Hightower v. Rigsby

56 Ala. 126 | Ala. | 1876

MANNING, J.

A vendor of land, who sells the same on a credit, and, without having received payment of the purchase money, or taking back a mortgage or any other security for the payment of it, executes his conveyance, containing an acknowledgment of satisfaction in full of the price,-— notwithstanding this, is held in equity entitled to a lien on the land, and a decree to have it sold for the payment of the purchase-money, so long as the land remains the property of the vendee, or his heirs, or any person holding it by a merely voluntary conveyance bom him or them. But, when the estate has passed to a purchaser for a valuable consideration, who has paid the purchase-money, the original vend- or’s lien is unless he shows that such purchaser acquired it with information or knowledge that tbe first price had not been paid, or was informed thereof before he had paid the consideration for which the property was sold to him. The burden of proving this is on him, who, though he had not received the price for which he sold the land, yet made a conveyance of it, in which he certified to the world that he had. Any person, who desires to buy the land after-wards, is justified in supposing that what is so certified is true.

2. We shall not discuss the question of veracity in this cause, between appellant, who was a transferree of the note for a part of the purchase-money, and Andrew Bigsby, the maker of it. Samuel Bigsby, the subsequent purchaser, bought the land in controversy, for a valuable consideration, from Andrew, and paid the same to him. The purchase was agreed on in July, and consummated, by payment and conveyance, on the 16th of September, 1872. When appellant told Samuel Bigsby that he claimed a lien on the land, he does not say. It may have been after the purchase of the latter was complete. Indeed, it must have been so, according to defendant’s testimony; for he said it was about the last of September that appellant informed him of his claim. True, he admitted that, before the deed was made, certain persons named had told him that appellant had said he had a lien on the land, but that they did not think he had, and would not give, as one said, “ a pinch of snuff,” or as another said, “ a lead pencil ” then in his hand, for appellant’s lien. How such a lien was supposed to have been created, does not appear to have been explained in these conversations; and as appellant Had not, so far as the record shows, ever owned the land, or been in any way connected with the title, what was said by third persons about his claiming a lien, in a conversation with defendant, in which the pretense was at the same time derided, might be regarded by defendant as mere idle talk. It was not such information as made it necessary for him to seek appellant and inquire of him about the matter.

3. Besides this, complainant was not an indorsee of the promissory note made by Andrew Bigsby. Mr. Heaton, to whom it was given, and who sold the land” to Andrew Bigsby, seems to have transferred the note to appellant by delivery merely, and therefore without recourse. Upon this subject, the allegation in the bill is: “ Orator charges, that he is the bona fide owner of said note, that it is due and unpaid,” &g. The equitable lien of a vendor, for the price of land that he has conveyed to the purchaser, is not stipulated for in the contract of sale. It is “the creature of courts of equity;” and tbe principle upon which they have established it 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 to pay the full consideration money.” — 2 Story’s Eq. § 1219. The lien is raised for the benefit of the vendor. But, when the vendor transfers the note for value to another person, without indorsing it, or by an indorsement without recourse, and without an engagement or guaranty that it shall be paid, then, according to the weight of adjudged cases, the right to the vendor’s equitable lien becomes extinguished. — 2 Story’s Eq. § 1227 of the 12th Ed.; Hall’s Ex’rs v. Click, 5 Ala. 363; 1 Leading Cases in Equity, 3d Amer. Ed. Hare & W.’s notes, 366 eb seq.

In White v. Stover (10 Ala. 443), some views are expressed by Goldthwaite, J., not agreeing with what wre have here said. But his observations went beyond the points it was necessary for the court to decide. The suit there was by the vendor himself, upon notes payable to him, which, after he had transferred them without indorsement to another, were returned to him, and he “ gave his own in place of them;” from which it seems manifest, that his transfer of them was not without recourse, but upon some engagement that he was to see them paid. After this, the land was sold at sheriff’s sale, under an execution against the vendee, to purchasers who had notice that the notes for the purchase-money had not been paid, and that the vendor claimed a lien therefor on the land. The court enforced the lien in the vendor’s favor. The learned judge was at fault, perhaps misled by the headnote, in saying of Hall’s Ex’rs v. Click (supra), that “ there the note was assigned ivitliout recourse; though we do not perceive how this would make a different case, or change the result.” It was not assigned at all. As in the present case, it was transferred by delivery merely; but it was alleged that, when the vendor so transferred the note, he had promised to pay it, if the money could not be made of the vendee, its maker. This, though, was denied; and the case made was that of a transferree by delivery, of a note given to a vendor for the land sold by him, claiming as such transferree, simply, the benefit of a vendor’s equitable lien on the land for the payment of the note. See latter part of opinion of Collier, C. J., 5 Ala. 366. The court decided that the transferree was not entitled to the lien.

What Judge Goldthwaite says further, in White v. Stover, about the “ similitude between a lien of this description and a mortgage,” to the effect that there is not much difference between them, must be regarded as his own individual views, though worthy, as such, of great respect. For, in Houston v. Stanton, in the very next volume of our reports (11 Ala. 412), the nature of this equitable lien of a vendor is more particularly considered; and Collier, 0. J., in the course of his opinion, quotes, and adopts, without disapprobation by any of the other judges, the views of Mr. Justice Story, as expressed in Gilman v. Brown (1 Mason, 191). He says of this equitable lien of a vendor in land that he has conveyed, it is “the mere creature of a court of equity, * * * , aright which has no existence until it is established by the decree of the court in the particular case, and is then made subservient to all other equities between the parties. * * * It is not, therefore, an equitable estate in the land itself, although sometimes that appellation is loosely applied to it.” This, it will be perceived, makes such a lien quite a different thing from a mortgage. "When established, it has some of the incidents of a mortgage, perhaps. It is a security, like it, for the payment of a debt. But it can hardly be in harmony with our registration laws to give to it any greater extension or reach than is conceded to it in Hall’s Ex’rs v. Click, Grigsby v. Hair, 25 Ala. 327, and other cases agreeing with them. — See the cases collected and compared in 1 Leading Ca. in Eq., with Hare & Wal. Notes (3d Amer. Ed.) 362, et seq.

Let the decree of the chancellor be affirmed.