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761

Montana

Part 1, c. 11, tit. 1, art. 1. Corporate powers of

towns

tit. 2, art. 1. Towns; right to proseStatutes.

cute or defend suits 76% 1887, Sept. 12. County of Cascade; organization 106

6. Raising money for town charges...

762 Vol. 1, part 1, c. 13, tit. 1, $4, subd. 3. Taxation; General Laws.

exemption.

71 810. Sale of county honds.

Part 1, c. 16, tit. 1, art. 1. Highway improve108

ment

762 Vol. 2, p. 134, 8 6. Lease by agent

69 Compiled Statutes.

p. 285, 8 55. Sherifl; office hours.. 848 312, $ 57. Mortgage a conveyance.

277 P. 820, 8 847. County attorney's fee.

110 1237. Vexatious delay; penalty...

4, p. 36. Ed. ed. Fishing

137 109

Code of Procedure.
Nebraska.
8 132. Foreclosure; parties ...

230 Criminal Code.

Code of Civil Procedure. $32. Disturbance of religious meeting ... 326

$ 1393. Exemption of pension money.

557 1454. Redemption by creditor

848 New Jersey.

1455. Redemption must be at sheriff's office. 848 1469. Redemption; certificate ..

848 Statutes.

Code of Criminal Procedure. 1878, April 5. Appointment of commissioners of municipal affairs. 4:34 8 705. Death by electricity....

716 1889, April 6. Government of city.

43:2 April 19. Government of cities.

435

North Carolina.
Revision.

Constitution, 1776.
P. 364, & 152. Election; registry.

105 669. Mechanic's lien.

49 Exclusion or non-believers from office ........ 340 1012, & 92. Road vehicles

437 1227, 3 1. Sunday traveling

436

Constitution.
Revision. Suplement.
Art. 5, 8 1. Capitation tax...

543

$ 2. Application of capitation tax.. 543 P. 456, $ 3. Mechanic's liens

49
3. State taxation

540 6. County taxes

541 7, 89. Uniformity of taxation.......... 540 New York.

Statutes.
Constitution.
1867, March 2. Dower.

120 Art. 1, $ 5. Infliction of cruel and unusual 1889, c. 218, $ 18. Taxation of credits, investpunishment

716
ments, etc..

544 & 81. Legislative power..

136

Private Laws.
Session Laws.
1887, c. 86, 81. Taylorsville

550 1813. Incorporation of religious societies. 72 1889, c. 8. Taylorsville ....

550 1832, c. 274, 81. Additional money for highway improvement

762

Code, 65. Collection of additional road tax 762 1840, c. 305, Collection of road tax 762 2115. Deed; signature of wife.

120 1847, c. 197. Money for building town houses.. 762 3765. Personal property defined

544 1848, c. 40, $ 10. 'Stockholder's liability.

555
3800. Taxes for municipal purposes..

547 1850, c. 40, 8 16. General Railroad Law.

291
3827. Taxes for municipal purposes.

548 $44. General Railroad Act..

528 1862, c. 282. Taxation; exemptions.

71 1865. Election; registry..

Ohio.

103 18018, c. 570. Railroad aid bonds.

1759 1872. Election; registry.

103

Revised Statutes. c. 387. Rochester water supply.

470 513. Power to raise money for munici

8 3626. Insurance; estoppel by receipt of prepal purposes

762
miums.

577 885, 8 3. Elevated railroads.

291
5027. Railroads; place of suit against.

701 1874, c. 410. Power to raise money for munici- 5055. Pendency of action

816 pal purposes 762 5056. Record of judgment; notice.

816 1875, c. 206, 8 20. Rapid Transit Act. 291 6761. guo warranto against corporation ...

321 c. 611. Corporations; limited liability. 55+ 6921. Highways; obstruction of.

703 1870, c. 341. Insurance; forfeiture.

294 1877, c. 321. Insurance; forfeiture.

294

Oregon. 1850, c. 564. Power to raise money for munici. pal purposes..

762 c. 591. Illegal fishing

136

Hill's Annotated Code. 1882, c. 410, 6827. N. Y. Consolidation Act.. 71

8 326. Mortgage a conveyance.

27 1863, c. 317. Illegal fishing .. 136

451 c. 392

2731. Personal property defined.
Assessment of personal property. 408
3217. Power of corporation...

639 1886, c. 141. Fishing in Lake Ontario.

136 c. 352. Commission to investigate capital punishment

717

Pennsylvania. 1887, c. 7. Commission to investigate capital punishment

717

Constitution. 1888, C. 489. Infliction of death penalty. 716

Art. 3, 83. Titles of Acts...

372 Revised Statutes.

8 7. Local and special laws.

197, 315

17, 85. Carriers; right to engage in other Vol. 1, p. 687, Ed. ed. Fishing

137
business

685 p. 740, $ 1. Dower rights

230 $ 10. Corporation; benefit of future leg738, 137. Unacknowledged deed.... 556

islation.

63%

480

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Statutes.

Milliken & Vertrees' Code. 1784, 8 1. Hawkers and peddlers.

668 2438. Recovery back of money paid upon 1785. Statute of Limitations.

601
wager

103 1791, April 6. Incorporation of literary asso

2444. Note for wagering consideration.... 706 ciation 358 5708. Transfer of illegal note.

708 1807. Rights of aliens..

860 1840, Oct. 13. Incorporation of literary asso

Texas. ciation.

358 1846, April 17, 8 1. Sales by hawkers or peddlers €88 1849, Feb. 19. Railroads..

Constitution.

371 1854, Feb. 20. Incorporation of agricultural

Art. 10, $ 21. Corporation; privilege tax...... 735 association

358 1855, April 26. Corporation; right to hold real estate.

635

Statutes. 1858. Opening highways.

198 1861, May 16. Railroads.

1881, April 6. Incorporation for school pur371

poses.. 1864. Opening highways..

198 1868. Opening highways.

1882, May Penalty for failure to deliver 198 freight.

478 1869, April 15. Railroads; right to aid other

1884, Feb. 6. Public school tax. corporation.

636 1872. Supplement to Railroad Act.

372 1874, April 29, 8 3. Corporate cbarters.

359

Revised Statutes. May 23. Classification of cities. 196 | Art. 506. Incorporation of towns..

734 June 2. Limited partnerships.. 663

619 1875, March 13. Married women; power to sell

1198. Suit in county of residence..
loan....
Exception 8. Crime, ottenge or trespass.

600 315

Arts. 4220, 4227. Duty of railroad companies. 480 1876, May 1. Limited partnership; contribu

4251, 4254. Carriers bound to transport tion of capital..

663 1878, April 17. Corporate mortgages,

359

goods offered.... May 23. Street railway companies.

371 1881, April 8. Corporation; right to convey

Sayles' Annotated Statutes. property illegally held

637 1887, May 6. Widening and paving streets...

Art. 141a, Incorporation for school purposes. 733 195 3733. Public school tax..

731 June 3. Married Person's Property Act 212, 315 Public Laws.

Virginia. 1855, p. 329. Corporation; right to hold real

Statutes.
estate

635
1866, Feb, 15. Railroad lease.

846 1869, p. 32. Railroads, right to aid other cor

1870, July 11. Railroad lease.

346 poration.. 1874, p. 271. Límited partnerships..

663 1875, p. 24. Married women; power to sell loan 315

West Virginia. 1876, p. 89. Limited partnership; contribution of capital..

663

Statutes. 1878, p. 111. Street railway companies...

871 1881, p. 9. Corporation; right to convey prop- 1882, c. 120. Interest on judgments............. 574 erty illegally held..

637 1887, p. 332. Married Person's Property Act.212, 315

Code, 1863.

C. 131, 8 14. Interest on judgments..... 576
Rhode Island.

Wisconsin,
Statutes.

Constitution.
1885, April 24. Newport horse railroad com-
pany

207 Art. 1, 8 13. Supporting place of worship...... 334 8 18. Rights of conscience..

338 Public Statutes.

19. Officers; religious test.

340

10, 82, subd. 1. Interest of school fund... 343 C. 64, 8 6. Notice of appeal..

387

$ 3. Establishment of district schools; 93, 8 6. Right to kill dogs..

389
sectarian instruction......

.334, 343 237, 8 12. Assignment for creditors..

829
4. School tax.

343

6. Discribution of school fund........ 343 South Carolina.

Statutes.
Constitution, 1778.

1879, c. 121. Attendance upon public schools.. 349

c. 194, & 2, subd. 19. Holidays; court closed 424 Established religion........

310 1882, c. 298. Attendance upon public school... 349

1883, c. 251, 8 3. Text-books in public schools. Constitution. 1885, c. 124, 8 3. Public school fund.

342

c. 142. Holidays; courts closed. Amend. 1880. Homestead exemption........ 749

287. One-mill school tax.

342 1887, c. 73. Attendance upon public schools.. 342 c. 277. Public school fund..

342 Tennessee.

1889, c. 519. Attendance upon public schools.. 342 Statutes,

Revised Statutes.
$ 514. Text-books in public schools.

337 1873. Suits to recover back illegal taxes... 469 554. Public school fund.

342 1875. Incorporation Law...

708 1694. Holidays; May 30.. c. 142, Organization of corporation. 98 2576. Holidays; courts closed.

424 8 11. General Incorporate Act; em- C. 80. Assignments for creditors. ployés wages..

97 1877. Revenue law.

470 Sanborn & Berryman's Annotated Statutes. 1883, c. 114, 8 17. Charter of Nashville. .... 470

p. 212. Corporate charters; amendments 710 88 430, 430a. Erection of school building. 342 p. 831. Option contracts; void..

706 8 4890. Attendance upon public school. 342 1887. Revenue Act..

469 4896. Attendance upon public school. 342 c. 1, 84, pp. 20, 21. Taxes upon water 1070a. One-mill school tax.

312 companies

471 | Vol. 2, p. 1841, 8 3314. Mechanic's liens........ 192

LAWYERS' REPORTS,

ANNOTATED.

TENNESSEE SUPREME COURT.

Fanpie R. O'CONNER, Admx. of Thomas immediate vendor, who in his deed retains a lien O'Conner, Deceased, Appt.,

for both sums, is such purchaser's personal debt;

and in case of his death both sums are a charge 0.

upon his personal estate, and not a burden on the James O'CONNER et al.

land in the hands of the heirs. (.... Tenn.....)

(Turner, Sp. J., dissents.)

(October 19, 1889.) 1. A purchaser of land expressly assuming and agreeing to pay off certain purchase-money notes given by his vendor

a and secured by a vendor's lien, which agreement favor of defendants in an agreed case submitted

the Chancery Court of Knox County in is contained in his deed, which retains a lien for the payment of this sum as well as the balance of to the court for the purpose of determining the purchase price to bis vendor, becomes per- whether the personal representative or the heir sonally responsible to the creditor holding the was liable for unpaid purchase money due upon original lien.

land purchased by decedent. Affirmed. 2. An incumbrance consisting of a vend.

The facts are fully stated in the opinions. or's lien which is expressly assumed

Messrs. Webb & McClung, for appellant: by a subsequent purchaser as part of the Where a man purchases land already inpurchase price, as well as the remainder of the cumbered with a purchase-money lien, and purchase money, which is payable directly to his assumes to pay off the lien, but dies before it

NOTE.-Incumbrances on decedent's real estate; from the land, on the mortgagor's death, is not chargewhat payable.

able on the personalty, but is to be paid out of both Purchase money due on a contract for the pur- funds, where the mortgage covers both the real and chase of land by a decedent is payable out of the personal property. McLearn v. Wallace, 35 U. S. 10 personal estate. Wright v. Holbrook, 32 N. Y. 587; Pet. 625 (9 L. ed. 558). Broome v. Monck, 10 Veg. Jr. 597; Livingston v. New- Although mortgages are chargeable upon the re. kirk, 3 Jobps. Ch. 312; Cogswell v. Cogswell, 2 Edw. alty incumbered under the Statutes of New York, Ch. 231; Johnson v. Corbett, 11 Paige, 265; Lamport an action against an administrator on his intestate's v. Beeman, 34 Barb. 239.

bond is not barred by the fact that it is secured by This rule is not affected by the New York Statute, a mor gage on land. Thompson v. Sullivan, 60 which, changing the common law, has made mort- How. Pr. 71. gages a charge on the real estate of a decedent un- Where real estate is expressly charged with debts, less he has expressly provided otherwise. Wright the proceeds of sales for that purpose cannot be v. Holbrook, 32 N. Y. 587.

applied to a mortgage upon lands not sold, to the A mortgage for a debt of the mortgagor's own prejudice of other creditors. Van Vechten v. Keacontracting, although given for the purchase price tor, 63 N. Y. 5.2. of the land mortgaged, is chargeable on the per- Vendee assuming incumbrance personally liable for sodalty. Sutherland v. Harrison, 80 III. 363; Cum

the debt. berland v. Codrington, 3 Johns. Ch. 229; Ruston v. Ruston, 2 U.S. 2 Dall. 243 (1 L. ed. 365); Hewes v. The grantee of premises subject to an incumDehon, 3 Gray, 205; Plimpton v. Fuller, 11 Allen, 139; brance is not personally liable therefor, without Cope v. Cope, 2 Salk, 449 and note; Howel v. Price, 1 words importing, with reasonable certainty, a perP. Wms. 291, and note.

sonal assumption of the debt. Davis v. Hulett, 2 A different rule applies as to mortgages assumed New Eng. Rep. 122, 58 Vt. 90. by a purchaser. On the death of a purchaser who Where a purchaser expressly and in terms agrees had assumed the payment of an outstanding mort- to pay off an incumbrance out of the purchase gage, the land, and not the personal estate of the price, such agreement inures to the benefit of the decedent, is primarily liable. Coudert v. Coudert, creditor, and may be enforced in equity; but where 4 Cent. Rep. 132, 43 N. J. Eq. 407; Cumberland v. Cod- there is no promise to pay, but simply an agreerington, 3 Johos. Ch. 229; McLenahan v. McLenaban, ment that, if the vendor fails to release the incum18 N. J. Eq. 101.

brance within a certain time, the purchaser shall Where part of the realty is incumbered by a miort- have the privilege to discharge it, it is otherwise. gage, the executors should pay the mortgage tirst Ayres v. Randall, 7 West. Rep. 64, 108 Ind. 595. out of the personalty as far as that will go. Wood An agreement, consented to by a mortgagee, v. Hammond, 16 R. I. 37, 193.

whereby the grantee of the mortgaged pre nises asA mortgage given in discharge of a judgment for sumes payment of the mortgage note as part of the a debt created by a contract of the mortgagor's an- purchase money, constitutes a novation which dis-. cestor, and which constituted an equitable lien on charges the original mortgagor, and renders the 7 L. R. A

3

is paid off, as between his heir and personal 33; Gawler v. Wade, 1 P. Wms. 99; Warren representative, in a court of equity, the land v. Stawell, 2 Atk. 125; Galton v. Hancock, Id. itself is the primary fund for the payment of 438; Pom. Spec. Perf. § 488. said lien, and the promise of the decedent to pay the lien is a mere collateral security.

Lurton, J., delivered the opinion of the Cumberland v. Codrington, 3 Johns. Ch. 252; court: McLearn v. Wallace, 35 U. S. 10 Pet. 625 (9 L. Thomas O'Conner died in 1882, intestate, and ed. 558); 1 Story, Eq. Jur., & 574–576; 2 Story, without issue, leaving a large real and personal Eq. Jur. & 1248 and note, ss 1248a, 12481, estate. Under the Statute of Descents and 12480, 12480, 1248e; Duke of Ancaster v. Distributions, his widow, who is likewise his Mayer, 1 Lead. Cas. in Eq. 922, note; 2 Sharsw. administratrix, is bis sole distributee, and enBl. 512, note 27; Snyder v. Summers, 1 Lea, 541. titled, after payment of his debts, to his entire

As between the heir and personal represen- personal estate. The heirs at law, to whom the tative in a court of equity all purchase-money real estate descends, are the brothers and sisters liens resting on the ancestor's lands at the time of the intestate, and the representatives of such of his death are a primary charge on such lands, as are dead. Thus the heirs and distributees and not on his personal estate, because the are not the same persons, and the fact bas liers were created for the benefit of the real given rise to a controversy as to whether the and not the personal estate.

personal estate is, in equity, the primary fund NcLearn v. Wallace, 35 U. S. 10 Pet. 644 (9 for the discharge of certain incumbrances upon L. ed. 566), and cases cited; Waring v. Ward, lands of the intestate. The parties in interest ñ Ves. Jr. 334; 2 Washb. Real Prop. 4th ed. have submitted to the chancery court an agreed 566, top p. 197; 1 Sbarsw. Bl. bk. II, 512, 157; case, as provided by the Statute, and from the Masson v. Suan, 6 Heisk. 457; Franklin v. decree of the chancellor the administratrix bas Armfield, 2 Sneed, 356.

appealed. Mr. R. N. Hood, for appellees:

The agreed case shows, first, that at the time That the personal estate is liable to exoner- intestate acquired one of the tracts of land ate the real estate from payment of sums as- which he owned at his death it was subject to sumed by decedent as part of the purchase a vendor's lien to secure certain purchase-money price, is established by the fact that in suits to notes made by the immediate vendor of Mr. enforce the vendor's lien, etc., the personal O'Conner; that Mr. O'Conner, as a part of the representative is a proper party.

consideration for the purchase, expressly asTinonsend v. Champernovne, 9 Price, 130; sumed and agreed to pay off the incumbrance, Story, Eq. Pl. $$ 160, 174–177; Knight v. and to pay 10 bis immediate vendor an addiKnight, 3 P. Wms. 333; Smith v. Hibbard, 2tional sum of $3,000. This agreement was Dick. 730; Mitf. Eq. Pl. 176; Cooper, Eq. Pl. contained in the deed to O'Conner; and, to se

grantee the sole debtor. Brown v. Kirk, 3 West. brance, binds him as effectually as though the deed Rep. 762, 20 Mo. App. 524.

had been inter partes, and had been executed by A mortgagee bas a right to proceed in equity both grantor and grantee. Curtis v. Tyler, 9 Paige, against one who has assumed and agreed to pay his 432; Halsey v. Reed, 9 Paige, 446; King v. Whitely. mortgage. Burr v. Beers, 24 N. Y. 178. See Garn- 10 Paige, 465; Thompson v. Bertram, 14 Towa, 476; sey v. Rogers, 47 N. Y. 236; Trotter v. Hughes, 12 N. Corbett v. Waterman, 11 Iowa, 86; Miller v. ThompY. 74; Russell v. Pistor, 7 N. Y. 171; Cornell v. Preg- son, 34 Mich. 10; Crawford v. Edwards, 33 Mich. 351; cott, 2 Barb. 16; Marsh v. Pike, 10 Paige, 597; King Huyler v. Atwood, 26 N. J. Eq. 504; Trotter v. v. Wbitely, 10 Paige, 465; Halsey v. Reed, 9 Paige, Hughes, 12 N. Y. 74; Burr v. Beers, 24 N. Y. 178; 446; Curtis v. Tyler, 9 Paige, 432. See also note to Spaulding v. Hallenbeck, 35 N. Y. 204; Ricard v. Gifford v. Corrigan, 6 L. R. A, 610.

Sanderson, 41 N. Y. 179; Atlantic Dock Co. v. Lea. The word "ageumes" imposes a liability on the vitt, 54 N. Y. 35; Lennig's Estate, 52 Pa. 135; Hoff's grantee. Schley v. Fryer, 1 Cent. Rep. 5, 6, 100 N. Y. App. 24 Pa. 200; Converse v. Cook, 8 Vt. 164; Bishop 71; Braman v. Dowse, 12 Cush. 227; Drury v. Tre- v. Douglass, 25 Wis. 696. mont Imp. Co. 13 Allen, 168; Locke v. Homer, 131 A purchaser of premises, agreeing to pay an outMass. 93; Stout v. Folger, 34 Towa, 71; Sparkman v. standing purchase-money mortgage, is estopped to Gove, 44 N. J. L. 252.

deny its validity, and cannot, while in possession, The element which lies at the bottom of such as- defend against the mortgage because of failure of sumption is the fact that the mortgage debt is in- title. McConihe v. Fales, 10 Cent. Rep. 232, 107 N. cluded in the purchase price, as a constituent part Y. 404. thereof, and the grantee actually pays or secures to Where a purchaser of an equity of redemption his grantor only the balance of the gross price after takes it subject to the mortgage, which he agrees deducting such debt. It is sufficient that the lan- to pay as part of the consideration of his purchase, guage shows unequivocally an intent on the part of he will be held personally liable to the mortgagee, the grantee to assume tbe liability of paying the and will be regarded as the principal debtor, the mortgage debt, which intent must clearly appear. mortgagor standing as his surety. Flagg v. MunStrong v. Converse, 8 Allen, 557; Drury v. Tremont ger, 9 N. Y. 499; Blyer v. Monholland, 2 Sandf. Ch. Improvement Co. 13 Allen, 168, 171; Weed Sewing 480; Marsh v. Pike, 10 Paige, 595: Ferris v. Crawford. Machine Co. v. Emerson, 115 Masg. 554; Trotter v. 2 Denio, 595; Cornell v. Prescott, 2 Barb. 16. Hugbes, 12 N. Y. 74; Belmont v. Coman, 22 N. Y. 438; The mortgagee is entitled to the benefit of the Binsse v. Paige, 1 Abb. App. Dec. 138; Collins v. agreement made by such purchaser. Higman v. Rowe, 1 Abb. N. C. 97: Stebbins v. Hall, 29 Barb, 524; Stewart, 38 Mich. 523. Miller v. Thompson, 34 Mich. 10; Fowler v. Fay, 62 As between the original parties, the promise by II. 375; Dunn v. Rodgers, 43 Ill. 200; Comstock v. the grantee to the grantor is not collateral, but Hitt, 37 W). 542, 546; Hull v. Alexander, 28 Iowa, 569; primary, and, in equity, the grantee is held to be Jobpson v. Monell, 13 Iowa, 300; Bumgardner v. Al. the principal debtor, and the graptor the surety. len, 6 Munf. 439; 3 Pom. Eq. Jur. 191.

Huyler v. Atwood, 26 N. J. Eq. 500; Klapworth v. The acceptance of a conveyance, containing a Dressler, 13 N. J. Eq. 63; Jarman v. Wiswall, 24 N. statement that the grantee is to pay off an incum- / J. Eq. 209; note to Boone v. Clark, 5 L. R. A. 276.

cure the payment of both sums, a lien was re- but one assumed by him as a part of tne contained on the face thereof. Noies were execut. sideration to be paid for the land, when there ed and delivered for the sum to be paid his has been no communication between the intesimmediate vevdor; but there was no substitu- tate and original vendor, to whom the debt tion of intestate's notes for those of the seller, thus assumed was due? The second question and no communication whatever between Mr. is whether a debt created by the intestate for O'Conner and the creditor. At Mr. O'Conner's the purchase of land is, as between the disdeath no part of the purchase money due op tributee and heirs, a primary charge on the this tract of land had been paid, -neither that personal estate, or do the heirs take the land which was due directly to bis immediate vend- cum onere? or, nor that which he had assumed and en- It may be, at the outset, admitted tbat where gaged to pay for his vendor. The lien of the lands descend subject to a charge, or mortgage, original purchase money, as well as that due or lien, not created by the intestate, which was immediately from intestate to his vendor, was never bis personal debt, or one for wbich be subsequently enforced in a suit against the could have been held personally liable by the beirs to whom the incumbered land had de- creator, the heir, in such case, would take the scended, to which the administratrix of O'Con- land subject to the incumbrance, and could not ner was not a party, and these incumbrances call upoñ the personal estate to have his lands. have been paid by a sale of the land. The exonerated from the burden. This would folheirs now ask to ħave the sums thus enforced low for the obvious reason that the incumbrance against the lands reimbursed out of the person- was never the debt of the intestate, and his adal estate of the intestate, wbich, it is admitted, ministrator could not therefore be called upon is sufficient for this purpose. A second tract to discharge it. which descended to the heirs was incum. The first matter to be determined, before we bered with a lien to secure purchase-money can reach a solution of the first question, is to notes made by the intestate. This lien bas decide whether the intestate bad made bimself been likewise enforced under a bill against the personally responsible for the incumbrance. heirs, and the land sold for its satisfaction; and The agreed case states that in the deed accepta for this sum tbey likewise seek reimbursemented by the intestate there was a clause whereby out of the personalty. Two questions arise the vendee assumed the unpaid purchase from these facts: First. Is the personal estate money, and agreed to pay the same. It is the primary fund, as between the distributees true, this promise or assumption is not made and the heirs, for the satisfaction of a lien, or directly to the creditor, but only to the vendor, cbarges upon the lands, at the time they were who was the debtor. The payment of this inacquired by the intestate; tbe lien not being to cumbrance was, however, a part of the considsecure a debt originally created by the intestate, eration for the land. The undertaking, in ef

If a grantee in purchasing part of the mortgaged Head, 128; Sitz v. Deihl, 55 Mo. 17; Seitz v. Union premises assumes payment of part of the mortgage Pac. R. Co. 16 Kan. 133; Smith v. Moore, 26 III. 392; be becomes personally and primarily liable only Greene v. Cook, 29 III. 190, 58 I11. 338; Grove v. Miles, for such part. Snyder v. Robinson, 35 Ind. 311; 3 71 N. 376; Button v. Schroyer, 5 Wis. 598; Merritt v. Pom. Eq. Jur. 194.

Judd, 14 Cal. 59; Purdy v. Bullard, 41 Cal. 444; 3 Pom.. Where an owner conveys a part to one who as- Eg. Jur. 272. sumes a mortgage on the whole tract, and subse. It is an equitable lien arising in favor of the quently said owner conveys the remainder thereof grantor upon an actual conveyance of the land to a third party, and the mortgage is foreclosed where the purchase price in whole or in part is left and the said remainder of the tract is sold in the unpaid. Bizzell v. Nix, 60 Ala. 281; Neel v. Clay, 48 foreclosure action, the grantee of such remainder Ala. 252; Johnson v. Nunnerly, 30 Ark. 153; Hill v. can recover damages from the grantee who as- Grigsby, 32 Cal. 55; Armory v. Reilly, 9 Ind. 490; sumed the mortgage. Wilcox v. Campbell, 8 Cent. Stevens v. Chadwick, 10 Kan, 406; Smith v. RowRep. 687, 106 N. Y. 325.

land, 13 Kan. 245; Hall v. Jones, 21 Md. 439; HaughPurchaser of mortgaged land liable for mortgage wout v. Murphy, 22 N. J. Eq. 531; Servis v. Beatty, debt. See note to Boone v. Clark, 5 L. R. A. 270. 32 Miss. 52; Whitehurst v. Yandall, 7 Baxt. 228;

Remedies of mortgagee. Knoll v. N. Y. Chicago Yancey v. Mauck, 15 Gratt. 300; English v. Russell, & St. L. R. Co. 1 L. R. A. 366, 121 Pa. 467.

1 Hempst. 35; Smith v. Evans, 28 Beav. 59. Remedies after default. Gifford v.Corrigan, (N.Y.) It is not even, in strictness, an equitable lien 6L R A. 610.

until declared and establisbed by judicial decree.

Gilman v. Brown, 1 Mason, 191; Hutton v. Moore Vendor's lien, enforcement of.

26 Ark. 382; Campbell v. Rankin, 28 Ark. 401, 400, The lien of the vendor is only another mode of Moore v. Anders, 14 Ark. 628, 6:34. expressing his equitable interest; and so far as it The lien of the vendor is in rem, and he may rehas any distinctive signification, it simply means sort to equity in the first instance to enforce it, his right of enforcing his claim for the purchase without first resorting to a suit at law to recover money against or out of the vendee's equitable the amount due, Vail v. Drexel, 9 Ill. App. 439; e-tate, by means of a suit in equity. Lewis v. McCaslin v. State, 44 Ind. 151; Moore v. Anders, 14 Hawkins, 90 U. S. 23 Wall. 119 (23 L. ed. 113); Lingan Ark. 628, 634; Hutton v. Moore, 26 Ark. 382; Pitts v. 1. Henderson, 1 Bland, Ch. 236; Tuck v. Calvert, 33 Parker, 44 Miss. 247; Wells v. Smith, Id. 296; Driver Ma. 209; Richards v. Fisher, 8 W. Va. 55; Hadley v. v. Hudspeth, 16 Ala. 348; Reese v. Burts, 39 Ga. 565; Nash, 89 N. C. 162; Harvill v. Lowe, 47 Ga. 214; Hines v. Perkins, 2 Heisk. 395; Sparks v. Hess, 15 Scroggins v. Hoadley, 56 Ga. 165; Relfe v. Relfe, 34 Cal. 186, 194; Church v. Smith, 39 W is. 492, 496. Ala. 500, 504; Shion v. Taylor, 28 Ark. 523; Lewis v. Where a note for purchase money has been as.. Bookins, 27 Ark. 61; Aolman v. Patterson, 29 Ark. signed, the assignee may not only enforce the lien 317; Cochran v. Wimberly, 44 Miss. 503; Money v. against the vendee, but may have appropriate reDorsey, 7 Smedes & M. 15, 22; Taylor v. Eckford, 11 lief against the vendor-assiguor. Church v. Smith, Smedes & M. 21; Roberts v. Francis, 2 Heisk. 127; 39 W is. 492. Carter v. Sims, 2 Heisk. 166; Cleveland v. Martin, 2

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