Mitchell v. Shaneberg

Citations

• 149 Ill. 420
• 37 N.E. 576

Syllabus

<p>1. Vendor’s lien—1iow created—waiver. A vendor’s lien does not grow out of any agreement, but, in equity, it is created without an express agreement of the parties. The lien may be waived. If the vendor takes other security for the purchase money, or declares that he does not rely upon the lien, such facts may be regarded as sufficient to discharge it. Any act manifesting a clear intention not to rely upon the lien will defeat it.</p> <p>2. Where a party conveys land to his daughter as a gift, for the expressed consideration of $7000, for which two notes are taken from the grantee, the one for $5000, payable in two years, without interest, and the other for $2000, payable in two years, with six per cent interest, it being understood that the first note was not a binding obligation, but intended to show the daughter’s interest in the land, and that only the interest was to be paid on the $2000 note for the grantor’s support for life, it was held, that neither the payee of the note nor his personal representative had any vendor’s lien on the premises conveyed to the daughter.</p> <p>3. Fraud—setting aside a decree obtained by fraud. Where the administrator of an estate, by fraud and deception prevents one of the heirs of an estate from making a defense to a promissory note not given to be collected, whereby a decree is recovered against the heir establishing a vendor’s lien, to which the estate is not entitled, the heir may maintain a bill to set aside such decree on the ground of fraud.</p> <p>4. Decree—not void because erroneous. An erroneous decree for a vendor’s lien for the purchase money of land, and the enforcement of such decree, when, in fact, no lien exists, is not void, but will be binding, unless reversed upon appeal or writ of error, or set aside because obtained by fraud.</p>