124 Ala. 633 | Ala. | 1899
— It is a familiar principle in this State, that in the absence of an agreement to the contrary, the vendor retains a lien on land for the unpaid purchase money, although he has conveyed to the vendee by absolute deed, reciting therein, that the purchase money had been paid, which lien will be enforced against all persons, except bona fitle purchasers without notice. When the personal obligation of the vendee has been taken for the purchase money, without more, the law implies the existence of the lien. But if it be shown that the vendor trusted exclusively to the credit and responsibility of the vendue, and did not look to the lands as security, or did some act, which evidenced an intention to waive or discharge the lien, — such as taking independent security from the vendee, — the existence ot the lien would be repelled. The burden is on the purchaser to show that the lien has been waived or displaced. — Bankhead v. Owen, 60 Ala. 457; Stringfellow v. Ivey, 73 Ala. 209; Glover v. Walker, 107 Ala. 540; 3 Brick. Dig. 613, §§ 4-46. “If under all the circumstances, it remains in doubt, then the lien attaches. The difficulty lies in determining what circumstances are to be deemed sufficient to repel or displace the lien.”— 2 Story Eq. Juris., § 1224.
2. We might have no difficulty, under these rules in holding that the complainant, when she conveyed the lands in question to respondents, by deed of the 28th of May, 1894, and took what is termed a certificate of deposit from Shelley I). Dowling, one of the respondents, for $2,197.22, — the same being for the entire purchase money for the lands, less $300 paid to her in cash, — did nothing in that act alone which evidenced an intention on her part to waive her vendor’s lien on said lands for the payment of the purchase money therefor. It was nothing more, in substance and effect, than an acknowl
3. The complainant held this paper until the 28th of October, 1898, and received various sums on it at different times, in cash and by the purchase of goods from Shelley I). Dowling, amounting in the aggregate, as the evidence tends to show, to sums sufficient to reduce the debt to about $1,000. On that date said Dowling executed and delivered to her a paper of which the following is a copy: “Ozark, Ala., Oct. 28th, 1898. A Ye or either of us promise to pay Mrs. Mary E. McCall, ten dollars on the first day of each month during her natural life, for value received. (Signed) Shelley 1). Dowling, Drucilla Dowling.” As to the giving of this paper, complaint sets up that she received it under protest and earnest objection, and to enrploy her language, — “that Shelley 1). Dowling came to her room alone, with the ten dollar note and asked of her to see the certificate of deposit, and getting possession of it, placed in her lap the note and then without her consent and against her will, took away the certificate of deposit, leaving the ten dollar note with her,” and to this effect she substantially deposed.
But, Shelley I)., his mother, Drucilla, and Mrs. Anna -I. Dowling, — both the latter sisters of complainant,—
Mrs. Drucilla DoAvling testified, that complainant after Avards told her and Mrs. Anna J. Dowling, “that she Avas perfectly satisfied and delighted Avith the arrangements, and that she felt better satisfied on account of Shelley’s health, and that she felt like, if anything happened, she would he safe, as my name was signed to the note.”
4. When interrogated as to the same matter,, Mrs. Anna J. DoAvling testified, that soon after the time of the date of the execution of said note, the complainant told her that “she Avas Avell satisfied with the arrangements; that ten dollars per month was enough; that it would not take so much to pay Dr. McNair and her other expenses, and she said she wanted Drucilla Dowling to sign the note wihich she had done, and that now she Avas Avell pleased, as she Avanted some security, as Shelley
It would seem after all this, that the preponderance of the evidence is in favor of the respondents in the account they give of the transaction; that the complainant is mistaken in her recollection thereof, and that said note was taken freely in lieu of the certificate of deposit. Nor do the terms of the paper itself indicate that respondents were actuated by a disposition to defraud complainant, and impose on her a hard and unconscionable bargain. In eight years and four months, respondents by paying $10 a month, would pay the entire $1,000 which they say , and the evidence tends to show, only remained due on the purchase price of said land. There is no evidence that it is not a good and solvent note; and, moreover, it contains no stipulation that the obligation to pay ceases, at any other time than at the death of complainant, whether that event shall happen earlier or later than the $1,000 shall have been paid.
We need not decide Avhether this note carries Avith it a vendor's lien on the land or not. We make no deliverance on that subject. All avc do decide is, that both parties are committed to the terms of said note, as for the payment of the balance due on said lands, and it is of binding force betAveen them. This bill Avas filed on the 22nd December, 1898, AA'lien nothing ovas due on the note, and until the respondents are in default in their payments to an amount of AAdúch a court of equity will entertain jurisdiction, it Avould be premature to consider the question of Amador’s lien grooving out of the transaction.
It folloAvs, the decree of the court below must be re-A'ersed. One will be here rendered, dismissing the case nit of this court and the court beloov.
11 ever sed and rendered.