45 Ala. 667 | Ala. | 1871
The decree appealed from enforces a vendor’s lien upon land in favor of the appellees against the appellants. The facts which may be considered as established by the evidence in support of the decree, are as follows : W. C. Winston and his sister, Mrs. Rosina Tankersley, being joint owners of a tract of land obtained by purchase from Gaines, agreed to sell it. In pursuance
The sale of all the property was under one contract, but the items were valued separately, the land being estimated at eleven thousand, one hundred and thirty-seven dollars and fifty cents. The separate deed for the land was executed by Winston alone, and purported to convey the entire interest under a warranty of title, as if he were the sole owner.
Mrs. Tankersley refused to confirm the sale at the time, but subsequently, on receiving from Coleman the notes described in the bill, she filed for record her conveyance of her half interest to her brother, Winston.
Coleman afterwards conveyed the land by deed to D. L. Campbell, and the latter sold it to Gray, giving bond for titles.
It is manifest from several considerations, that Coleman was not a purchaser without notice of Mrs. Tankersley’s interest. If he had looked beyond Winston’s apparently exclusive possession, as he was bound to do, he would have discovered the deed from Gaines. — Dudley v. Witter, June term, 1870. Winston testifies that he told him at the time of their contract that his sister was a joint owner with him. Catterlin also deposes that he informed him of it when, as agent for Mrs. Tankersley, he proposed to him to make the notes which were made payable to her. In fine, he procured her interest only by her deed to Winston, executed in consideration of those notes.
This court has frequently declared it to be settled, that the vendor, in the absence of an agreement to the contrary ( retains a lien on the land he has sold and conveyed for the unpaid purchase-money, and that it will be enforced against a subsequent purchaser with notice.—Burns v. Taylor, 28 Ala. 255; White v. Stover, 10 Ala. 441; Roper v. McCook et al., 7 Ala. 318. In Owen v. Moore & Dobbins, 14 Ala. 640, it was not only held that the lien attached notwithstanding the conveyance; but that it was not necessary to exhaust legal remedies before resorting to it. Why should a resort to legal remedies be required ? The prin
It matters not that Mrs, Tankersley had the notes made payable to her as guardian of her children. The lien fol~ lows the consideration, unless an intention to cut it off is shown. — Conner et al. v. Banks, 18 Ala. 42.
Campbell’s answer is not evidence, because it is not sworn to. He was obliged to deny notice, to be heard on ■ that point. — Johnson v. Toulmin, 18 Ala. 50. His testimony that he had no notice, is directly contradicted by that of Catterlin, who informed him before he had paid more than half the purchase-money. Under this state of the case, we can not conclude that the chancellor erred in so charging him.— Wells v. Morrow, 38 Ala. 125 ; Porter v. Jenkins, January term, 1871. Gray has not paid anything for his purchase.
The decree is affirmed.
