Ferguson v. Shepherd , 58 Miss. 804 ( 1881 )

Chalmers, C. J.,

delivered the opinion of the court.

A guardian sought and obtained authority to sell the land of his wards; he was ordered to sell for cash. He sold for $8,000, and reported back to the court that he had received the money in cash, and the sale yas confirmed by the court as a cash sale, and a deed executed so reciting. In fact, about one-half only of the amount of the bid was paid in cash, the note of the purchaser being taken for the balance. This balance remaining in great part unpaid, this bill is filed by the guardian against the administratrix and children of the purchaser, who is now dead, for the purpose of subjecting the land to the statutory lien for the purchase-money which the law imposes upon land sold by administrators, guardians, and others, under judicial decrees.

A demurrer was sustained to the bill upon the ground that the statutory lien attached only where the land was sold on a credit, and that here the sale was for cash. This involves a misconception of the facts. The land was not sold for cash, though it was so directed by the decree and so reported to the court. Property is really sold for cash only where the cash is paid. Here, a part only of the bid was paid, and the note of the purchaser taken for the remainder; so that between the parties, no matter what the recitals of the record were, it was actually sold and bought partly for cash and partly on credit. If the rights of third persons had intervened, such rights would be protected by the recitals of the record ; but between the parties the truth cannot be cloaked and defeated by false recitals. In order to defeat the statutory lien- between the parties, there must not only be a sale for cash apparent of record, but an actual payment of the price; and even if the statutory lien in such case did not exist, the land could be subjected under the equitable lien of the vendor so long as it remained in the hands of the purchaser, his heirs, or grantees with notice.

Reversed and remanded, with sixty days to answer.