45 So. 658 | Ala. | 1908
When one sells land, and the purchase-money note is, by mutual agreement of the parties concerned, made payable to a third person, the note continues to be a charge on the land as a vendor’s lien, and, unless waived, such lien may be enforced by the promisee by bill in equity for his own benefit. — Woodall v. Kelly, 85 Ala. 372, 5 South. 164, 7 Am. St. Rep. 57; Carver v. Eads, 65 Ala. 190. In order, however, for a note made payable to a third person to operate as a vendor’s lien in favor of the payee or his assignee, it must have been made payable to him under the authority or sanction of the vendor. In other words, the lien of the vendor is not shifted to the payee of a purchase-money note unless the note was so made with his consent.
While the deed in the case at bar was executed by Jane Allen and her husband, Daniel Allen, the bill, as last amended, avers that Jane Allen was the owner of the land, and further says: “Orator avers that said Jane Allen, in selling and conveying said land to respondent, reserved a vendor’s lien for the unpaid purchase money. For some reason, unknown to orator, said note was made payable to D. E. Allen, the husband of said Jane Allen. Orator is the owner of said note, and it belongs to him, and is due and unpaid.” Orator may be the owner of
It is true in the Carver Case, supra, the court held that it was immaterial whether Mrs. Carver, one of the vendees, assented to the arrangement or not, as the purchase money was due and in equity she could not hold the land and repudiate the debt. But in that case the payment of the purchase money to a third person was agreed, to by her husband, one of the vendees, and the vendor, and as the vendor was a party to the transaction, and authorized the note to be made payable to Eads, he could not collect the amount from the vendees. Here we have no such condition, as there is nothing to show, as per the averments of the bill, that the lien of Jane Allen was ever shifted, or that she in any way lost her right to look to the land for the unpaid purchase money.
The decree of the chancellor, sustaining the demurrer to the bill as first amended and giving the complainant 30 days within which to amend, was not a final decree, and did not operate ipso facto a dismissal of the bill. A subsequent order of dismissal was necessary to effectuate that end. — Bledsoe v. Jones, 145 Ala. 685, 40 South. 111; Lide v. Park, 132 Ala. 222, 31 South. 360.
The chancellor erred in not sustaining the demurrers to the bill as last amended. The decree of the chancery court is reversed, and a decree is here rendered sustaining the demurrers.
Reversed and rendered.