The burden was on appellee to prove that appellant purchased the land with notice of the lien which appellee sought to foreclose. This lien arose from the sale and conveyance of said land to W.L. Anderson, who afterwards conveyed same to appellant. It does not appear that it was expressly reserved either in the note or the deed. It was, then, strictly a vendor's lien — a creature of equity, implied to secure unpaid purchase money. The legal and superior title passed by deed to the respective vendees. This is the effect both of the allegations and proof on the part of the appellee, who sought to have appellant bound by the judgment as a subsequent vendee, by alleging that he purchased with notice. Appellant plead the general issue only, and offered no proof. We find no evidence in the record that appellant had such notice.
The consequence of a failure to produce a deed at the trial upon proper notice from the opposite party is to make secondary evidence of its contents competent, and not to prove the contents as alleged.
Because appellee failed to prove that appellant acquired the land with notice of the alleged vendor's lien, the judgment foreclosing that lien against appellant can not stand. McAlpine v. Burnett,
Reversed and remanded. *Page 22