1. Complainants sold and conveyed eight acres of a seventy-eight-acre tract to L under agreement recited in the deed that the grantee should lease the remaining seventy acres and pay the taxes and assessments due and to become due thereon during the life of the grantor and her daughter. Simultaneously with the execution of the deed, complainant, her daughter and L executed a lease on the seventy-acre tract whereby L agreed to pay as rent all taxes and assessments assessed or that might be assessed against the property during the lifetime of the lessors, and the lease contained a provision making it binding upon the heirs, executors, administrators, or assigns of the respective parties thereto. L conveyed the eight-acre tract to his corporation, the deed reciting the agreement of lease, and on the same day the corporation executed a first mortgage to the defendant company, and subsequently executed a second mortgage on the same eight-acre tract to the defendant company, both mortgages reciting the agreement of lease. The defendant corporation had full knowledge of the agreement to pay taxes and assessments not only at the time when the two mortgages were executed but as early as the date when complainant conveyed the eight-acre tract to L. The mortgagor corporation having been adjudicated insolvent and a receiver appointed, the eight-acre tract was sold subject to the claim, if any, of complainant for taxes paid. Complainant seeks a decree establishing an equitable lien in her favor upon the eight-acre tract for the payment of taxes and assessments by or upon the seventy-acre tract. Held, that although the provision in the deed from complainant to L is not a legal condition of the continuance of the fee in the grantee, nor is it a legal covenant running with the land, nevertheless, the agreement in the deed from complainant to L gave rise to an equitable lien on the eight-acre tract, as security for the payments agreed to be made for the conveyance of the tract.
2. The defendant corporation, having had full notice and knowledge of the complainant's equity, is not a purchaser for value without notice.
3. The proofs clearly establish that the rental value of the leased seventy-acre tract was less than half of the annual taxes and that the agreement by L to pay those taxes was a part of the consideration for the execution by complainant of the deed to the eight-acre tract.
4. By filing a proof of claim with the receiver of the mortgagor corporation, complainant made no election of remedies and did not waive her claim to an equitable lien in the eight-acre tract. The burden of proof is upon the defendant to establish a waiver of lien and the proofs fail to show any such waiver.
5. The fact that payments were made to continue over a period of years in nowise takes away complainant's right to an equitable lien in the eight-acre tract; neither does the fact that the termination of the period of years is not at a fixed and certain date. The defendants took with full knowledge of all of the terms of the agreement.
PER CURIAM.
This is an appeal from a decree of the court of chancery sustaining complainant's claim that lands now owned by the defendant are subject to an equitable (vendor's) lien for the payment of taxes and assessments on adjacent lands owned by the complainant.
We have examined the proofs and concur in the findings of Vice-Chancellor Buchanan.
The decree will be affirmed.
For affirmance — THE CHIEF-JUSTICE, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 12.
For reversal — None.