44 Ala. 115 | Ala. | 1870
The matter of difficulty in this case is a question of fact, rather than of law.
The lien of the vendor exists against the vendee and against volunteers and purchasers under him with notice, or having an equitable title only. — Burns v. Taylor, 23 Ala. 255; Story’s Eq. Jur. vol. 2, § 1225. But it does not exist against purchasers under a conveyance of the legal estate made bona fide, for a valuable consideration,, without notice, if they have paid the purchase-money. — Story’s Eq. Jur. vol. 2, § 1228; Sugden on Vendors, ch. 12, § 3, p. 557; Mackreth v. Symmons, 15 Vesey, 336; 6 John’s Ch. R. 402, 403.
The defendant, Carter, pleads that he is a bona fide purchaser, for valuable consideration, without notice, from his vendor A. J. Burch, who was seized in fee, and was in possession of the land in question at the time of the sale and conveyance to him, and that he paid the purchase-money before notice; If the facts sustain this plea, the complainant has no cause of action against him. The only part of the plea controverted is whether he is a purchaser without notice.
The proof on the part of the complainant is — 1st, the testimony of Simmons that he twice told the defendant the purchase-money had not been paid to Mrs. Burch and his reply each time, “ I reckon there will be no danger;” 2d, the testimony of Lyde that the complainant and himself were present when A. J. Burch handed his deed for the land to the defendant Carter, and received from him checks for the purchase-money; that as soon as Burch received them he, Burch, turned to the complainant and said, “when I draw the money on these checks I will go to your house and make the first payment on the land.”
There is direct conflict between the evidence of Simmons and of Carter. Simmons is the friend and agent of the complainant, and is not interested. Carter is interested, but unimpeached. AtthemeetingmentionedbvLyde, Carter may not have heard the remark of A. J, Burch to the complainant, that he would make her the first payment on the land, or he may not have understood, that he was referring to this land; the land bought by Carter from A. J. Burch not being all the land which was purchased by Burch from complainant. The complainant’s silence on the occasion is very expressive of acquiescence in what was being done.
The absence of all motive on the part of Carter for taking such a risk, as he would have done if he knew the complainant had not received payment, is at least an argument in favor of his want of knowledge.
If the weight of evidence is not on the side of the defendant, it is very evenly balanced, and the burden of proof is on the complainant. — Conner v. Tuck, 11 Ala. 794; Mason v. Peck, 7 March, 301; Roberts v. Salisbury, 3 Gill & J. 425. The vendor’s lien, though fully recognized in this State, is a secret trust, exhibiting little, where a conveyance is made, to put a subsequent purchaser on inquiry. The.defendant is a purchaser with notice of everything that appears on the face of the deed in the chain of his title, but he is not bound to inquire into collateral circumstances. — Attorney-General v. Backhouse, 17 Vesey, 282.
The decree of the chancellor is affirmed.