69 Ala. 174 | Ala. | 1881
The present bill was filed to enforce a vendor’s lien. The bill is rather peculiar in its frame and averments. Williams, the complainant, was executor of the will of Judkins, who left a considerable landed estate, and some twenty devisees or legatees. By private act of the legislature, approved December 19, 1871 — Pampli. Actsl3T-5 — the executor was authorized to sell the lands to the highest bidder, “ in order to facilitate a division and distribution of proceeds of sale.” The terms of sale were prescribed, “ one-third cash, and the balance on a credit of one and two years in equal installments, with interest.” The executor was required to give notice of sale, for three weeks in a newspaper, and to “ make a report in writing of said sale to the Chancery Court of Montgomery county, and such sale shall be confirmed or set aside by said court, as to it shall appear fair and just.” The bill avers, that pursuant to said statute, the executor sold a large tract of land belonging to said estate on the 22d day of January, 1872, and that Sallie McCarty, the female defendant in this cause, together with four other legatees under said will (she being one), became the joint purchasers, at the bid and price of some sixteen thousand six hundred and fifty dollars. The purchasers made the cash payment, by giving their several receipts to the executor for so much of their several legacies as represented their several proportions of the cash payment; and for the deferred payments they gave the executor their joint notes, payable in one and two years, with interest. Thereupon the executor reported the sale to the Chancery Court of Montgomery county, and it was confirmed.
The bill then avers, that these notes remained unpaid until April, 1876, during which time the lands had undergone a
There are many reasons why the lien claimed in this case can neither be enforced nor recognized. There was a joint purchase by five persons of a large tract of land, and joint notes given for the purchase-money, in a sum exceeding eleven thous- and dollars. These transactions took place in January, 1872.
This cause is still pending in the court below, and it is possible complainant may wish to offer an amendment to his bill. Such motion can be considered only by the chancellor.
The decree of the chancellor is reversed, and a decree here-rendered, sustaining defendant’s demurrer to the bill.