Lake County.

LIMITATION OF ACTIONS-VENDOR'S LIEN.

[Lake (7th) Circuit Court, September Term, 1904.]

Laubie, Cook and Burrows, JJ.

ABBEY J. CALLENDER V. OLIVER W. BASQUIN, EXR. OF RUMINA VALENTINE, DECEASED, ET AL.

VENDOR'S LIEN-STATUTE OF LIMITATIONS.

An action in equity to enforce a vendor's lien, where there is no agreement in writing or other memorandum respecting the sale, except the deed of conveyance, and it contains no covenant or promise on the part of the vendee to pay the balance of the purchase money, is barred in six years.

ERROR to Lake common pleas court.

Homer Harper, for plaintiff in error:

The vendee is trustee for the vendor until the purchase money is paid. 2 Pomeroy, Eq. Jurisp. Sec. 868; 3 Pomeroy Eq. Jurisp. Secs. 1161, 1162, 1163.

An action on a lien is not lost by the running of the statute against the debt. 2 Wood. Lim. of Actions, Sec. 232; Lincoln v. Purcell, 39 Tenn. (2 Head.) 143 [73 Am. Dec. 196]; Bizzell v. Nix, 60 Ala. 281 [31 Am. Rep. 38].

G. N. Tuttle, for defendant in error:

The claim should have been presented to the executor for allowance before suit brought, and so alleged in the petition. Sec. 6108 Rev. Stat.; Kinkead, Code Pl. 637; 1 Bates, Pl. & Prac. 444, 445; Erie Co. (Treas.) v. Walker, 10 Re. 558 (22 Bull. 106); Hammerlee v. Kramer, 12 Ohio St. 252, 253; Pepper v. Sidwell, 36 Ohio St. 456, 457.

There is a material difference between a mortgage and a vendor's lien, between an action to foreclose a mortgage and one to enforce such lien. Borst v. Corey, 15 N. Y. 505.

Great precision is required in a bill to enforce a vendor's lien arising out of parol contract. 22 Enc. Pl. & Prac. 719, 722; Mowrey v. Vandling, 9 Mich. 39; Bliss, Code Plead. Parties; Story, Eq. Pl. Sec. 175; Giauque, Decedents' Estates 274, Sec. 45; Citizens' Sav. Bank v. Ide, 10 Circ. Dec. 800 (20 R. 665).

A bill in equity is not a proper method of settling estates. Bustard v. Dabney, 4 Ohio 68.

Vendor's lien, and statute of limitations. Borst v. Corey, 15 N. Y. 505; 28 Am. & Eng. Enc. Law (1 ed.) 184; Secs. 4971, 4974, 4981 Rev. Stat.; Markoe v. Andras, 67 Ill. 34; Wood, Lim. of Actions Sec. 232;

Callender v. Basquin.

Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842]; Yearly v. Long, 40 Ohio St. 27, 34; Harrod v. Carder, 2 Circ. Dec. 274 (3 R. 479); Bryant v. Swetland, 48 Ohio St. 194, 206 [27 N. E. Rep. 100]; New York, L. E. & W. Ry. v. Siegfried, 3 Circ. Dec. 649, 654 (7 R. 33); Williams v. Williams, 5 Ohio 444, 445; Fee v. Fee, 10 Ohio 469, 474; Howk v. Minnick, 19 Ohio St. 462 [2 Am. Rep. 413]; Delaplane v. Smith, 38 Ohio St. 413; Douglas v. Corry, 46 Ohio St. 349 [21 N. E. Rep. 440; 15 Am. St. Rep. 604]; Pepper v. Sidwell, 36 Ohio St. 457.

The statute of limitations as a ground for demurrer. Sturges v. Burton, 8 Ohio St. 215 [72 Am. Dec. 582]; McKinney v. McKinney, 8 Ohio St. 423; Vore v. Woodford, 29 Ohio St. 245, 249; Williams v. Presbyterian Soc. 1 Ohio St. 478; Bissell v. Jaudon, 16 Ohio St. 498, 503; Delaware Co. (Comrs.) v. Andrews, 18 Ohio St. 49, 67; Keithler v. Foster, 22 Ohio St. 27, 30.,

COOK, J.

The action below was to enforce payment of a vendor's lien. There was a demurrer to the petition which was sustained on the ground that the claim as shown by the petition was barred by the statute of limitations and final judgment was rendered dismissing the petition and for costs.

The petition sets forth that on December 10, 1891, Abbey J. Callender sold the premises by a parol agreement to Egbert Valentine for $2,900 and on that day executed to him a warranty deed for the same; that Egbert Valentine paid him $733 on the purchase money, leaving a balance unpaid of $2,167. Egbert Valentine died February 16, 1893, testate, devising the premises to Rumina Valentine, his wife, who elected to take under the will and went into possession of the premises with full knowledge of the claim of Abbey J. Callender. Rumina Valentine died November 20, 1900, testate, and by her will she appointed Oliver W. Basquin her executor, who duly qualified, and by the will portions of said premises were devised to certain devisees and the residue of the premises was inherited by her heirs. The suit is against the executor and all the devisees and heirs of Rumina Valentine.

The sole question made is: Did the court of common pleas err in sustaining the demurrer to the petition for the reason that the claim was barred by the statute of limitations?

This question has not been directly passed upon by our Supreme Court, but was referred to in the opinion of Dickman, J., in the case of Yearly v. Long, 40 Ohio St. 27, in which he says:

"By the code of civil procedure, the distinction between actions at

Lake County.

law and suits in equity was abolished, and for all such judicial proceedings the civil action is a substitute. Formerly in this state statutes of limitation embraced only remedies at common law, and not those cognizable in equity. But now, the lapse of time sufficient to bar the remedy, whether of a legal or equitable character, must be determined by reference to the statutory mandate.

"In seeking for the statutory rule of limitation applicable to the equitable charge under consideration, we cannot adopt the rule governing suits on mortgage liens. A mortgage is a conveyance of the legal estate, which in law would entitle the mortgagee to his action for the possession of the mortgaged premises. A civil action to enforce this equitable charge, we do not think, can be classed among actions barred in twenty-one years 'for the recovery of the title or possession of lands, tenements or hereditaments.' A vendor's lien perhaps bears a closer analogy to the equitable lien created by the testator's will; and it has been held in New York and other states, that an action to enforce the equitable lien for the purchase money of land, is barred by the lapse of six years after the debt has accrued; that the debt is the basis or foundation of the lien, and with it the lien must stand or fall. Borst v. Corey, 15 N. Y. 505; Clyde v. Simpson, 4 Ohio St. 445, 462."

In the case of Borst v. Corey, supra, it is said by Justice Johnson, page 508:

"It is true that, to sustain the suit in equity, the plaintiff must bring to his aid the equitable lien given by law, while the action at law can be sustained without reference to such lien. But the lien is merely an incident to, and must stand or fall with the debt. The debt is the basis or foundation of the lien. The latter cannot exist without, or independently of the former. In the suit to enforce the lien the cause of action, and the only substantial cause of action, is the debt."

In an action to foreclose a mortgage it has been held by our Supreme Court that a mortgage is a specialty and comes under the fifteen year provision of the statute, Kerr v. Lydecker, 51 Ohio St. 240 [37 N. E. Rep. 267; 23 L. R. A. 842]; and although the debt for which it is given to secure may be barred if an action was brought upon it at law, yet the suit in equity could be maintained. Fisher v. Mossman, 11 Ohio St. 42; Baily v. Smith, 14 Ohio St. 396, 411 [84 Am. Dec. 385]. But there is very little analogy between an action on a vendor's lien and an action to foreclose a mortgage.

A claim for purchase money becomes a lien by operation of law. In this case, which is usual, there was no covenant or promise upon the part of the vendee, by the terms of the deed, to pay the balance of the

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Callender v. Basquin.

purchase money, his liability being that alone of a simple debtor to pay in full for the land he purchased, and also in this case the debt became due at once, there being no stipulation whatever for time in which to make the payment.

There is nothing in the petition in any manner tending to show that the transaction made a continuing and subsisting trust, and thereby took it out as the statute. Egbert Valentine did not hold the money or the land in trust for Abbey J. Callender, but she was simply a creditor of Valentine for the balance of the purchase money. We think the court below did right in sustaining the demurrer to the petition and the judgment is affirmed.

Laubie and Burrows, JJ., concur.

SHERIFFS-CONSTITUTIONAL LAW.

[Erie (6th) Circuit Court, 1904.]

Parker, Hull and Haynes, JJ.

MARY CHILDS v. JAY J. PERRY ET AL.

1. SECTION 1230b RELATING TO SHERIFF'S FEES UNCONSTITUTIONAL. The act of April 25, 1898, 93 O. L. 426, Sec. 1230b Rev. Stat., relating to fees and compensation of sheriff in counties of 22,500 or more, is a law of a general nature which does not apply to several counties of the state, and is therefore in conflict with Sec. 26, Art. 2, Const., providing that all laws of a general nature shall have a uniform operation throughout the state.

2. SHERIFF NOT ENTITLED TO POUNDAGE ON MORTGage Sale.

A sheriff is not entitled to poundage on sheriffs sale under mortgage foreclosure proceedings where the property is bid in by plaintiff for less than the amount of her mortgage lien and where the purchase price is paid for in such lien in part.

ERROR to Erie common pleas court.

Malcolm Kelley, for plaintiff in error.

E. B. King and G. C. Beis, for defendants in error.

HULL, J.

The real party defendant in error is Henry Foster, present sheriff. This case is brought to this court on a petition in error to reverse the order of the court of common pleas overruling a motion to retax costs.

The matter was heard below on an agreed statement of facts. It appears from that, that the action was brought by the plaintiff to foreclose a mortgage; that there was due on her mortgage $9,858.18; that

Erie County.

she had the first lien on the premises in question; the property was sold by the sheriff and bid in by the plaintiff for $8,000; the sale was confirmed and the plaintiff paid in no part of the purchase money to the sheriff, her lien amounting to over $1,800 more than the purchase price, her bid. There was taxed poundage for the sheriff at 1 per cent on the amount of sale, to wit, $80. This was taxed under Sec. 1230b Rev. Stat. which provides for the fees of sheriffs in all counties having a population of 22,500 or more at the last federal census, and it is admitted in the agreed statement of facts that this county at the last federal census had a population of 22,500 and more, and that Ashland county, Geauga county, Harrison county and Noble county, and several other counties of the state had at the last federal census less than 22,500 population.

The plaintiff claims that this section of the statutes is unconstitutional, for the reason that it was not of uniform operation throughout the state, and that therefore its provisions are void, and that the sheriff must go to the general statute on this subject, to wit, Sec. 1230 Rev. Stat. If Sec. 1230b Rev. Stat. is constitutional the sheriff has the right to these costs, amounting to $80. If it is unconstitutional, he does not have the right to them.

The general statute, the one that has existed for many years, Sec. 1230 Rev. Stat., provided on the question of poundage as follows:

"The fees and compensation of sheriffs shall be as follows: " (Then omitting a part of the statute) "poundage on all moneys actually made and paid to the sheriff on execution, decree or sale of real estate (except on writs for the sale of real estate in partition), one and a half per centum on the first thousand dollars, and one per centum on all sums over one thousand dollars; but when such real estate is bid off and purchased by a party entitled to a part of the proceeds, the sheriff shall not be entitled to any poundage except on the amount over and above the claims of such party."

The fees and compensation of the sheriff generally are provided for in this section, which applies to all of the counties of the state.

Section 1230b Rev. Stat. is found in 93 O. L. 426, and was passed April 25, 1898. The caption of the section is, "Fees and compensation of sheriff in counties of 22,500 or more." It provides as follows in regard to poundage:

"In all counties which at the last preceding federal census had a population of twenty-two thousand five hundred or more, and for which there is no provision made by law for the payment of the sheriff, he shall receive the following fees and compensation: * * Poundage upon the amount of all sales (except in writs for the sale of real estate in

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