120 Ala. 251 | Ala. | 1897
The bill, filed by the appellee, states in the alternative four grounds for relief. Stephen Jackson purchased a lot of three acres of land at the price of $280, taking title to himself, and lived thereon until his death. The appellee, Mrs. Caylor, in her first ground, alleges that she let Jackson have one hundred dollars which he paid on the purchase money of the lot, at his request, under agreement with him that she should have an interest in the lot to the extent of her money that was paid for the same, and she says the deed should have been taken in the names of both.
Her second ground is, that Jackson being unable to pay $100 of the purchase money applied to her for that sum to pay the same, promising that she should be interested in the land to the extent of the sum she might advance to pay the purchase moneys that she paid off and discharged one hundred dollars of the purchase money under said request, agreement and promise, which has never been repaid to her, and that she is entitled to an interest in the land to the extent of said sum, or that she has a lien on the land to that extent for the purpose of reimbursement.
Her third ground is that after Jackson purchased, and paid $180 of the purchase money of, the land he became unable to pay, or did not have the money to pay, the balance of $100; and requested her to pay the same, stating at the time that she should have a claim or lien on the land for the same; and that she paid the $100 in accordance with such request.
The bill states that all the foregoing agreements,' directions and promises were in parol and not in writing.
Her fourth ground is, that Jackson paid $180 of the purchase money; that he came into the possession of $100 of her money, which was not loaned to' him nor delivered to him by her ; that he took this money and
The administrator and heirs of Jackson are parties defendant, and the prayer is for a decree requiring a conveyance to complainant of an interest in the land to the extent of the amount paid by her, or a decree holding. that she has a lien on the land for that sum with interest, and that the land be sold to satisfy the same. Prayer for general relief is added.
The respondents demurred to the bill because of the parol character of the alleged agreements sought to be enforced, and for multifariousness in that it is sought to enforce said express agreements and also to establish an implied trust. The administrator demurs separately that he is not a proper party. The demurrers, which were to the whole bill, were overruled and respondents appeal.
The first and second grounds are clearly nothing more than efforts to specifically enforce a pa^ol agreement for the purchase of an interest in land which cannot be done under our system. They do not show resulting trusts for the reason that complainant merely contributed a sum of money to the purchase, not being an aliquot part of the whole.—Bibb v. Hunter, 79 Ala. 351; 10 Am. & Eng. Encyc: of Law, 16.
The third shows that the vendor of .Jackson had a vendor’s lien on the land for $100, which complainant paid off at the request of Jackson and under an agreement with him that she should have.a claim or lien on the land for her reimbursement. This ground rests upon what is known as "conventional subrogation.” Under that doctrine, a stranger paying off a vendor’s lien at the instance of the debtor, and upon agreement that he shall have a lien for his reimbursement, stands in the shoes of the vendor, in respect of the lien. This subKogation is purely conventional; it results directly from the agreement; it is in effect, though not in form, an equitable assignment of the lien for the security of the advance, as in McMillan v. Gordon, 4 Ala. 716, where a stranger paying off part of a mortgage debt at the instance of the mortgagor and upon the latter’s agree
There are many authorities on this subject fully recognizing this right of substitution, a clear insight into which will be found in 24 Am. & Eng. Encyc. of Law, 290 et seq., where adjudged cases are cited and quoted from.
“Conventional subrogation,,as its name imports, results from the agreement of the parties and can take effect only by agreement. The agreement is, of course, with the party to be subrogated, and, it seems, may be either by the debtor or creditor.”—24 Am. & Eng. Encyc. of Law, 292, note.
In a court of equity, a vendor’s lien upon land, even like a mortgage,,on land, is regarded only as a security. Neither, in that forum, is considered an interest in land and either may be assigned in parol, without offending the statute of frauds. It is a mere equitable chose in action, enforceable in equity by him who is entitled' to receive the money it secures.
It must be admitted that Chapman v. Abrahams, 61 Ala. 108, very nearly approached, if it was not a case
The cases cited by the court as above stated are as follows: Foster v. Athenaeum, simply holds that a surety upon a note given for the purchase money of land paying
It seems clear that neither of these authorities relied upon to support Chapman v. Abrahams, supra, at all conflicts with the cases of McMillan v. Gordan, 4 Ala. supra,
We hold, therefore, that the third ground of relief contains equity upon sufficient allegations.
The fourth ground seems to attempt to set up a fiduciary trust, but shows no fiduciary relation whatever between the parties. It is wholly bad.
The several grounds of relief are, manifestly; alternative statements of one matter or transaction. In fact, they are expressly stated in the bill so to be. In such case each alternative must be sufficient to give relief, or the whole bill is bad; but the demurrers in the case do not raise that objection. It is demurred that the bill is multifarious in that it seeks, in the alternative, to enforce a void parol trust and also an implied trust in lands, and further that it seeks to enforce a verbal mortgage and in the alternative an implied* trust. As we have seen the first and second grounds are no more than efforts to enforce specifically an agreement for the purchase of an interest in the lot, the third is for subrogation as herein discussed, and the fourth to establish a fiduciary trust. Thex’e is no effort to enforce a parol mortgage on the lot. The assignments of demurrer do not meet the case.
The decretal order overruling the demurrers is affirmed, and the cause remanded.