McLean v. Smith

108 Ala. 533 | Ala. | 1895

PER CURIAM.

A pending litigation for the recovery of forty acres of land instituted by appellee, Smith, against appellant, McLean, was compromised and settled, the plaintiff executing a. quit claim deed to the defendant for which the purchaser agreed to pay three hundred dollars. The purchase money not having been paid, the present bill was filed to enforce the vendor’s lien upon the land. The rule which prevails in this State is, that in the sale of land where the purchase money or any part remains unpaid, the law presumes the existence of a vendor’s lien, unless the terms of the contract or the attending circumstances furnish satisfactory evidence, that the parties did not intend to reserve the lien, and the burden is ou him, who asserts the waiver or non-existence of the lien. — Crampton v. Prince, 83 Ala. 246; Pylant v. Reeves, 53 Ala. 132 ; Carver v. Eads, 65 Ala. 190.

But two witnesses were examined on each side; those for the respondent testifying that by the express terms of the agreement, there was to be no lien upon the land, while those for the complainant are to the effect that the vendor’s lien should exist for the security of the purchase money. There is nothing in the record which in the slightest degree discredits any witness examined in the case. Applying the rule that the burden is on him who controverts the reservation of the lien, to show by satisfactory evidence its waiver, we must hold, that he has failed to discharge the burden, and that the lien exists.

It is insisted that the decree declaring the lien is too broad, in that it subjects the entire forty acres to the satisfaction of complainant’s demand. Having purchased the plaintiff’-s title, and agreed to pay him three hundred dollars for it, the defendant will not be allowed to show in this action, that his title was superior to that of the vendor, and that he was the owner of the land independent of the quit-claim title acquired from complainant by the compromise and settlement of the ejectment suit. The plaintiff claimed and sold the entire interest in the forty acres of land, and this interest constitutes the consideration for the three hundred dollars, agreed to be paid for it. We find no error in the record and the decree of the chancery court is affirmed.

Affirmed.