Payne v. Harrell
Mississippi Supreme Court
EbboR to Chancery Court of Newton county. Hon. John Watts, judge. contended, That the demurrer to the bill should have been sustained. There are no circumstances alleged showing why the vendor could not sue at law on the notes, and collect them in that way. It is not alleged that the vendee is insolvent. This, or some other reason, was necessary.
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EbboR to Chancery Court of Newton county. Hon. John Watts, judge. contended, That the demurrer to the bill should have been sustained. There are no circumstances alleged showing why the vendor could not sue at law on the notes, and collect them in that way. It is not alleged that the vendee is insolvent. This, or some other reason, was necessary. The only question presented is, whether it is necessary for the vendor to prosecute the vendee to insolvency, before he can resort to a court of equity to enforce his lien. The question has never been passed upon by this court, though many cases are…
1Opinion of the CourtEllett, J.
The only question in this case is, whether the vendor of real estate can file a bill in chancery to enforce his- equitable lien for the purchase-money, without having first sued, and exhausted his remedies at law.
There can be no doubt on this subject. The right to sue at law upon the securities given, and in equity, to enforce the vendor’s lien, are distinct and independent rights, and the party can pursue either or both remedies, at his discretion. The precise point made in this case has been adjudged in Kentucky in favor of the right to sue. 3 J. J. Marshall, 558, Black v. Hunter; 5 J. J.…
2Cited by2 opinions
- Anderson v. NewmanMississippi Supreme Court · 1882
- Simmons v. HolmesMississippi Supreme Court · 1873