Jones v. Kennedy, 138 Ala. 502

Jones v. Kennedy

138 Ala. 502 | Ala. | 1903

McCLELLAN, C. J.

In no possible view of this case upon the evidence did F. C. McElvy, deceased, have a vendor’s lien upon the land in question; nor did any trust thereon result in his favor. — Chapman v. Abraham, 61 Ala. 108.

The paper signed by Mrs. Jones and her husband importing a promise on their part to pay six hundred dollars to F. C. McElvy, “for the purchase of the following described lands,” describing' the lands involved here, *505is not in terms a mortgage on the lands to secure the payment of that sum, nor does it purport to create or to declare any lien upon the lands to that end. There being no vendor’s lien nor resulting trust, if any lien securing the payment of the money advanced by F. O. McElvy to Mrs. Jones to pay the purchase price of the lands to Humphrey came into existence at all, it was that of an equitable mortgage, and it was upon the complainant to prove the existence of such mortgage in favor of his testator. This issue turns upon a conclusion as to the intention of the parties. The inquiry is not foreclosed by the writing signed by Mrs. Jones, even assuming that it was delivered to F. O. McElvy and its execution thereby perfected. The most that can be said of it is that, it affords some grounds for an inference that the parties intended this money to be a charge on the lands. There is no expression in the paper of such intention. On the other hand its reference to the money as being “for the purchase” of certain lands may have been inserted as a mere statement and identification, so to say, of the consideration for the promise to pay. Its terms are by no means conclusive upon the inquiry; and to show that the parties never intended to charge the lands, thereby rebutting whatever inference might be deducible from the writing of it affords any inference, would not be to vary or contradict the instrument. The writing, in other words, is such as the parties might well have made if they intended to charge the land, but on the other hand, it is also such as they might well have made without any such intention. This is the most that can be said of it favorably to the contention of the complainant. And thus interpreted and understood, the question of intent is still at large and soluble upon evidence aliunde. Such evidence has been adduced in the case, and upon a careful consideration of it, we are satisfied that neither Mrs. Jones nor F. G. McElvy had any intention of fixing a lien on the lands to secure the repayment to the latter of the money he paid to. Humphrey for the conveyance by the latter to Mrs. Jones.

*506The decree granting the relief prayed must, therefore, be reversed, and a decree will be here entered denying relief and dismissing the bill.

Reversed and rendered.