155 So. 586 | Ala. | 1934
The bill seeks the collection of a debt evidenced by several promissory notes by way of enforcement of a vendor's lien on certain realty therein described, the notes representing the remainder of the purchase money unpaid. The averments of the bill are too meager to meet the requirements of equity pleading. That complainant sold the property to defendant is the only connection he is shown by the bill to have in the transaction.
That complainant was the owner and executed the deed is a matter left to inference. Defendant executed notes for the balance of the purchase price. To whom they were executed is likewise left to be inferred. Had the bill shown the notes were made payable to complainant, doubtless the presumption would have been indulged that they continued as his, and thus the requirements of equity pleading in that regard have been met. Paige v. Broadfoot,
Assignments of demurrer 2 and 3 take this specific point, and should have been sustained.
As the cause must be reversed, we need make no specific ruling as to other objections, no brief for appellee here being presented, but will indulge some general observations which may be helpful in the future progress of the case.
As to the matter of description of the real estate, it may be the language of the bill would suffice, though perhaps capable of more accurate statement. Hanvey v. Gaines,
The enforcement of the lien, however, is sought upon the property conveyed, and after referring to the realty, with certain rights and water dam, the pleader has added "c." What this latter has reference to is a matter of conjecture, and defendant insists it may include personal property, and thus disclose a sale of realty and personalty for a gross sum, with no separation of the consideration, thus affording room for the principle that equity will not under such circumstances enforce a vendor's lien. Hanvey v. Gaines, supra; Wilkinson v. Parmer,
But this argument appears to overlook the bill's averment that the lien was expressly reserved in the conveyance, thus disclosing a lien created by contract, and not by implication of law. Brannan v. Adams,
The case of Smith v. Turner,
In any event, however, it would appear complainant knew the property he sold and could more definitely so state, rather than leave such an important matter to conjecture.
In answer to another argument by defendant, we may observe the general rule is that permanent improvements placed on real *80 estate subject to a vendor's lien may be subjected to a sale in the enforcement thereof. 66 Corpus Juris, 1231.
For the error first herein considered, let the decree be reversed and the cause remanded.
Reversed and remanded.
THOMAS, BOULDIN, and FOSTER, JJ., concur.