¶1Opinion
¶2The main question at issue in this case and the only one we shall discuss is whether an equitable lien existed in favor of the complainants. Upon the disputed question of facts, the testimony supports the findings of the master and the court.
¶3Tinsley owed the complainants $2,000, for negotiating the trade between him and Hankey. Having failed to pay in cash and refusing to convey to Durfey so that.he could hold the title to the land as security for the debt, as he had promised, he executed a contract by which he agreed to give them the exclusive control of the sale of the land and to pay them out of the proceeds of such sale. In the event of sale, unquestionably, the contract gave complainants a lien upon the proceeds. While it allowed Tinsley the right to fix the price, it contemplated, and the law inferred that he should fix a reasonable price and that the sale should be made within a reasonable time. Equity treats that as done which ought to be done, and as Tinsley had refused to fix a price and had incumbered the title with mortgages, it follows as a logical sequence that complainants’ debt became due and a lien on the land attached.
¶4The form of the agreement Avhich shall create a lien is not very material, for equity looks at the intent and purpose rather than at the form; and so it has been held that an agreement in writing, Avhereby the contracting party indicates an intention to make some particular property, or the fund arising from the sale of it, security for a debt or other obligation, creates an equitable lien upon the property so indicated. 3 Pomeroy’s Equity, Secs. 1235, 1236; Near v. Donnelly, 80 Mich. 130.
¶5An agreement that certain claims shall be paid out of certain property is held to be an equitable mortgage. Seymour v. Freer, 8 Wallace, 202; Wylie v. Coxe, 15 Howard 415; Ketchem v. St. Louis, 101 U. S. 306; Donald v. Hewitt, 33 Ala. 534; Pinch v. Anthony, 8 Allen (Mass.) 536.
¶6It is vigorously argued that complainants have an adequate remedy at 1-aAv, and can not, therefore, call to their aid a court of equity to enforce collection of the debt. The fact that they have a remedy in a court of law and could maintain an action of assumpsit and might proceed by attachment is no answer to an application to enforce an equitable lien. An equitable lien is one which a court of chancery recognizes as distinct from strictly legal rights, and is always open to enforce it, regardless of what right the applicant may have to proceedings in a court of law.
¶7To the contention that the court erred in approving the master’s report of sale because it fails to show that the land was offered in separate parcels, and because it was sold before the time within which the defendant was to pay the money, by the terms of the decree, had expired, it is only necessary to say that no motion to set aside the sale Avas made below, or any objection whatever raised to the master’s report. The regularity of the sale is not properly before us; in fact, it does not appear from the abstract that any of the defects urged to the report exist. Decree affirmed.
¶8Harker, P. J., dissenting:
¶9The foregoing opinion expresses the views of a majority of the court. As I am unable to concur with my associates as to the written contract creating an equitable lien upon the land in question, I dissent.