Martin v. Lundie

6 Ala. 427 | Ala. | 1844

GOLDTHWAITE, J.

It is not necessary to put our af-firmance of this decree, either upon the ground that the vendor’s lien was not transferred by the assignment of the note; or upon the ground, that the lien was lost in consequence of the omission, by the assignee, to take the proper steps to fix the liability of the assgnor; though the latter reason was held sufficient in the case of White v. Williams, [1 Paige, 502.] It is upon the notion of an implied agreement, that the assignee of a bond or note, given for the purchase of land, is permitted, in equity, to enforce the vendor’s lien; and the case of Hall’s adm’r v. Click, [June Term, 1843,] is illustrative of the rule. There, it was held, that no such implication arose when the note was transferred without recourse. Here, it will be seen, that in addition to the lien upon the land, the vendor also had the security of another individual. If it was conceded, that an agreement might be implied to permit the assignee, in this case, to enforce the vendor’s lien, either for the entire, or pro rata, payment of the note, the agreement must be understood with the reservation, that the rights of the vendor should not be impaired by any action of the assignee. It is undeniable, that all remedy against the surety upon this noto, has been lost by taking the land in payment, as well as by the cancellation of the note. If the assignee could now be permitted to enforce the note against the land, the consequence, to the vendor, would be, that he has lost, without any negligence on' his part, one of the securities which he had in the first instance. It is impossible to infer any such agreement out of the mere fact of assignment; and, therefore, we concur in the opinion of the chancellor, that the bill is without equity.

It is not improper to remark, that, as Martin was a sub-purchaser from Milton, it is possible he is not concluded by the decree of foreclosure, under which the land was sold; and it may be, that as a part of the purchase money has been paid to the vendor, that he has a right to redeem, although there was a default as to the residue.

Decree affirmed.