114 So. 223 | Ala. | 1927
Appellees' suggestion that the appeal should be dismissed for failure to bring in all parties to the decree, as required by section 6143 of the Code, requires no extended discussion. Appellees cite Sherrod v. McGruder,
The bill is prosecuted by the widow and heirs at law of the deceased vendor to fasten a lien for purchase money on the property (land) sold and conveyed by him. The existence of a debt for purchase money is necessary to such a lien. Walton v. Young,
"There are no debts due and owing by the estate of the said J. E. Mancill, deceased [vendor], and there has been no administration thereon." Fretwell v. McLemore,
It may be well to note also that there is in the matter of the vendor's lien nothing to distinguish an exchange of lands from a sale, or to deny to the vendor a lien to the extent of the value of the land to be conveyed to him — agreed value in this case — but which he failed to get, or to the extent of incumbrances, if there was warranty against incumbrances or representations that there were none. Bradley v. Bosley, 1 Barb. Ch. (N.Y.) 125, cited with approval in Burns v. Taylor,
The land sold by complainants' husband and ancestor, upon which complainants would fasten a lien, is located in this state; the land which he agreed to take in part payment of the selling price is located in Florida. The allegation is that the deed to the Florida land was executed in accordance with the law of Alabama, not the law of Florida, and was ineffectual as a conveyance of title, and "is void as a conveyance of real estate." Moreover, the Florida land was affected by two mortgages aggregating more than its total value, and this notwithstanding the proprietors of the Florida land (defendants) had represented that it was free of incumbrance. These mortgages are averred to have been executed by one Nored and his wife prior to the date of the exchange of lands averred in the bill. Complainants in their bill submit themselves to the jurisdiction of the court "and offer to do whatever the court may consider necessary to be done on their part toward making the decree which they seek just and equitable with regard to the respondents in this cause." The deeds by which it was sought to effect the exchange were executed in February, 1913. The bill in this cause was filed in June, 1919. The brief for appellees suggests that at least the deed to the Florida land is good as a contract to convey — which is doubtless true — and that, for aught appearing, complainants may be in possession of the land, and that, so long as they hold possession under the contract of sale, they will not be heard to claim a vendor's lien for the agreed price of the land. This suggestion is based upon a correct conception of equitable principle, but there need be no departure from such principle in the case presented by the bill. Complainants will be required to do equity as a condition of relief. Blackburn v. McLaughlin,
The decree sustaining the appellees' demurrer to the bill is reversed; the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.