May v. Wilkinson, 76 Ala. 543

76 Ala. 543 | Ala. | 1884

SOMEBYILLE, J.

— The purpose of the present bill is to enforce a vendor’s lien on a certain lot or parcel of land in the town of Greenville. There are two defenses which are urged by the defendant, Wilkinson. The first is, that the purchase-money, for the security of which the alleged vendor’s lien is claimed, has been paid. The second is, that the defendant is a bona fide purchaser of the lot in controversy, without notice of such lien. The chancellor in his decree dismissed the bill, basing his conclusion upon the second of the above mentioned grounds of defense.

It is urged, however, by the appellant in this court, that the answer of the defendant fails to aver the facts necessary to constitute him a bona fide purchaser without notice.

In Hooper v. Strahan, 71 Ala. 75, we stated the settled rule in this State to be, that, “ in such cases, it is required of a defendant, who is a sub-purchaser, to aver in his plea or answer, clearly, distinctly and without equivocation, and with proper circumstantiality of detail, the following facts: 1st, that he is a purchaser from one in actual or constructive possession, who was seized, or claimed to be seized of the legal title, at the same time briefly setting out substantially the contents of the deed of purchase, with date, consideration, and parties; 2d, that he purchased in good faith; 3d, that he parted with value, by paying money or other valuable thing, assuming liability, or incurring an injury, stating the nature of the consideration fully; 4th, that he had no notice of complainant’s equity, and knew no fact calculated to put him on inquiry, either at the time' of purchase, or at or before the time he parted with the consideration.”- — Craft v. Russell, 67 Ala. 9; 1 Brick. Dig. 718, § 1134; Story’s Eq. Plead. § 805.

The answer of the defendant Wilkinson was defective, in failing to aver that he purchased from one in possession of the lot, who was seized, or claimed to he seized of the legal title; and in failing to set out the substance of his deed of purchase, with date, consideration, and parties.

This defect would result in a reversal and remandment of the cause, but for the fact that, under the evidence, the error does not seem to us to be prejudicial to tlie appellaut; for the reason, that the preponderance of the evidence favors the conclusion, that the debt originally due for the purchase-money has probably been paid. More than twelve years had elapsed, from the time the debt was due, up to the tiling of the bill, so that the debt itself had been barred at law by the statute of limitations for a period of more than six years, although the remedy for the enforcement of the lien still existed. The complainant testifies that she ivas fully aware of the fact that her claim was a lien on the land, as her husband also well knew in his life-time. She is shown to have been very poor, and greatly in need of money, even to supply the commonest wants of life. It is quite probable, from the evidence, that both she and her husband knew that the land was publicly advertised for sale; and yet no objection was interposed, and no effort was made to enforce the lien, although they knew that the debtor, Miller, became utterly insolvent, and, within less than a year after the creation of the debt, became an actual bankrupt. These circumstances raise a strong presumption of payment. Their weight is increased by the testimony of the debtor, Miller, who swears that the debt was paid, partly in money, and partly in goods and supplies furnished during the time he did business in Greenville as a merchant, and prior to the date of his bankruptcy. The complainant, it is true, and her two daughters, testify to the contrary; but their testimony is weakened by the probability that the payment was made to the husband during his life-time. So, the impeachment of Miller’s character for veracity is rendered less important in the weight of its influence, by the fact that he has no interest in the result of the suit, and that he is corroborated by all the intrinsic probabilities of the case. The evidence, in our opinion, supports the conclusion that the debt, which is the foundation of the alleged lien, has been discharged; and for this reason the decree of the chancellor is correct, and must be affirmed.