{ "id": 1885762, "name": "HECHT v. SPEARS, Adm'r", "name_abbreviation": "Hecht v. Spears", "decision_date": "1871-12", "docket_number": "", "first_page": "229", "last_page": "233", "citations": [ { "type": "official", "cite": "27 Ark. 229" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "25 Barb., 89", "category": "reporters:state", "reporter": "Barb.", "opinion_index": -1 }, { "cite": "11 Ind., 443", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1486897 ], "opinion_index": -1, "case_paths": [ "/ind/11/0443-01" ] }, { "cite": "30 Mo., 458", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8852014 ], "weight": 2, "pin_cites": [ { "page": "497" } ], "opinion_index": -1, "case_paths": [ "/mo/30/0458-01" ] }, { "cite": "14 Iowa, 147", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2294888 ], "opinion_index": -1, "case_paths": [ "/iowa/14/0147-01" ] }, { "cite": "38 Ala., 125", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 3006480 ], "opinion_index": -1, "case_paths": [ "/ala/38/0125-01" ] }, { "cite": "22 Md., 373", "category": "reporters:state", "reporter": "Md.", "case_ids": [ 11251029 ], "opinion_index": -1, "case_paths": [ "/md/22/0373-01" ] }, { "cite": "7 Ala,, 318", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8496071 ], "opinion_index": -1, "case_paths": [ "/ala/7/0318-01" ] }, { "cite": "1 Blackf., 416", "category": "reporters:state", "reporter": "Blackf.", "case_ids": [ 1389520 ], "opinion_index": -1, "case_paths": [ "/blackf/1/0416-01" ] }, { "cite": "25 Ala., 327", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 11255616 ], "opinion_index": -1, "case_paths": [ "/ala/25/0327-01" ] }, { "cite": "18 Ark., 162", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "21 Ark., 202", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1868286 ], "opinion_index": -1, "case_paths": [ "/ark/21/0202-01" ] }, { "cite": "27 Ill., 431", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5248023 ], "opinion_index": 0, "case_paths": [ "/ill/27/0431-01" ] }, { "cite": "32 Ill., 526", "category": "reporters:state", "reporter": "Ill.", "weight": 2, "opinion_index": 0 }, { "cite": "7 R., 606", "category": "reporters:state_regional", "reporter": "R.,", "opinion_index": 0 }, { "cite": "5 Humph., 489", "category": "reporters:state", "reporter": "Hum.", "case_ids": [ 8543697 ], "opinion_index": 0, "case_paths": [ "/tenn/24/0489-01" ] }, { "cite": "4 S. & M., 294", "category": "reporters:state", "reporter": "S. & M.", "case_ids": [ 365153 ], "opinion_index": 0, "case_paths": [ "/miss/12/0294-01" ] }, { "cite": "25 Ark., 510", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1864499 ], "opinion_index": 0, "case_paths": [ "/ark/25/0510-01" ] }, { "cite": "18 Ark., 162", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "21 Ark., 202", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1868286 ], "opinion_index": 0, "case_paths": [ "/ark/21/0202-01" ] } ], "analysis": { "cardinality": 517, "char_count": 8321, "ocr_confidence": 0.394, "pagerank": { "raw": 3.5407023712810215e-07, "percentile": 0.8847932833149732 }, "sha256": "903fcb72ab87accffbb611aeaf08a3a236100a9a41b01212fa688ec9fc931839", "simhash": "1:518d0f65ed20553e", "word_count": 1478 }, "last_updated": "2023-07-14T21:05:16.282217+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "HECHT v. SPEARS, Adm\u2019r." ], "opinions": [ { "text": "Bennett, J.-\n-Levi Hecht brought his complaint, in chancery, against the administrator of John Dodd, deceased, and against the widow of Dodd and her husband, she having-married after Dodd\u2019s death.\nThe complaint alleges that one Campbell had sold Dodd\u2019 a tract of land, for which Dodd gave Campbell his note for-five hundred dollars, for one-half of the purchase money Campbell giving a deed for the land. Afterwards, Campbell transferred the note to Hecht, the complainant, by an indorsement in words and figures as follows\n\u201cFor value received, I assign and transfer -the within note,, together with the vendor\u2019s lien and my equities to and upon the following lands: South of the southeast jjr of section 31, township 19 north, range 3 east; and the northwest \u00a3 of\u2019 section 6, of township 18 north, of range 3 east, to Levi Hecht. [Signed] C. F. Campbell.\nRandolph county, April 23, 1870.\u201d\nThe complainant seeks to have a vendor\u2019s lien declared and enforced.\nDefendants demurred to the complaint \u2014 the demurrer was sustained and the plaintiff appealed.\nIt is settled law that the vendor has a lien for the purchase money, though he make the\u2019purchaser an absolute deed, reciting the receipt of the purchase money; and this, against thevendee or a person purchasing with notice that the purchase-money is unpaid. Scott vs. Orbison, 21 Ark., 202; Harris vs. Hanks, 25 Ark., 510.\nAlso, that the mere assignment of the note, under such circumstances, does not carry with it the vendor\u2019s lien. Shall vs. Biscoe, 18 Ark., 162; Simpson vs. Montgomery, 25 Ark.,, 372. But the question arises in the case at bar, can the vendor\u2019s lien be .transferred, by an express assignment, as legal-rights may be ?\nIt seems to be settled, that if a debt is secured by an express, lien, as where there is a mortgage, or when the vendor has. not parted with the'legal title, an assignment of the debt entitled the assignee tdthe benefit of the pledge. Graham vs. McCampbell, Mass., 52; Eckridge vs. McClure et al., 2 Yerger, 84; Farmer vs. Hicks et al., 4 S. & M., 294; Norvell vs Johnson, 5 Humph., 489.\nBut a vendor\u2019s equity or implied lien is not necessarily governed by the same principle. \u201cThe lien of a vendor for the purchase money,\u201d says Story, J., in Gilman vs. Brown et al., 1 Mason 192, \u201cis not of so high and stringent a nature as that of a judgment creditor, for the latter binds the land according to the course of the common law; whereas, the former is a mere creature of a court of equity, which molds and fashions according to its own purposes. It is, in short, a right which has no existence until it is established by a decree of a court in the particular case, and is then made subservient to all the other equities between the parties, and enforced in its own peculiar manner and upon its own peculiar principles. It is not, therefore, an equitable estate in the land itself, although sometimes that appellation is loosely applied to it.\u201d\nIf then, a vendor\u2019s lien \u201cis a right which has no existence until it is established by the decree of a court,\u201d how can it be assigned before its existence? That which does not exist cannot be parted -with. A vendor\u2019s lien is a lien of a peculiar character. It is not like the common law lien of factors, innkeepers and others, associated with and entirely dependent upon actual possession of the property on which it is a tie; it is not like a general judicial lien, which springs into existence in favor of a party who obtains judgment, which enables him to take the lands of the defendants in execution, and continues, as such, until the judgment is satisfied; nor is it altogether like a common mortgage, although it operates and is treated in many respects as a mortgage. It differs from all these in this, that if it exists at all, it must originate with, and be an incident of the purchase itself. This doctrine, in relation to these liens, it is said, has been probably derived from the civil law as to goods. Mackuth vs. Symmons, 15 Ves. 344; Walker vs. Priswick, 2 Ver., 622. - And it seems tliat such a lien, upon goods, is a personal right which cannot be transIerred to another. Danbegny vs. Du Val, 5, 7 R., 606.\n'It is indispensably necessary to the existence of such a lien, that the parties should stand in the relation towards each other of vendor and vendee' of real estate, the purchase money of which has not been paid. The pure relationship of debtor and creditor, or of borrower and lender, is incompatible with the existence of this species of liens.\nIn the case of the purchase of real estate, this lien arises as an incident thereto, and can only exist together with it. In the case of a loan, the debt is the principal, and the bond, note or mortgage are only the accidents to it. A purchase' may be made or a debt may exist without an equitable lien or a bond, note or mortgage as its incidents. A bond, note or mortgage may, however, be executed, as being, in itself, the creator,- evidence and incident of a debt;-but a vendor\u2019s lien cannot be thus made and executed apart from, and independently of a contract of purchase. It is an incumbrance on land which can only be held by a vendor or his legal representative ; and though assets may be marshalled, so as to put a vendor altogether upon his equitable lien, for the benefit of other creditors, yet, no third person can, as assignee of the vendor, derive any benefit from such lien, nor can it, like -a bond or mortgage, be assigned, because it is not expressed in writing, or in any separate contract, but exists only as an inseparable equitable incident of the contract of purchase; and, as is seen from the above quotation from Judge Story, is only to be raised by construction of equity, in favor of the vendor only. \u201cThis lien would, no doubt, pass, on- the death of the vendor, to his representatives, but it is not the subject matter of sale and transfer by contract. Keith vs. Horner, 32 Ill., 526. \u201cSuch a lien is not assignable, even by express language.\u201d Richard vs. Seammy, 27 Ill., 431; Keith et al vs. Horner, 32 Ill., 526.\nA vendor\u2019s lien being founded upon an implied trust, between the vendor and purchaser, we are satisfied that the law does not authorize the vendor to transfer'this lien with the note taken for the purchase money, even though he expressly professes to do so, and we are not inclined to make a law to enable him to so do.\nThe decree must be affirmed.", "type": "majority", "author": "Bennett, J.-" } ], "attorneys": [ "Watkins \u00a7 Bose, for Appellant." ], "corrections": "", "head_matter": "HECHT v. SPEARS, Adm\u2019r.\n\"V endoe\u2019s Lien \u2014 Nature of \u2014 Not transferable or assignable. \u2014 It is indispensably ' necessary to the existence of a vendor\u2019s lien that the parties should stand in the relation to each other of vendor and vendee; it arises out of, and is incident to the purchase, and is founded upon an implied trust between the vendor and purchaser, and the law does not authorize the vendor to transfer this lien with the note taken for .the purchase money, even though he \u25a0expressly professes to do so.\nAPPEAL ER0JI RANDOLPH CIRCUIT COURT. \u2018\nHon. Elisha Baxter, Circuit Judge.\nWatkins \u00a7 Bose, for Appellant.\nIt is settled law that a vendor has a lien for the purchase money, though he make the purchaser an absolute deed, reciting the receipt of the purchase'money; and this, as against the vendee or a person purchasing with notice that , the purchase money is unpaid. Scott vs. Orbison, 21 Ark., 202; Harris \u25a0vs. Hanks, 25 Id., 510. Also, that the mere assignment of the note, under such circumstances, does not carry with it the vendor\u2019s lien. Shall vs. Biscoe, 18 Ark., 162; Simpson vs. Montgomery, 25 Id., 372.\nWhether the parties intended to abandon the lien, by the .assignment, is a matter of fact to be gathered from the evidence and the nature of the transaction. . Qriggsby vs. Hair, 25 Ala., 327.\nThe lien of the vendor is not confined to himself alone. 2 Sto. Eq. Jur., sec. 1227,1226.\nIt has been held in many States that the mere assigriment \u25a0of the notes carries the lien with it. Lagon vs. Badollet, 1 Blackf., 416 ; Boper vs. McCook, 7 Ala,, 318; Willis vs. Bryant, .22 Md., 373; Wells vs. Morrow, 38 Ala., 125; Bakestraw vs. Hamilton, 14 Iowa, 147; Adams vs. Cowherd, 30 Mo., 458; Terry vs. George, 37 Miss.,. 539; Murray vs. Able, 19 Texas, .213; McAlpin vs. Burnett, Id., 497; Kern vs-. Hazlerigg, 11 Ind., 443; Moore vs. Baymond, 15 Texas, '554; Sanders vs. Aldrich, 25 Barb., 89." }, "file_name": "0229-01", "first_page_order": 245, "last_page_order": 249 }