94 Ala. 576 | Ala. | 1891
— These cases were tried as one in the court below, and are so submitted and will be considered here.
“The rule as to proof of bona ficle purchase is, that the party pleading it must first make satisfactory proof of purchase and payment. This is affirmative, defensive matter in the nature of confession and avoidance, and the burden of proving it rests on him who asserts it. Ei incwmbit probatio qui dicit. This done, he need not go further, and prove he made such purchase and payment without notice. The burden here shifts, and if it be desired to avoid the effect of such purchase and payment, it must be met by counter proof that, before the payment, the purchaser had actual or constructive notice of the equity or lien asserted, or of some fact or circumstance sufficient to put him on inquiry, which, if followed up, would discover the equity or incumbrance.” — Craft v. Russell, 67 Ala. 9, which collects the authorities; Taylor v. A. & M. Asso., 68 Ala. 229; Creswell v. Jones, Ib. 420; Barton v. Barton, 75 Ala. 400, 402.
In the case at bar, Mrs. Sloan sets up that she became a mortgagee of the land in controversy for value, and without notice of the claim now advanced by John G. Winston, Sr., for purchase-money alleged to be due from Edward Winston, the mortgagor, who held the legal title, and also without notice of the claim now advanced of Nancy Winston, the wife of said Edward, which proceeds on the theory that the land was in part paid for with funds belonging to her statutory separate estate, and is sought to be worked out through a declaration of trust in her favor for reimbursement. That Mrs. Sloan did lend Edward Winston the money for which a mortgage was taken, and that the mortgage was duly executed by said Edward and his wife upon this land to secure its repayment, are facts not controverted in the case. The protection she invokes as a bona fide purchaser is sought to be defeated by John G. Winston, Sr., in respect of his claim for unpaid purchase-money, by proof of possession by him of a part of the land — a certain forty-acre parcel — embraced in the mortgage at the time of its execution, which possession, he insisis, was constructive notice to her of his lien upon the whole tract for the balance of the price at which he sold to
Was Mrs. Sloan chargeable with notice of John G. Winston’s lien for purchase-money, by reason of his possession at the time the mortgage was executed of a forty-acre subdivision of the land? We think not. The uncontroverted facts in that
The fact of John G. Winston’s Sr. possession of this parcel
The rulings and decree of the chancellor in all other respects have been carefully considered. We concur with his conclusions on exceptions to the register’s report, and in holding that Hodges and Matheny had notice of the claims of John G. Winston, Sr., and Mrs. Nancy Winston, before their rights accrued, and hence that their claims are secondary to those of the respective complainants. That Mrs. Winston is entitled to reimbursement out of the land, and that John G. Winston, Sr., has a valid vendor’s lien upon it, except as against Mrs. Sloan, we do not doubt. Mrs. Sloan, however, must be first paid; and in failing to so decree, the chancellor erred.
The decree is reversed, and the cause remanded.