Bryant v. Stephens, 58 Ala. 636

58 Ala. 636 | Ala. | 1877

BBICKELL, C. J.-*-l.

We do not deem it material to inquire whether the original contract between Davis, the intestate of the appellant,, and Stephens, was an exchange of lands, and the lands of Davis exceeding in value the lands of Stephens, for such excess, the latter gave his promissory note, which was taken up by the present notes ; or whether it was an exchange of part, and a sale of part of the lands, and the original note was for the purchase-money of the part sold. Whatever that contract may have been, it was altered by the subsequent agreement between the parties, shown by the present notes. Each of these express, the consideration for which this note is given, is the following described lands lying in Goffee county, with an immediate description of the lands by the governmental survey.

2-B-4-5. If this recital be true, and in the absence of fraud, or mistake, averred, and admitted or proved, as between Stephens and Davis, it must be accepted as true, incapable of contradiction by parol evidence, and in no event capable of alteration or contradiction, by mere influences from evidence of the original transaction. A lien on the lands is created by the notes. The lands are charged with the payment of the notes, and in equity the nature of the charge is a mortgage. Contracts, not offensive to law or public policy, must have effect according to the intention of the parties. In ascertaining the intention, we must regard the relation of the parties at the time of the contract, its subject-matter, and the law, which it is justly inferrible they had in view in contracting. There had beeu exchanges of land between Davis and Stephens, is a fact not controverted. The entire transaction, it is apparent, was, that Davis should acquire the lands held by Stephens in Pike county, and Stephens should acquire the lands held by Davis, in Coffee county. The lands of Davis exceeded in quantity, and in value, the lands of Stephens. If the original contract was of exchange and Stephens agreed to pay Davis the excess in value of his lands, though Davis may have conveyed, he had a lien on all the lands conveyed, for the excess, which was in fact but purchase money, owing him by Stephens. — Burns v. Taylor, 23 Ala. 255. If it was not wholly of exchange, but a sale of a part, and an exchange of the other lands, he had an equitable lien on the part which was sold for the unpaid purchase-money. Standing in this relation, contracting in reference to the same subject-matter, the original note of Stephens is surrendered, that note being a lien on the whole, or on a part of the lands described in the new notes. The lien of the original note, was the implied, equitable lien of a vendor, who parts with the legal estate for unpaid purchase-money. The new notes are executed, and on their face -express as their consideration certain lands. The recital of the consideration must be rejected as useless, or it must be regarded as the declaration of a charge on the lands for the payment of the notes. Davis intended to acquire, and Stephens intended to charge the lands, or this recital is unmeaning, in addition to being untrue. We give it effect, and allow a motive for its introduction, when we construe it as creating a charge, or lien on the lands, of the same nature as the equitable lien of a vendor, which a court of equity implies and enforces. It was this lien which was in the minds of the parties when the notes were made to express tbe fact and consideration wbicb raises the lien. In Donald v. Hewitt, 33 Ala. 548, it is said, “Every agreement for a lien, or a charge in rem, constitutes a trust, and is accordingly governed by the general doctrine of trusts. Such a lien or charge is called an equitable mortgage, because courts of chancery, regarding them as trusts to be enforced, attach to them the incidents of a mortgage.” This hen being created by express contract, displaces the lien a court of equity would imply, because it is a security Davis carved out for himself. — Foster v. Athenaeum, 3 Ala. 302. It is, therefore, we repeat, unimportant what was the original contract, or the original consideration of the notes. They declare a lien on the lands described, which must be enforced, and the Chancellor was in error in limiting it to a part only of the lands.

6. The notes were given, and the alteration of the original contract made subsequent to the mortgage to Hammond. The notes operating as an equitable mortgage, are subordinate in lien to the mortgage to Hammond. Nor is it at all of consequence, whether the consideration of Hammond’s mortgage was an antecedent or a debt contracted presently on the faith of it! Either is a sufficient and valuable consideration to support it, and being prior in point of time, it is prior in right to that created by the notes of Stephens to Davis. No inquiry as to the rights of a bona fide purchaser to protection against prior equities is involved. By his mortgage Hammond not only acquired the legal estate, but the prior equity, and as between him and the appellant, the rights and equities of a senior and a junior mortgagee are involved.

7. Hammond is, however, bound to exhaust the personal property conveyed by the mortgage to him, before he has recourse to the lands. The general principle of a court of equity is, that if a creditor has two funds to which he may resort for payment, or has a lien on two parcels of land, or on land and personal property, and another creditor has a claim or lien on one only of the funds, or on one only of the several parcels of land, or on the land and not the personal property, he cannot be disappointed by the election of the former to take payment from the fund or lien on which only he can have recourse. He may compel the latter to resort to the fund on which he has no recourse, or to the property on which he has no lien, and exhaust it before subjecting the other. — Cheeseborough v. Millard, 1 Johns. Ch. 409; Aldrich v. Cooper, and notes, 3 Lead. Eq. Cas. 198. If, after the notice of the lien of Davis, Hammond, from a want of proper diligence, has failed to subject any part of the personal property to the payment of the debt due him, the loss ensuing must not be visited on Davis. It was his own negligence, and he must bear the consequences of it. The value of such property should be ascertained and applied to the extinguishment of the debt due him, in relief of the lands, for the benefit of Davis.— White v. Brown, 2 Cush. 412; Lewis v. DeForrest, 20 Conn. 427.

8. The exceptions to the report of the register do not appear from the record to have been passed upon by the Chancellor, and cannot, for the first time, be considered in this court. They are now immaterial, as they fall with the reversal of the decree.

Let the judgment be reversed, and the cause remanded.