Magruder v. Campbell, 40 Ala. 611

Magruder v. Campbell

40 Ala. 611 | Ala. | 1867

BYRD, J.

1. Magruder alone took the appeal, and assigns error; but there is a joinder in error by the appellee, which waives all objection to the form of the appeal or the assignments of error.

2. The eleventh assignment of error, although there is a joinder, cannot avail the appellant. Whether the guardian ad litem was properly appointed or not, is not a question in which he has any interest, or as to which, if the court below committed an error, he has any right to complain.

3-4. The 2d, 7th, and 8th assignments, raise questions within the discretion of the chancellor, and which are not revisable in this court.

The 6th is not well assigned, for “Exhibit A ” to the original bill was not introduced in evidence on the final hearing, as appears from the note of the testimony offered.

5. The 1st, 10th, and 12th assignments may be disposed of together. The original bill, as noticed by the chancellor, very loosely sets out the contract between Campbell and John McKay, as to the sale of the land in controversy. The second paragraph shows what was the “understanding” of Campbell; but it fails to allege, positively and distinctly, what was the agreement of the parties as to the sale of the land, or that McKay made any contract to purchase the land. It is not sufficient, in a bill setting up, or attempting to set up, a parol contract for the sale of land, to aver what was “ the understanding of the parties ” as to •the terms of the contract. They should be set out with distinctness and certainty, so that the court may determine for itself the legal effect of the contract. Great precision and nicety are required in pleadings, whenever a parol contract for the sale of land is sought to be enforced. But, when the second paragraph of the bill is taken in connection with the third, and construed together, we are of opinion that the terms of the contract are, though loosely, averred with sufficient certainty to authorize a court of equity to enforce the lien of the vendor.

The evidence of the witnesses Anderson, Boone, Sarah and Susan McKay, barely makes out the material allegations of the bill. Catherine Campbell became the owner of the debt due from McKay to Campbell, for the land, after the *623fall of 1852 ; but there is no satisfactory proof of the terms of the contract under which she became the owner thereof; yet, from the declarations of McKay, the vendee, made after that time, probably in 1854, (as appears by the testimony of Anderson,) she was then the owner of the debt, and had a lien on the land, which he seemed to fear he would not be able to extinguish by the payment of the debt.

The answer of Magruder admits, that John McKay was able to pay the debt before 1863, and insists that he did pay it; but he wholly fails to prove the payment. Neither Magruder, nor the administrator of McKay, has pleaded the statute of limitations as a bar to this proceeding.

6. It was not necessary that John D. Campbell should have assigned the debt to Catherine Campbell in writing, or by the delivery of an account or written .assignment. Judge Story (2 Equity Jur. § 104) says: “ Any order, writing, or act, which makes an appropriation of a fund, amounts to an equitable assignment of that fund.” And further in the same section, “An assignment of a debt may be by parol, as well as by deed. As the assignee is generally entitled to all the remedies of the assignor, so he is generally subject to all the equities between the assignor and debtor.”

The assignment of the debt is an assignment of the lien, unless the latter is waived by the assignee, or it is expressly or impliedly agreed between the parties that it is not to pass to the assignee. There is no proof of any such agreement; and although it is alleged'in the bill that Catherine Campbell traded for the claim on John McKay, on his promise to pay in a short time, yet that is not a waiver of the lien, where no title to the land has passed from the vendor to the vendee; and she was entitled, on the transfer of the debt, to all the equities of the vendor. ■ Cases of implied waiver of liens have often arisen, where a title has been made to the vendee. There are many instances where a lien in such cases has been held to have been waived by implication; but, in a ease like this, we apprehend that only a waiver upon some consideration valid by law, or an act operating by way of estoppel, could defeat the right of the vendor, or any one claiming under him, to subject the land *624to the payment of the purchase-money. However this may be, we hold, that neither the allegations aforesaid, nor the purchase of the land by appellant, as shown in the pleadings and proofs, could defeat the lien of thé vendor, or his assignee. — Cowles v. Jones, 26 Ala. 612; Bradford v. Harper, 25 Ala. 337; Griggsby v. Hair, 25 Ala. 327.

7. The competency of the witnesses Sarah and Susan McKay is maintainable upon the following decisions : Cook v. Patterson, 35 Ala. 102; 18 Ala. 270; Rupert & Cassity v. Elston’s Executor, 35 Ala. 79. If the motion to suppress portions of their testimony had been granted, the result would still be the same as to the merits of the cause; and therefore it is unnecessary to pass on the ruling of the chancellor thereon. And this remark is applicable to the rulings of the chancellor on the exceptions of both parties to the testimony of the witnesses Beuben and William Kelly, William Boone, and Charles Anderson; for, if the chancellor had ruled in accordance with the desire of the appellant, upon the motion and exceptions, so far as they were well taken, it would not have affected the result.

Having disposed of all the material questions noticed in the brief of appellant’s counsel, we are of opinion that he has failed to show any error in the record, and the decree of the chancellor must be affirmed.