PORTLAND CHEMICAL & PHOSPHATE CO. et al. v. BLODGETT, 152 F. 929

McCORMICK, Circuit Judge, having stated the case as above, delivered the opinion of the court. There is substantially no dispute as to the facts affecting this controversy. There is no room for the application of the doctrine and learning applied to protect an innocent purchaser against a secret lien. The respondent represents, in reference to the issues here presented, the bankrupt debtor, and does not in any sense occupy the position of a creditor.

The papers referred to, and as far as material quoted in the statement of the case we have made, present features which require that they should be treated in their construction as one instrument. They show clearly the property which was the subject of the sale, the parties who were the seller and the buyer, the price that was agreed upon, the amount that was paid at the time of the sale, and the amount that remained ’ unpaid. There is no dispute as to the sum that has been paid since, and as to the amount that still remains unpaid.

It is therefore a plain case where the plaintiff has parted with its property to the respondent — for, as we have already said, the respondent represents the original purchaser — which the respondent now holds, and for which he has paid not half of the agreed purchase money. The written instruments which evidence the sale were such as by law are entitled to registration in the county and state where the land is situated. They were all duly authenticated for registration and duly registered in due time.

With abundant care they provide that the purchaser shall not, during the five years next ensuing after their date, make any sale, deed, or conveyance of the granted premises, or any part thereof, without, in either case, the express assent thereof in .writing of the seller. This provision is contained in full force and the clearest expression in each one of the papers, which we construe as a single writing evidencing the transaction between the seller and .the buyer.

Their due registration gave constructive notice of their material contents to all parties undertaking to deal for or on the credit of the granted premises. Besides this constructive notice, the respondent had actual knowledge of the existence and terms of at least one of the three writings set out in the statement of the case. It, seems to us to be wholly immaterial whether technically a vendor’s or grantor’s lien sprang out of these transactions, or whether the plaintiff’s right took the shape of a contract lien.

It is plain that, besides ■the money paid at the time of the sale and the $14,000 paid, it has received nothing in the way of other security to take the place of its natural right to look to the thing sold for the unpaid part of the purchase price. This appears to us to be so clearly shown on the face of the papers themselves as to exclude room for argument and the citation of authority. In support, however, of the seller’s right, under such circumstances, to look to the property sold for the complete satisfaction of the agreed price, we content ourselves with citing Lucas v.

Wade, 43 Fla. 419, 31 South. 231; Slide & Spur Gold Mines v. Seymour, 153 U. S. 509, 14 Sup. Ct. 842, 38 L. Ed. 802. We are of the opinion that the Circuit Court erred in decreeing that the equities of this case are with the defendant, for which error the decree must be reversed.

It is therefore ordered that the decree appealed from is reversed, and the cause is remanded to the Circuit Court, with directions to pass its decree in favor of the complainant therein for the amount remaining unpaid of the purchase money as shown, and decree that the complainant has a valid and subsisting lien on all of the premises described for the satisfaction of its debt, and providing for a foreclosure thereof in manner and terms agreeab’e to equity.