fraudulent representations of its officers, purposely made, may recover from the county the consideration paid to it. Nelson v. Hamilton Co., 102 Ia. 229 (71 N. W. Rep. 206). Where a vendor sold lots with reference to a plat which designated them as abutting upon unopened streets, was unable to open all the streets because he did not own them, it is held that the purchaser is entitled to an abatement of the price to the extent of the loss sustained by him, but that the contract should not be rescinded where the vendor was guilty of no fraud. Leiker v. Henson, Tenn. (41 S. W. Rep. 862).

Sec. 955. Actions to recover purchase money. A vendor is entitled to recover interest only from the date at which he tendered the deed and surrendered possession. Meagher v. Puckett, Ky. (42 S. W. Rep. 737). Where a delay in the action is occasioned by grant of time to the grantor to perfect his title, subsequent costs may properly be taxed against him. Hurt v. Miller, 95 Va. 32 (27 S. E. Rep. 831). Where fraud in the contract of sale is pleaded in bar to an action for the purchase money, the plea must aver the surrender of the land or some sufficient reason for not surrendering the same before the suit was brought. Ansley v. Bank of Piedmont, 113 Ala. 467 (21 So. Rep. 59; 59 Am. St. Rep. 122): Where a vendor agreed with his vendee that the payments of the purchase price should be applied in discharge of his purchase money debt due to his vendor, a pledgee of the obligations taking subject to such agreement, who failed to comply with it, on account of which the vendee failed to make further payments, cannot maintain an action to recover the balance of the purchase money from the vendee, without making or tendering to him a conveyance of the property. Northwestern Nat. Bank v. Ramsey, 96 Wis. 544 (71 N. W. Rep. 939). Upon the foreclosure of a land contract providing that all the rights of the purchaser shall be forfeited, in case of default, a vendor is entitled to have applied to his claim, the rents collected by a receiver, pending the action, and also to have a personal judgment for any deficiency. Belding v. Meloche, 113 Mich. 223 (71 N. W. Rep. 592).

Sec. 956. Defenses to actions for purchase money. Where the defense to an action for the price of land is fraudu

To the

lent representations made by the seller, it is error for the court to submit by instruction, the defense of mutual mistake. Braunschweiger v. Waits, 179 Pa. St. 47 (36 Atl. Rep. 155). The vendee of land who has accepted a deed with covenants of warranty, and gone into possession of the land, cannot defeat a recovery of the deferred payments of purchase money on the ground of a defect in the title, unless he has been induced to enter into the contract of purchase by fraud, or he has lost the land, held under the deed, by an eviction, or that which is tantamount thereto, with liability for mesne profits. Mickler v. Reddick, 38 Fla. 341 (21 So. Rep. 286); Coleman v. First Nat. Bank, 115 Ala. 307 (22 So. Rep. 84). same effect is the case of Abner v. York, Ky. (41 S. W. Rep. 309). It is no defense to an action for purchase money that the vendor made false representations as to improvements which would be made in the vicinity, unless it is made to appear that he had actual knowledge on the subject which the purchaser did not have and could not acquire by the exercise of ordinary diligence. Clark v. Tanner, 100 Ky. 275 (38 S. W. Rep. 11); Ansley v. Bank of Piedmont, 113 Ala. 467 (21 So. Rep. 59; 59 Am. St. Rep. 122). A grantee sued for the purchase price, may show that he took the conveyance under an agreement that he was to hold the title as trustee merely for the purpose of discharging incumbrances and effecting a sale to another, out of the proceeds of which he was to pay the plaintiff, which arrangement he was unable to consummate on account of the plaintiff repudiating the agreement and slandering the title, the result of which was that the property was sold under a mortgage foreclosure. Hoefling v. Dobbin, 91 Tex. 210 (42 S. W. Rep. 541). Where a vendee, who purchases land with knowledge of a previous sale of the trees thereon to another, pays part of the purchase price and gives his notes for the balance, he cannot, after five years of acquiescence, claim an abatement in the purchase price on account of his failure to get the trees. Southwest Virginia Min. Land Co. v. Chase, 95 Va. 50 (27 S. E. Rep. 826). Where a married woman seeks to enforce the payment of notes given for the purchase of land, the defendant may set off damages sustained through the false representations of her agent which she caused to be made, although at the time of the sale

and conveyance she could not bind herself by promissory contract or make herself liable in damages for a failure to comply with the contract. Matney v. Ferrell, 100 Ky. 361 (38 S. · W. Rep. 494). In an action for purchase money, a court may properly allow the grantee damages occasioned by the grantor wrongfully destroying a shade tree on the premises conveyed and setting over a partition fence so as to inclose with his other land a strip thereof, subsequently to the sale. Gaines v. Fagala, Tenn. (42 S. W. Rep. 462).

Sec. 957. Recovery of purchase money paid by vendee-Vendee's lien. A vendee who has forfeited his contract by default in payments, cannot recover amounts which he has paid thereon. Satterlee v. Cronkhite, 114 Mich. 634 (72 N. W. Rep. 616). Money paid to a husband under his void contract to convey a homestead may be recovered. De Kalb v. Hingston, 104 Ia. 23 (73 N. W. Rep. 350). A vendee entitled to a rescission of an executory contract on account of the vendor's inability to convey a good title, is entitled to recover the payments he has made pursuant to the terms of the contract, with interest. Maxwell v. Gregory, 53 Neb. 5 (73 N. W. Rep. 220). In such an action it is not competent for the defendant to show his own solvency or that he has been empowered by virtue of negotiations with the holder of the outstanding title to make a good and sufficient warranty deed, no such ability or readiness having been averred in his answer. Maxwell v. Gregory, 53 Neb. 5 (73 N. W. Rep. 220). Where one seeks to recover the purchase money paid by him for land, treating the contract of sale as rescinded, he must account for the value of the use thereof while he was in possession. Todd v. Leach, 100 Ga. 227 (28 S. E. Rep. 43). A vendee who is at fault in failing to complete his contract, cannot recover payments of the purchase price which he has made, although the contract does not provide for a forfeiture. Downey v. Riggs, 102 Ia. 88 (70 N. W. Rep. 1091). Where, in an action for possession by a vendor on account of vendee's failure to complete the payment of the purchase price, a demand by the defendant for repayment of the purchase money debt and compensation for improvements, is not such a counterclaim as will prevent plaintiff from tak

ing a nonsuit. Rumbough v. Young, 119 N. C. 567 (26 S. E. Rep. 143). Where a vendee cannot have specific performance on account of the statute of frauds, he may enforce a lien for partial payments of the purchase money. Devore v. Devore, 138 Mo. 181 (39 S. W. Rep. 68).

Sec. 958. Reserving title to secure purchase money. A purchaser of land stands in the position of a mortgagor as to the purchase money where the title has been reserved, and the vendor has two remedies, one in personam and one in rem. First Nat. Bank v. Pearson, 119 N. C. 494 (26 S. E. Rep. 46). A vendor of real estate who retains the legal title as security for the payment of purchase money may, by subsequent oral contracts with the purchaser, annex further conditions to his obligation to convey; and they will be enforced in equity against a mortgagee of the purchaser who acquires his interest after such further conditions have been annexed and while the legal title remains in the vendor. Allemania Loan & Bldg. Co., No. 2 v. Frantzreb, 56 O. St. 493 (47 N. E. Rep. 497).

Sec. 959. Vendor's lien-Creation of and who may enforce. A vendor's lien for purchase money is an implied equitable right of the vendor to resort to the property in case the purchase money is not paid. It is not the result of any agreement and a lien created by express written contract or agreement between the vendor and vendee is not a vendor's lien. It is a security more in the nature of a mortgage. McKeown v. Collins, 38 Fla. 276 (21 So. Rep. 103). Citing, Wright v. Troutman, 81 Ill. 374. In Alabama it is not necessary that a vendor's lien be reserved; it arises from a sale on credit and a conveyance of the land. Knight v. Knight, 113 Ala. 597 (21 So. Rep. 407). A vendor's lien does not exist in Washington where land is conveyed by an absolute deed, in the absence of an express agreement creating it. Smith v. Allen, 18 Wash. 1 (50 Pac. Rep. 783; 63 Am. St. Rep. 864; 39 L. R. A. 82). See Ballards' Law of Real Property, Vol. V, §§ 952-954. The same rule is established in West Virginia, Code, ch. 75, § 1. Scraggs v. Hill, 43 W. Va. 162 (27 S. E. Rep. 310). A deed reserving a vendor's lien should describe

the debt so as to identify it. Goff v. Price, 42 W. Va. 384 (26 S. E. Rep. 287). A vendor of real estate may create a lien thereon and charge the same with his support and maintenance by using express words to that effect, but an implied equitable lien does not exist in favor of a vendor of real estate to secure the consideration therefor, when such consideration is his maintenance and support during life. Crim v. Holsberry, 42 W. Va. 667 (26 S. E. Rep. 814). Citing, Mc Candlish v. Keen, 13 Grat. 615; Brawley v. Catron, 8 Leigh 522; Arlin v. Brown, 44 N. H. 102; Hiscock v. Norton, 42 Mich. 320 (3 N. W. Rep. 868); McKillip v. McKillip, 8 Barb. 552; Chase v. Peck, 21 N. Y. 581; Meigs v. Dimock, 6 Conn. 458; Hobson v. Edwards, 57 Miss. 128; Peters v. Tunell, 43 Minn. 473 (45 N. W. Rep. 867; 19 Am. St. Rep. 252). Where one conveyed land to a grantee designated by another, in exchange for a stock of goods, which the latter fraudulently represented and guaranteed to be of a certain value, which was the specified consideration for the land, the former is entitled to a vendor's lien for a balance due him, on account of the deficiency found to exist in the value of the goods, although the grantee was ignorant of such fraud, it appearing that he was a creditor of the owner of the goods and knew that the latter was insolvent. Jones v. Wolfe, Tenn. (42 S. 'W. Rep. 216). Construing and applying N. Dak. Rev. Codes, & 4830, which provides that "one who sells real property has a special or vendor's lien thereon independent of possession for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer," it is held that only the seller of real property has a vendor's lien thereon for the unpaid purchase price; and one to whom, with the vendor's assent, the vendee has agreed to pay a portion of the purchase money, cannot claim such a lien. Bray v. Booker, 6 N. Dak. 526 (72 N. W. Rep. 933). Ga. Civ. Code, § 2809 (Code 1882, § 1985), applied-lien of one selling timber. Giles v. Gano, 102 Ga. 593 (27 S. E. Rep. 730). A vendor's lien is not assignable. Martin v. Martin, 164 Ill. 640 (45 N. E. Rep. 1007; 56 Am. St. Rep. 219). An assignee of a note given for purchase money reciting that it was given for purchase money due on the land and that a lien was retained to secure its