Sackett & Reed v. Barnum

By the Court,

This was a contract for the sale of land. The consideration was to be paid in installments, and the conveyance fo be executed when the payments were completed. The vendee was to have possession of the property in the meantime, and to- pay interest on the purchase money. It was, for most purposes, equivalent to a present conveyance by the vendors, with a mortgage back to secure the payment of the purchase money. The several payments which the vendee was to make, were not a rent or return for the temporary enjoyment of the land— they were not reserved out of the annual profits by way of recompense or retribution for the possession of the property, but they were a part of the consideration for the sale—the price of the land itself, with the addition of interest, because the payments were postponed to future periods. On default of payment, the parties have stipulated for a remedy by distress, as for' so much rent due. Whatever may be the legal effect of this agreement, as between the parties to it, I think they could not, as against third persons, turn the price of the land .itself into rent, and thus acquire a preference over the execution creditors of the vendee. The goods were not upon demised premises, and there was no rent due, within the meaning of the statute. 2 R. S. 746, § 12.

In Saunders v. Musgrave, 6 Barn. & Cress. 524, 9 Dowl. & Ryl. 529, and 2 Carr. & Payne, 294, S. C., there was a contract to convey at a future period, on payment of the price of the land, without interest. It was further *608agreed, that in the meantime the vendee should pay the vendor £100 per annum from the time of taking possession until the completion of the purchase, in equal half yearly payments. The vendee had been in possession more than half a year when an execution was levied on his goods, and it was held against the opinion of Abbott, Ch. J. before whom the cause was tried at nisi prius, that the vendor, as to £50 for the half year’s enjoyment, was entitled to a preference, under the statute, 8 Anne, ch. 14, over the execution creditor. But it will be observed, that the £100 to be paid annually for the possession, was no part of the purchase money. In that respect it plainly differs from the case at bar, where the vendors have attempted to turn the purchase money into' rent. The case of Hope v. Booth, 1 Barn. & Adol. 498, seems not to* be in accordance with the decision in Saunders v. Musgrave; but whether the two cases can be reconciled or not, I find no authority which will warrant the Weeds in the assertion of their claim to a preference over the execution creditors of Barnum. As they have had notice, and have been, heard upon this motion, they will be bound by the decision. The plaintiffs in the two executions are entitled to the money in the hands of the sheriff.-

Motion granted.