86 So. 710 | Miss. | 1920
delivered the opinion of the court.
The appellee filed a suit to establish and enforce a vendor’s lien in the sum of one thousand, three hundred and sixteen dollars and seventy-five cents, with interest from January 1, 1914, on the following note:
$1,315.75.
Slate Springs, Miss., Jan. 27, 1914.
“On or before the 1st day of January, 1915, we or either of us promise to pay to the order of Scott Hardin, or bear-’ er, the sum of thirteen hundred sixteen and 75/1001 dollars, the same being the balance of the purchase price of the following described land in Calhoun county, Miss., to wit: East half of Southwest quarter of section 7, the East half The East half of Southwest quarter of section 7, the East half of Northwest quarter of section 18, and twenty acres west side of the Northeast quarter of section 18, all in township 22 north, of range 10' east, the same to bear eight per cent from the first day of January, 1914.
“[Signed]
M. T. Lungeford.
“P, E, Lungeford”
The proof shows that J. T. and Minnie Batchelor, in consideration of sixteen hundred and seventy-five dollars, conveyed to Mrs. EG. W. Lunceford and Perry Lunceford the lands described above. At the time of this sale from Batchelor to Lunceford, which was on the 7th day of June 1912, Batchelor and wife owed Scott Hardin a sum of money Avhich was secured by deed of trust upon the land in question. When Batchelor Avas ready to sell the land to Lunceford, he went to Hardin to see if it was agreeable, and Hardin agreed to the sale, and agreed to take the note for sixteen hundred and seventy-five dollars, and to repay Batchelor the amount that Batchelor had paid Hardin, Avho furnished Batchelor the money to buy the land from the persons who conveyed to Batchelor the land in question, namely, J. E. and Leah Doss. The proof shows that Scott Hardin never owned the land in question. There was also a plea of usury and a plea of payment.
The note given originally to Scott Hardin was dated June 7, 1912, and was for sixteen hundred and seventy-five dollars, and had certain credits on the back of it, Avhich credits were admitted to be in the handwriting of Scott Hardin and signed by him. There was also a credit on this note of five hundred and seventy-five dollars and sixty-three cents, but this credit was not signed by Scott Hardin, although it Avas claimed by the appellants to be in his handwriting. The appellants were not permitted to testify, but introduced the original note, with the alleged credit, and sought to prove that the unsigned credit was in the handwriting of Scott Hardin; but the witness would not state positively that it was in the handwriting of Scott Hardin, and the original note was sent up with the record for our inspection.
It is well settled that paying the purchase money by a third person to the vendor does not make such third person a vendor, nor does it give him the rights of a vendor. The contract above set out does not create a lien in terms, and, the vendor’s lien being a creature of the law, the recital in an instrument that the' note is for1 purchase money does not make the lender a vendor, where the facts clearly show that he was not such in fact. It was therefore error for the chancellor to establish the vendor’s lien. The question of the payment involved in the credit on the original note is for the decision of the trier of facts, and is to be established or defeated by proper evidence, expert or otherwise, as to handwriting, and ordinarily the decision of the trier of fact on a comparison of handwriting would not be reversed by this court.
For the error in decreeing a vendor’s lien on the land, the judgment is reversed, mid the cause remanded.
Reversed and remanded.
