73 So. 980 | Ala. | 1917
— The bill is to enforce a vendor’s lien on lands sold and conveyed, and is between the original parties to the sale. It alleges a sale and conveyance of the legal title, and attempts to show that the purchase price has not been paid by alleging that on account of fraudulent representations on the part of the vendee the vendor was induced to accept notes on third parties as a part of the purchase price; that the notes so agreed to be accepted were not of the value represented to be, but were of much less value, and were known to be so by the vendee when he made the fraudulent representations as to their value, and that the representations were made for the purpose of inducing the vendor.to accept them as payment; that'when the vendor discovered the fraud, or soon thereafter, he tendered the notes back to the vendee and demanded the payment of the purchase price, and, the demand being refused, he filed this bill to enforce a vendor’s lien as to the purchase price or the agreed or nominal value of the notes.
The vendee demurred to the bill, chiefly on the ground that the bill affirmatively showed a waiver of the vendor’s lien by the vendor’s accepting the notes, which were a lien on other property, in lieu of the vendor’s lien which the law otherwise creates in his favor to secure the payment of the purchase price of the land. The trial court overruled the demurrer, and the vendee prosecutes this appeal.
We are of the opinion that the trial court ruled correctly, and that the bill does not on its face show a waiver of the vendor’s lien, whatever may hereafter be shown by the answer or the proof. The rule's of law governing cases such as that shown by the averments in this bill were well stated and decided by this court in the case of Buford v. McCormick, 57 Ala. 432 (the opinion quoting from other authorities), as follows: “In Tobey v. McAllister, 9 Wis. 463, it was ruled that ‘when a party sold land, and received a part of the consideration money, and was induced to accept notes and mortgages for the balance, which were worthless, and which the purchaser knew to be so at the time of the sale, this was a fraud on the vendor, and he had a lien on the land for the purchase money.’ The court, quoting from Mr. Story, said: ‘The principle upon which courts of equity have proceeded in establishing this lien is that a person who has gotten the estate - of another ought not in conscience, as between them, to be allowed to keep it, and not pay the full con
The case made by the bill clearly falls within the above rules.
Affirmed.
