Craft v. Russell
67 Ala. 9
Ala.
1880
Check Treatment
SOMEEYILLE, J.

— -Thе decisions of this court have been uniform in holding, that the vendor of lands, in thе absence of an agreement, express or implied, to the сontrary, retains a lien on the lands sold and conveyed for the unpаid purchase-money, which shall prevail against any sub-vendee who purchases with notice of the original vendor’s equity. — Foster v. Atheneum, 3 Ala. 302; Buford v. McCormick, 57 Ala. 428. And when a bill is filed to enforce such lien, ‍‌‌‌‌​​​‌‌‌​​‌‌​‌‌​​​​‌‌​​​​‌​‌​​​‌​‌​​‌‌​​‌​​​​​‍a plea put in by a defendant claiming to be a bona fide purchaser for value without notice, in order to be available аs a protection against a prior equity or conveyancе asserted by the complainant, must aver clearly, distinctly and without equivоcation the following facts: (1) that he is the purchaser of the legal as distinguished from an equitable title; (2) that he purchased the same in good faith; (3) that he parted with value as a consideration therefor by рaying money or other thing of value, assuming a liability or incurring an injury ; (4) that he had nо notice, and knew no fact sufficient to put him on inquiry as to complainant’s equity, either at the time of his purchase, or at, or before thе time he paid the purchase-money, or otherwise parted with suсh value. — Moore v. Clay, 7 Ala. 742; Johnson v. Toulmin, 18 Ala. 50; Ledbetter v. Walker, 31 Ala. 175; 2 Smith’s Leading Cases, (White and Tudor) 73, 74; Ware v. Curry, 67 Ala.; Thames v. Rembert’s Adm’r, 63 Ala. 561; Buford v. McCormick, 57 Ala. 428; Saffold v. Wade’s Ex’r, 51 Ala. 214; Hallet v. Collins, 10 How. (U. S.) 174; Nantz v. McPherson, (7 T. B. Monroe, 597); 18 Amer. Dec. 216; Jackson v. McChesney, (7 Cow. 360) 17 Amer. Dec. 520; Gilpin v. Davis, (2 Bibb, 416), 5 Amer. Dec. 622.

And while a mere mortgage or deed of trust taken as security ‍‌‌‌‌​​​‌‌‌​​‌‌​‌‌​​​​‌‌​​​​‌​‌​​​‌​‌​​‌‌​​‌​​​​​‍for a pre-existing debt does not constitute the mortgagee a bona fide purchaser for value, yet the rule is different where the creditor takes a mortgage for a debt contemporaneously contracted, or extends the day of payment of an antecedent debt, or acсepts an absolute conveyance in payment of such antеcedent debt, for in the latter case the debt is extinguished and the relation of the parties is entirely changed.— Wells v. Morrow, 38 Ala. 125; Saffold v. Wade’s Ex’r, supra; Thames ‍‌‌‌‌​​​‌‌‌​​‌‌​‌‌​​​​‌‌​​​​‌​‌​​​‌​‌​​‌‌​​‌​​​​​‍v. Rembert’s Adm’r, supra; Code (1876) §§ 2166-7. As to a partial payment made by the purchaser before notice, he is protected as having acquired an equity, pro tanto — Sewing Machine Co. v. Zeigler, 58 Ala. 222.

The answer of a defendant can be taken as evidenсe only so far ‍‌‌‌‌​​​‌‌‌​​‌‌​‌‌​​​​‌‌​​​​‌​‌​​​‌​‌​​‌‌​​‌​​​​​‍as it is responsive to the allegations and interrogatories of *13the bill, but the denials of the answer must be positive, clear аnd distinct, and not evasive, uncertain or illusory. Mere matters of defense, which are averred in the answer, though in form responsive, cannot be taken as evidence, unless sustained by proper proof in the ordinary way. — Adam’s Eq. 363, (note); Dunn v. Dunn, 8 Ala. 784; fValker v. Miller, 11 Ala. 1067; Wakeman v. Grover, 4 Paige, 23.

The statements of Craft’s answer, made to the bill in this case are nоt, we think, sufficiently distinct and unequivocal, when tested by the foregoing cardinal principles. His allegations, furthermore, as to Elliott’s agreement tо allow, as a credit on the purchase-money of the land, ‍‌‌‌‌​​​‌‌‌​​‌‌​‌‌​​​​‌‌​​​​‌​‌​​​‌​‌​​‌‌​​‌​​​​​‍the cost of the conveyance, back taxes and other items specified, present matters of defense not responsive to the bill, аnd should have been proved otherwise than by Craft’s sworn answer. The evidеnce, therefore, fails to sustain these items, and they were properly disallowed.

The appellant further assigns as error, the overruling of his demurrer, which was based upon the suggestion that Tousmiere should, have bеen made a party to complainant’s bill. The rule of practice established in this court is, that where such a demurrer is interposed for want of proper parties defendant, and the answer shows that all interested parties are really, and in fact before the court, there is no good reason why complainant should be compelled to amend his bill, or that it should be dismissed ; the objection may be properly disregarded, and there is no error in proceeding to a final decree. — Chapman v. Hamilton, 19 Ala. 121, 125.

The decree of the Chancellor is affirmed.