Kirkham v. Boston

Citations

• 67 Ill. 599

Syllabus

<p>1. Vendor’s lien. A vendor’s lien is not recognized by our statute, and is entirely unknown at common law. It was ingrafted into the equity jurisprudence of England from the civil law. It is based upon the implied agreement existing between the vendor and vendee that the former shall hold a lien on the lands sold, for the payment of the purchase money. When, therefore, it appears that the vendor did not rely on the lien, this does away with the implied agreement, and courts hold the lien waived.</p> <p>2. Same—taking security, a waiver of. If the vendor, on a sale of land, takes other security for the payment of the purchase money, this will be construed as a waiver of the lien.</p> <p>3. Thus, where a party sold and conveyed land, and received in payment, from the purchaser, the notes of a third party, secured by mortgage on real estate, it was held, that he had no lien upon the land sold by him to enforce payment of so much of the notes received by him as he could not collect of the maker.</p> <p>4. Evidence—parrol proof to vary a written contract. Parol evidence can not be received to change the terms of a contract that is in writing. But where, pending a negotiation, a writing is executed relating to some few particulars of the contract as afterwards consummated by a parol agreement, which clearly appeared not to be the contract of the parties, it was held, that parol evidence was admissible to show what the contract was.</p> <p>5. Same—parol evidence as to indorsement of note. While it is true that testimony is not admissible to prove a parol agreement made at the time of the indorsement of a promissory note, for the purpose of varying the legal effect of such indorsement, yet the indorser, when sought to be charged, has the right to show, by parol testimony, what the consideration of the indorsement was, and that it has failed, or that there was fraud.</p> <p>6. Indorsement—liability on. Where a party gave notes on a third person in payment for land, and th