89 Ala. 575 | Ala. | 1889
It is plain that the case turns on the question of fact, whether the notes, which are claimed to be a vendor’s lien on the land, were purchased by the complainant, or were merely paid by him at the defendant’s request. If he merely advanced the money by way of loan to pay them, he acquired no right to enforce the lien. If he became the s transferree of them by purchase, whether verbally or in writing, he did acquire such right.—Pettus v. McKinney, 74 Ala. 108; s. c., 56 Ala. 41; Weaver v. Brown, 87 Ala. 533; Code, 1886, § 1764.
In our opinion, the decided preponderance of the evidence is favorable to the conclusion, that there was no agreement for a purchase or transfer, express or implied. Excluding all hearsay testimony in the case, which should exert no influence on our finding, we are satisfied that the complainant fails to show himself a transferree by purchase. Julius Rast, who represented the payee, his father, in negotiating the transaction, denies any such agreement or understanding. He testifies to a mere payment, not to a purchase. The defendant swears to the same thing. The notes were delivered to the defendant, and not to the alleged purchaser; and the defendant asserts that his understanding was, that they were left only for safe custody with the complainant. This is further corroborated by the fact, that the complainant charged the sum paid ($155.00) as so much advanced on his running account for the year against the defendant, which was secured by a mortgage on the defendant’s crop and other personalty. This mortgage would have been itself a waiver of the lien, unless there had been an agreement to the contrary between the contracting parties.
The chancellor erred in the conclusion reached by him, to the effect that the complainant was the transferree of the notes by purchase. His decree is reversed, and a decree will be rendered in this court, dismissing the bill.
Reversed and rendered.
