Robert R. Richardson vs. Wm. A. Ridgely, et al., 8 G. & J. 87

Spence, Judge, delivered the opinion of the court. The complainant in this cause aims to establish an equitable lien on certain real estate, conveyed by him to the respondents by a deed dated the 17th day of September, 1821, for a part of the purchase money still due and unpaid as he alleges in his bill. j The complainant charges in his original bill that, “ the consideration aforesaid which is expressed in said deed, was not paid to your orator at or before the execution and delivery of the said deed, but the said William A.

Ridgeiy, assigned to your orator in payment thereof a mortgage from a certain Edward Rider to him and in his amended bill, the complainant charges that, “ the consideration aforesaid which is expressed in the said deed, was not paid to your orator, at or before the execution and delivery of the said deed; but the said William A.

Ridgeiy, assigned to your orator to secure the payment thereof, a mortgage from a certain Edward Rider, to him.” I From the complainant’s own shewing it is clear, that he took a distinct and independent security for the purchase money, and that he did not trust to the estate conveyed by him to Ridgeiy, as a pledge for his purchase money. If we were embarrassed with doubts either as to the correctness or proper

interpretation of the rule of law laid down in Sugden on Vend. 387, viz : “ that where a vendor accepts a mortgage of another estate for the purchase money, the obvious intention of burthening one estate, being that the other shall remain free and unincumbered,” “ and that the vendor’s lien on the estate is gone.” We should be driven to this conclusion in the case now under consideration, by the express declaration and understanding of the complainant, as manifested in the assignment of the mortgage from the respondent to him, wherein the contracting parties express themselves in this strong and unequivocal language. “ It being however expressly declared and understood, that the present assignment is taken and received by the said Robert R.

Richardson, without any sort of recourse to the said William A.

Ridgeiy, or his representatives for the payment of the said mortgage debt, or any part thereof, he relying wholly upon the said mortgage, upon the bonds or obligations given by him to said Ridgely, and referred to in said mortgage, and this day assigned by said Ridgely to said RichardsonIt has been earnestly urged in the argument by counsel, that the complainant in accepting the assignment of the mortgage, did not waive his lien upon the estate conveyed by him, and that the mortgage failing to produce the amount of money for which it was accepted by him, that he could go over upon his equitable lien.

The conclusive answer to this argument is the complainant’s own acknowledgment, expressed in the assignment of the mortgage, as to the terms upon which he accepted it, viz : that he received it without any sort of recourse to the said William A. Ridgely, or his representatives, for the payment of the said mortgage or any part thereof. From all which we are of opinion, that the lien of the said Richardson, upon the lands conveyed, was by him waived and is gone.

The complainant’s counsel in their arguments insisted, that Richardson received the assignment from Ridgely, under a mistake produced by the misrepresentation of Ridgely, as to the actual amount due; but the record contains no proof to sustain the argument. The amended bill charges and avers, that when he, Richardson, agreed to take the assignment of the said mortgage as aforesaid, he was utterly ignorant of the said lien on said mortgaged premises, but the same was well known to the said Ridgely, and was fraudulently concealed by him from your orator.

We have carefully examined the record for the evidence to Sustain this charge of imposition and fraud, but in vain. For from the complainant’s own testimony it is almost demonstrable, not only that Ridgely, did not fraudulently practice upon and overreach the said Richardson, but that it was almost impossible that he could have done so, if such had been his design.

He, Richardson, was the husband of Ridgehj’s sister, and derived as devisee under the same will of Charles Ridgely, a farm in right of his wife, by which Ridgely derived his title to the lands sold to Rider, and which was by him .mortgaged to Ridgely, and the same land described in the mortgage assigned to 'Richardson, and the charges now complained of, viz : Ballzell’s and wife’s, was a legacy to the sister of this complainant’s wife, and charged upon the land by the same last will of their father, by which Richardson, derived the said farm in the right of his wife, i Under these circumstances we cannot therefore but conclude, that Richardson was aware of the provisions of the last will and testament of Charles Ridgely, and consequently, aware of the incumbrances to which the mortgaged premises he accepted as a security for his purchase money might become liable under that will; and we also conclude, that the arrangement between Richardson and William A.

Ridgely, was made with full knowledge of all the facts now relied on to impeach it, and that Ridgely’’s conduct in the transaction is clear of fraud, or proof of misrepresentation, or deception of any kind: viewing the complainant’s bill in either aspect, either as a bill to enforce a lien, it has already been shown that no lien existed; that the nature of the original contract was inconsistent with the idea of a security of that description being reserved in this case — or as a bill claiming redress upon the footing of fraud or misrepresentation, that neither is sustained by proof; we are of opinion that the decree is in no respect erroneous, and affirm the same with costs to the appellees.

DECREE AFFIRMED.