50 Ala. 213 | Ala. | 1874
The purchaser of lands in this State, if the same are not paid for at the sale, holds them in trust for the vendor, until the purchase-money is paid; unless it is otherwise agreed between the parties at the time of the purchase. This is called the vendor’s lien. Napier v. Jones, 47 Ala. 90; Campbell v. Roach, 45 Ala. 666; Woods v. Sullens, 44 Ala. 686; Latham v. Staples, 46 Ala. 462. All persons who deal with lands so situated, with notice of this lien, are affected by it; and this lien, with notice of its existence, will prevail over any subsequent title acquired to the same lands, except by decree of some court where the lien itself has been litigated. Bulger v. Holly, 47 Ala. 453; Bunkley v. Lynch, 47 Ala. 210; Sampley v. Watson, 43 Ala. 377; and cases supra. It follows from this, that the complainants in this case are entitled to a decree of foreclosure against the lands described in their bill, that is, the “ Clendenin place,” containing 189.2 acres, if the claim of the defendant Oates .is not to be preferred to their lien.
The answer of Oates sets up two grounds, upon each of which, if true, he rests his protection against the complainants’ lien. The first ground stands upon the mortgage, made an “ Exhibit ” to the answer; and the other stands upon the sheriff’s deed, which is also an “ Exhibit ” to the answer. Oates offered no evidence except the answer itself and the “Exhibits” annexed thereto. The answer is only evidence when it is responsive to the allegations of the bill. 1 Brick. Dig. p. 738, §§ 1466, 1467. The allegations of the bill touching the mortgage, in this case, are quite indefinite. But the
It is a well-settled principle in equity, if a party has two funds to which he may resort for payment, he will be compelled, in favor of a creditor having a junior lien, to resort to the fund not bound by the junior lien. Nelson v. Dunn, 15 Ala. 501; Chapman v. Hamilton, 19 Ala. 121; also, Relf v. Bibb, 43 Ala. 519. He should show that the funds provided for his security and indemnity have not been wasted by his negligence. Henderson v. Huey, 45 Ala. 275. In this case, the mortgagee should be confined to the lands and personal property conveyed in his mortgage, without embracing the lands described in the complainants’ bill. Besides this, the answer does not show that there was any decree, on his final settlement, against Bell, which he had failed to pay, except, perhaps, for costs; and if there had been any failure to pay the costs in the probate court, the remedy provided by the mortgage was a sale under the mortgage. At this sale the complainants could have had the lands not held under their lien first sold. Relf v. Bibb, 43 Ala. 519, supra. Opportunity would thus have been afforded the complainants to force the lands conveyed in the mortgage to sell for such a price as would have discharged the mortgage liabilities. Owens testifies, that the lands were worth $1,500 ; yet, as the mortgage liability was settled, putting it at the figures stated in the answer, they are sought to be held by Oates under the mortgage, without sale or foreclosure, at the sum of $528, a little above one third of their “ cash value,” as Owens testifies. The claim thus presented under the mortgage, by the défendant Oates, is not sufficient to bar the complainants’ right of foreclosure under their lien, asserted in their bill.
The judgment of the court below is reversed, and the cause is remanded to the court below for further proceedings according to law. Bell and Oates will pay the costs of this appeal, in this court and the court below.