406 EVANS V. VETETO: ' [174 EVANS: V. VETETO. • Opinion debyered June 13, 1927. )• VENDOR AND PUECHASER—AEREEMENT TO PAY INCUMBRANCES.=-Under an agreement by which the purchaser was to pay off only .incym-brances against land As shoWn by the records, the vendor could not recarer aiainst bim, under a claim of vendor fien, :the amount which 'the vendor paid to procure the release from an unrecorded mortgage. • , . • Apridal from Oay Chancery Court, Eastern. District ; C. , M. • _quck, Special Chancellor ; reversed. Ward (6 Ward, for appellant. W. E. Spence, for appellee. KIRBY, J. Appellee brought this suit to enforce 'a vendor's lien for the balance of the purchase money clainied to be due on a tract of land sold to D. F. Evans, and to cancel a mortgage of said lands by, D. F. Evans :and Wife to their On, Mack Evans, as a fraudulent conveyance. • The testimony shows that the parties agreed upon a sale and purchase of the lands about the first of Septeni-ber, 1923, for.$2,700, the appellee agreeing to convey the lands free fronlincumbrances and furnish an abstract of title to date. • , • • ' • • . A • memorandum- of the agreement was executed, showing the deed Was to be made to . Evans and left in escrow with the Nimmons Bank until the_first of Decem-ber, 1923, at which time the purchase money was to be paid and the deed to be delivered, otherwise the. deed was to be returned to the grantor. After the sale was agreed on; Veteto insisted on advancing the date of payment, 3-as . he had need of some money to-pay on a car he had purchased. Evans refused this request, but agreed to pay $450 upon the deed being made and put in escrow, which he did. On the first day of December Evans *was ready to pay the balance of the purchase money, and demanded the deed. Veteto wa s not able to make the conveyance on account of mortgages against the land. After several
ARk.] EVANS: V. .VETETO.' 407 conferences Evans . demanded that Veteto pay him inter-. est on his money advaneed, if ,he:was not ready to .deliver the' deed., Upon ,his refusal to do this,-Evans demanded return of ,his money,ibrit was ,unable to . get it! Veteto said he had not been able to clear the title, : there being a,mortgage,: nor ! was Il e able to . get, the $450 to return to Evans and kept insistina that he should keep thi g payment and let Evans t • ake the land and pay Off the claims against it, and also for the abstra after an examin • ation of the'rec , e rds, , ct Of title: Evans, again demanded the return of his Money, preferring not tO complete the pur-Cha g e. Said that Veteto 'wanted Min "to take the land, pay what Was again g t it and let hina out of it; was very anxious to do thi g , arid deliVer the deed." • Evan g then inquired, and found the •land bad been rented to Black-burn,•.and agreed tO ,,take the land, and the deed Was delivered to him on April 7, 1924. . Veteto told•him to see Blackburn, and "tell him I am out of it ;. the land belon a s to you2' Blackburn paid him the rent for 1924. 6He had the! ,deed • . recorded, arranged to pay off the Hurst mortgage, and paid-up the taxes and the fee for making the abstract. , In February, 1925, Veteto asked witness if he desired to , sell,the land, and was told that he did not know, but would let hini know,:and Vetete came back in about two weeks and wanted to' pay back the $450 and take the land back. EVans told him that' he had run' after him all Winter, had a good ' deal of tie-able aboUt it, and that he Wouldn't do it, arid beside he' had borrowed ' gothe money on * it• He stated that Veteto' had never elairned from the time of the delivery of the 'deed until suit was brought.that there Was any more purchase smoney due.. ; • The : testimony . Of appellee, tends to show: that there were two mortgage3 against the land, one to Powell Bros. for$1,0001 that he:understood it was to be 'paid off by Evans in' purchasing . the land ;, that. he; did not know* the Powell mortgage was not of record , until after February, 1925. .He . then claimed to:have satisfied the Powell mort: gage, ,and brought this -suit - f or . the . payment,_ of , the
408 EVANS V. VETETO. [174 amount of it as balance of the purchase money. The chaneellor found in his faver, and rendered a decree for $1;000, fixingit As a lien against the land, but declining to cancel 'the mortgage to- Mack Evans as fraudulent, and 'from this decree this appeal is prosecuted. The undisputed 'testinionY shows that the contract for the sale of the land as first made was not performed, and that a new agreement was entered into under which the deed was delivered to . Evans, the purchaser. He claims this was done . upon his agreement to pay the incumbrances against the land as shown by the records, the taxes, ,and, the cost of making the abstract, in addition to the- payment of the $450 first made. The appellee insists that there were two mortgages against the land; that he understood that they were both recorded, and that Evans agreed to pay the amount of these incumbrances, and had not paid the Powell mortgage, which was not in fact recorded, and that he still owed this amount to him as part of the purchase money, he . having paid off-the Powell mortgage. . .1f the purchaser agreed only to pay off the incum-brances against the land as . shown by the records, he was in ., no wise responsible for the payment - of the Powell mortgage, .nor could the seller, Veteto, by paying the Powell mortgage and procuring a release therefor, recover the amount from Evans as part of the purchase money of the , land, since it:did not constitute a lien or incumbrance against -,the land, not being recorded. • The ehancellor's finding, under the new agreement for the purchase of the lands, that Evans was bound to the payment of the amount of the Powell mortgage as part of the . 'consideration for the land, is clearly against the preponderance- of the testimony, in our opinion. The testimony tends to show, too, that the purchaser paid about all the lands were worth, and it is undisputed that Evans insisted uPon rescinding the sale and having•his money paid back to him several times after his exami-
nation of the records and discoverrof the amount of the incumbrances against it. ' •: The decree will be • .reversed accordingly,,- and • remanded with directions to dismiss the complaint, ,for want of equity. It is so ordered.. ,
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