113 Ala. 597 | Ala. | 1896
On the averments of the bill a vendor’s lien existed in favor of John A. Knight on the land sold and conveyed by him to O. W. Knight for the purchase money thereof. It was in nowise necessary that a lien should have been reserved : it arose from the sale on credit and conveyance of the land, and it is quite an error to suppose that the taking of the promissory note of the purchaser for the amount of the purchase money, no other security therefor being taken, was a waiver of the lien.
It was not incumbent on the complainants to aver that the respondent, Nancy McQueen, when she purchased a part of this land from C. W. Knight, had notice of the existence of the lien now sought to be enforced. That she was a bona fide purchaser for value without notice is defensive matter to be brought forward, if such be the fact, by her answer.
The bill shows that Amanda W. Knight was of unsound mind on May 20th, 1895, when the amended bill was filed, in which she sues by next friend. This is not to say that she was non compos mentis at any time theretofore, and the presumption is that she was endowed with contractual capacity when the debt due by C. W. Knight for purchase money of this land was in part transferred to her. But even if it appeared by the bill that she was of unsound mind when that transaction occurred, the presumption, as the matter is now presented, would be that she was efficaciously represented by a guardian in and about said transfer to her. The demurrers which proceed on the idea that it appears
John A. Knight's will was never probated. Pie owed no debts, his heirs at law were desirous of carrying out the provisions of the will, and did carry them out, without probating it. There was, therefore, no necessity to probate the will or to have an administration of the estate. The note of C. W. Knight belonged, after the death of John A. Knight, to the distributees of his estate. His widow survived him, and his heirs at law were Mrs. O. A. Coleman, J. PI. Knight, Mrs. Joe Thigpen, J. A. Knight, and the complainants, A. R. Knight and Amanda W. Knight. It was the desire of John A. Knight, as evidenced to his widow and distributees by his unprobated will, that of the sum due from C. W. Knight as purchase-money for the land in question, his widow, Mrs. Mary Lou Knight, should have one hundred and fifty dollars, his son J. A. Knight, Jr., should have one hundred and fifty dollars; and that his daughter, Amanda W., should have the remainder of the claim against C. W. Knight. The bill further shows that Mrs. Coleman, J. H. Knight and Mrs. Thigpen, the' only distributees of John A. Knight’s estate except A. R. Knight, who as such had any interest in the claim against C. W. Knight adverse to the disposition thereof attempted to be made by the will, desiring and intending to carry out that disposition, “turned over and by delivery transferred all their interest in said note and the amount due thereby to said Mrs. Mary Lou Knight, John A. Knight and Amanda W. Knight, ’ ’ and that subsequently the complainant purchased the interests of Mrs. Mary Lou Knight and J. A. Knight, Jr., in said note, and they by delivery transferred the same to him, and that he and the other complainant, Amanda W., “are now the sole owners thereof.” These averments are quite sufficient to show that the complainants are the owners of the claim for purchase money, and as such entitled to maintain this bill, to which the heirs and distributees of John A. Knight, as well as C. W. Knight and Nancy McQueen, are made respondents, to declare and enforce a vendor’s lien against said land for the amount due on said note. If there is any question as to the proportions to be observed in dividing the proceeds of the claim between the complainants, it is one
The assignments of demurrer are without merit, and the decree of the chancellor is affirmed.
