Latham v. Staples

46 Ala. 462 | Ala. | 1871

PETERS, J.

There can be no doubt now, that in this State, a promissory note given for the purchase-money of land is secured by a vendor’s equitable lien upon the land sold, unless, in the contract of sale, this lien has been released. This lien attaches to the debt, and is transferable with the note for the purchase-money; though, at the same time, it may be released when the note is assigned without recourse, or when the debt itself is changed without intention to preserve the lien.- Conner v. Banks, 18 Ala. 42; Kelly v. Payne, 18 Ala. 371 ; Brooks v. Woods, 40 Ala. 538 ; White v. Stover et al., 10 Ala. 441 ; Haley v. Bennett, 5 Port. 452 ; Hall’s Ex'rs v. Click et al., 5 Ala. 363 ; Day v. Preskett, 40 Ala. 624 ; Griggsby v. Hair, 25 Ala. 327 ; Bradford v. Harper, 25 Ala. 337 ; Newsome et al. v. Collins, 43 Ala. 656 ; 4 Kent, 150, et seq. The transfer of the note thus made for such purchase-money on a sale of land may be by parol. It is not a transaction that is affected by the statute of frauds. It is the debt that is parted with, and not the land; and the debt carries along with it all its incidents, if there be no stipulation to the contrary. — 40 Ala. 624, 628, supra. But here the bill alleges that a portion of the debt for the purchase-money was transferred, and that the lien allowed by law for its security was likewise expressly transferred with it, by agreement of all the parties interested in it. In such case, all the owners of the debt entitled to participate in the •fruits of the lien should be made parties to the suit to enforce the lien. — 25 Ala. 327, supra. The demurrer was therefore properly overruled.

The cause in the court below was heard on bill and answer, without testimony, but the complainant waived the oath of the defendant to the answer. In such case, the' answer, when it contradicts the allegations of the bill, is a mere pleading, and it is still required that the allegations of the bill shall be sustained by some proof sufficient to overturn the contradictions of the answer; but the force of this proof may be simply that of a preponderance of the evidence in favor of the complainant, without demanding, as in - case of a sworn answer, two witnesses, or one witness with strong corroborating circumstances, to outweigh the denials of the answer. The Code changes the former rule. — Rev. Code, § 3352 ; State B’k v. Edwards et al., 20 Ala. 512 ; Mosser v. Mosser, 29 Ala. 313 ; Paulding v. Watson & Eidson, 21 Ala. 279 ; Greenl. Ev. pp. 8, 9. The allegations of the bill which support the equity of the complainant’s case, are directly and fully contradicted by the denials of the answer, made upon the personal knowledge of the defendant, and there is no evidence sufficient to support the bill. In such ease, the denials of the answer must prevail.

For the foregoing reasons the decree of the court below must be reversed. And although this court is clothed with the power to render such judgment here as the court below should have rendered, yet, as the cause might thus be disposed of on a mere suggestion in the pleadings, for which no one but the pleader who drew up the unsworn answer would be^ responsible, and the complainant is entitled to support his bill by his own testimony, which may not be contradicted by the defendant, the cause will be remanded for final disposition in the court below, where the ends of justice may be more certainly and more fully attained. — Revised Code, §§ 3502, 2704.

Let the decree of the court below be reversed, and the cause remanded. The appellee, Staples, will pay the costs of this appeal in this court and in the court below.