104 Ala. 282 | Ala. | 1893
— The lien of a vendor who has conveyed the lands to the purchaser is a charge upon the lands sold, which a court of equity will raise and enforce for the security and payment of the purchase money. It rests upon the doctrine that it is inequitable for a purchaser to retain the lands of the vendor without paying the purchase price. The lien will not be raised except for the purchase money. In a case of that character, it is competent for the vendee to show by parol that a promissory note, reciting that it was given for the purchase money of the land, was in fact given, in part, for such purchase money, and, in part, for another indebtedness. — String fellow v. Ivie, 73 Ala. 209. But such is not the nature of the present case. There was no conveyance of the land by Hester to Hunnicutt. The equitable lien of the vendor did not arise. .The parties, by express contract, created the , security which it was designed Hester, the vendor, should retain, which was evidenced by the writings they executed. Hunnicutt executed to Hester his promissory note for $500, payable at a designated time. Hester, in turn, executed to- Hunni
The complainant is entitled to $500, and the interest thereon — the amount of the note, secured by the bond for title — as a charge upon the lands. Against this, Hunnieutt seeks, by cross bill, to recoup damages for breach of warranty of title to a part' of the land sold him consisting of a certain mill race over lands alleged to be in the occupancy of, and belonging to, the James heirs, who have ousted and deprived him of the use and enjoyment of the race. It is alleged that Hester had no title, and can make none, to this race ; in consequence of which he, Hunnieutt, is materially damaged. The answer puts these allegations in issue and denies the right to the relief claimed by the cross bill, in this respect. We gather from the case that there was a water mill situated on the land purchased by Hunnieutt from Hester, and that the land was principally valuable for the purposes of that mill. The mill had been there and in operation for more than forty years. The water by which it was propelled flowed from a creek, through a race erected, in part, on and through adjacent lands, which, at the time of the sale to Hunnieutt, belonged, in part, to the heirs of Isaac James and, in part, to one McNatt. Hester had, for manv years, owned the lands sold to Hunni
Reversed and rendered.