unpaid purchase money, and his lien upon the land for the same.

The law is well established that when a vendor sells land upon a credit, and gives the purchaser a bond to make bim a title upon the payment of the purchase money, the effect of the contract is to create a mortgage, as if the vendor had conveyed the land by an absolute deed to the purchaser and taken a mortgage back to secure the payment of the purchase money. Smith vs. Robinson, 13 Ark., 533; Moore & Cail vs. Anders, 14 Ark., 628; Graham vs. McCampbell, Meigs, 42; Tanner vs. Hicks, 4 S. & M., 294. Such being then the nature of the contract, it is manifest that the lien, so created, exists as a charge or incumbrance on the land, not only against the purchaser and his heirs and other privies in estate, but also against all subsequent purchasers. Smith vs. Robinson, supra; Moore & Cail vs. Anders, supra; Shall vs. Biscoe, 18 Ark., 142; Pintard vs. Goodloe, Hemp., 502; Thredgill vs. Pintard, 12 How., 24. But the appellant insists that no lien ever subsisted in favor of Brown or his administrator upon the half of the land that Mrs.,Seaborn owned, and that, if there ever was such a lien, it was discharged or lost by her conveyance to Mrs. Lewis, which rendered it impossible for his heirs to perform his agreement in respect to the conveyance of that part of the *64land, and it would, therefore, be inequitable to call upon them to pay for her half of tbe land, when they could not perform bis contract to convey it. Leaving out of view Lewis’ agreement witb Castleman. to pay tbe note to Mrs. Brown (given as was intended by him in lieu of tbat be bad given for tbe land), and under wbicb be obtained tbe possession from Castleman, as well as tbe historical fact tbat bonds for title originated in and came into common use through tbe inability of tbe vendor, under tbe land system of tbe United States, to make title at tbe time of tbe sale, we find a conclusive answer to this claim of immunity from tbe demand of tbe plaintiff, in tbe well known rule of law, tbat a purchaser,, entering into possession under bis contract of purchase, cannot, so long as he retains such possession, deny bis vendor’s title. Pintard vs. Goodloe, supra; Willison vs. Watkins, 3 Pet., 43; Wilson vs. Weatherly, 1 Nott & McCord, 373; Meadows vs. Hopkins, Meigs, 181. If tbe vendor is unable to convey the title and be would rescind tbe contract, be must restore tbe possession and do so entirely. He cannot enjoy tbe property' and refuse to pay tbe price. Thredgill vs. Pintard, supra; Pintard vs. Goodloe, supra; Wilson vs. Weatherly, supra; Willison vs. Watkins, supra. And tbe conveyance, so far from taking tbe ease out of tbe rule, or affording a protection against tbe lien, gives occasion for tbe application of another rule, a corollory of tbe former, wbicb may be thus stated. A person in possession, under an executory contract of purchase, buying in a better title than his vendor’s, can derive no advantage from it against the vendor, and tbe same will inure to tbe benefit of tbe vendor under whom he entered, and all that he can conscientiously demand is tbe sum be paid for tbe better title, witb interest. Pintard vs. Goodloe, supra; Thredgill vs. Pintard, supra; Searcy vs. Kirkpatrick, Cooks (Tenn.), 211; Mitchell vs. Barry, 4 Hayw., 136; Meadows vs. Hopkins, Meigs, 181.

In tbe case, before us, Lewis claimed a credit on bis purchase from Castleman for tbe amount paid for Mrs. Seaborn’s *65title, and lie received an allowance for the same in the decree.

Equally unavailing is the objection that there cannot be a complete performance of Brown’s part of the contract, since Mrs. Seaborn has conveyed her interest in the land to Mrs. Lewis. That conveyance was made at Lewis’ instance, and it is a familiar and well settled principle, that if the obligee shall do anything to obstruct or prevent the obligor from performing his part of the contract, the obligor is discharged from his obligation to perform it; the contract on his part is, in legal effect, performed, and he may. demand performance at the hands of the other party, Bac. Abr., title, “ Conditions,” Letter Q, 3; 3 Com. Dig., title, “ Condition,” L. C.

There is no error in the decree and the same is affirmed.