Day v. Preskett, 40 Ala. 624

40 Ala. 624 | Ala. | 1867

JUDGE, J.

That there was a mistake in the description of the land, in the bond for titles from Day to McYay, is not controverted; and it is not contended that the chancellor erred in cerrecting it. It is insisted, however, that the chancellor did err in decreeing that Day should convey the land in question to the complainant below, without providing for the payment of that portion of the purchase-money which Day alleges is still due to him, on account of his sale of the land. The balance of purchase-money thus claimed by Day, it is said, amounts to between eighty and one hundred dollars, and is claimed to be due upon the note of Barnett and Jennings for one hundred and eight dollars, which was executed by them to the complainant, for part of the purchase-money, on the re-sale of the land by the complainant to them, and which was transferred to Day, in exchange for a note held by him on McYay, for a balance of the purchase-money due to Day on the sale of the land by him to McYay.

Conceding, for the sake of argument, that a balance was due to Day on the note of Barnett and Jennings, still it affords no legal reason against the decree for specific performance, as made by the chancellor. The notes exchanged, as above stated, grew out of separate and distinct contracts, and, consequently, were separate and distinct debts. By the exchange, each party divested himself absolutely of the ownership of one debt, and became the proprietor of another and a different debt; so that it was not a transaction in which the debt of Day against McYay took a new form by renewal or extension. By the transaction, Day not only parted with his debt against McYay, but also with the vendor’s lien which existed for its security; for such a Hen, being an incident to the debt, necessarily accompanies a transfer of the latter, if there be no stipulation to the contrary. — Conner v. Banks, 18 Ala. 42; Kelly v. Payne, 18 Ala. 370.

It results, then, that there was nothing due to Day on the contract which the chanceHor required him specifically to perform; but, if anything was due him, it was on the note of Barnett and Jennings, which, as before stated, grew out of a distinct and independent contract. It is true the vendor’s Hen for the security of the note of Barnett and Jennings passed to Day with the transfer of the note to him; but, if entitled to its enforcement, he should be the actor in a separate and distinct proceeding for that purpose.

The record, however, shows some facts in relation to this note on Barnett and Jennings, which it may not be improper to mention. The west half of the south-west quarter of the section was, at the instance of Day, subjected to sale for the payment of the note, under a decree in chancery, against Barnett and Jennings; but the land brought at the sale only twenty dollars. By the exercise of due diligence, Day might have realized the whole of his debt from this sale, as the land was evidently more than worth it; or, if it had been necessary, he might, in the same proceeding, have subjected the entire quarter-section to the payment of the note, by making the proper allegations and evidence as to the mistake in his bond for title to McYay. Thus it appears that, by his own want of diligence, Day exhausted his lien, without realizing the full payment of his debt; and it also- appears that the note itself was subsequently disposed of by him in a contract with Barnett and Jennings, by which he attempted to acquire the east half of the quarter-section, that had been sold by him to McYay, but not described in the bond for title by mistake. The position of Day, then, was that of a vendor, attempting to assert a lien, with neither debt nor lien existing in his favor.

The objection that the evidence does not correspond with the ease made by the bill, cannot be sustained. The testimony supports the allegations of the bill substantially, and that is all that is required. — Eldridge v. Turner, 11 Ala. 1050; Gilchrist v. Gilmer, 9 Ala. 985.

Decree affirmed.