75 Ala. 383 | Ala. | 1883
The lands in controversy in this cause were first sold by Pay and wife to Miss Knight, and afterwards sold by her to her brother, the appellant. We need not consider any rights which may be supposed to arise out of these transactions. Nor need we consider the question of vendor’s lien, as between Knight and the Sandfords, his vendees. These questions are immaterial, in the view we take of this case.
Knight, the appellant, held three notes, made by the Sand-fords, payable to himself, and secured by a mortgage on the lands in controversy, with power of sale on default. One of
While all the notes remained the property of Knight, the mortgaged lands were equally bound for the payment of each. When, however, Knight traded and transferred one of the notes to Mrs. Ray, retaining the others, although the transfer was by mere delivery, he clothed her with the right to be first paid out of the property mortgaged.—Doe ex dem. v. McCloskey, 1 Ala. 708; Cullum v. Erwin, 4 Ala. 452; Wallace v. Nichols, 56. Ala. 321. When Knight made the sale, the proceeds of right being primarily due to Mrs. Ray, it was his duty to pay, first, her demand, before applying any of the proceeds to his claim. Failing to do so, an action for money had and received lay in her favor; and when, instead of paying the money to her, he invested it in lauds, he armed her with the right to have a lien declared on the land thus purchased, for the payment to her of her money, thus improperly invested. Preston v. McMillan, 58 Ala. 84.
The Sandfords were unnecessary parties, and we need not inquire whether the case was properly at issue as to them.
Affirmed.