61 So. 883 | Ala. | 1913
Complainant (appellee) filed his bill to enforce a vendor’s lien. It is averred that complainant had in 1910 sold to defendant his mill property, consisting of a small parcel of 1% acres of land situated in DeKalb county and described in the bill by metes and bounds. The bill proceeds: “On said lands is situated a saw mill, shingle and grist mill and cotton gin combined, which have been operated since 1897, and said lands are otherwise known as the B. A. Gaines mill property.” But whether this language is quoted from the conveyance, which is not made a part of the bill, or whether it is intended by the pleader as his own further description of the subject-matter of the conveyance, is not clear. The consideration of the sale is described as “$1,300 and the conveyance to orator by the said Hanvey of about 3% acres of land, said $1,300 to be evidenced” by promissory notes payable at fixed dates in the future. The prayer was that a lien be declared upon “said lands,” and that they be sold for the satisfaction of the note then past due. Appellant’s objection to the chancellor’s decree overruling his demurrer is that there was lack of judicial concurrence in his contention that no vendor’s lien arose on the facts averred.
The vendor’s lien is a creature of equity, brought into being when land is conveyed, for the relief of the vendor against the unconscionable vendee, who would retain the property without paying the price. The court does not so exercise itself for the relief of vendors of personalty. And where there has been a sale of both real and
More narrowly defined, the question is whether, on the meager facts averred, the property referred to in the bill as “a saw mill, shingle and grist mill and cotton gin combined,” must be taken and held to have constituted a part of the consideration on which defendant conveyed the tract of 3% acres and promised to pay the sum of $1,300, and, if so, then whether any part of the property so referred to must for the purposes of the case be considered as personalty. Whether the bill is artfully drawn, as appellant suggests, or artlessly, in that it makes at best a meager statement of the facts, we cannot know. On demurrer we must construe it most strongly against the pleader, appraising it, however, at its fair value, and without assuming, either to help or hurt complainants case as stated, the existence of facts of which the bill contains no intimation.
Complainant was not required to set out the deed he made in verbis, though he would have simplified the case had he done so. He might plead it according to its legal effect, and this he has undertaken to do. The purpose of the bill is to have a lien declared on the “land.” If the deed which complainant made had described the land in question by metes and bounds, with
But if, as appellant seems to assume, and as perhaps we might infer without straining too much, the deed which complainant made, after describing the land by metes and bounds, proceeded to recite that “on said lands is a saw mill, shingle and grist mill and cotton gin combined, which have been operated since 1897, and said lands are otherwise known as the R. A. Gaines mill property,” it is not probable that the “saw mill, shingle and grist mill and cotton gin combined,” were referred to for the sole purpose of further description of the land upon which they stood. The bare land was sufficiently described by metes and bounds and by its designation as the “R. A. Gaines mill property,” and, in the absence of words of bargain and sale in connection with those structures, we have no doubt that the mention of the “saw mill, shingle and grist mill and cotton gin combined,” ought to be taken as evincing the common understanding and intention of the parties that they passed with and as part of the land. That the building in which it is reasonable to suppose the machinery has been, housed is a part of the freehold there is no occasion to doubt. “With us, mere use in connection with a business does not necessarily so annex machinery to the realty as to constitute it a part of it. Intention is more or less a factor in such inquiries.” — Rogers v.
Affirmed.