Newsome v. Collins

43 Ala. 656 | Ala. | 1869

B. F. SAFFOLD, J.

The appellee, Collins, sold a tract of land containing three hundred and twenty acres to appellant, Lane, in 1847, and gave him a bond for titles when the purchase-money should be fully paid. In October, 1862, Lane sold to appellant, Newsome, a tract of twelve hundred acres, which included the land bought from Collins.

At the time of the sale to Newsome, Lane had not paid the purchase-money to Collins, nor has he done so since. The bill was filed by Collins to enforce the vendor’s lien, and.the decree was in favor of the complainant.

The lien of the vendor of real estate for the purchase-money, is wholly independent of any possession on his part. It attaches to the estate as a trust, equally, whether it be actually conveyed, or only be contracted to be conveyed.— 2 Story’s Eq. Jur. § 1218. Generally speaking, this lien exists, and the burden of proof is on the purchaser to establish that in the particular case it- has been displaced intentionally, or waived by consent of parties. — lb, § 1224. All the incidents of a mortgage attach to the lien, when the vendor has only executed his bond to make titles when the purchase-money is paid.—Kelly v. Payne, 18 Ala. 371; Conner v. Banks, ib. 42. The bond for titles held by the vendee is sufficient to charge a purchaser from him with notice of the vendor’s lien for the unpaid purchase-money.—Bradford v. Harper et al., 25 Ala. 337.

Unless the declarations attributed to Collins, by the witnesses, Barrett and Newsome, were made by him, and served to mislead and deceive Newsome, and prevent him from prosecuting further inquiries concerning the title of Lane, Collins has a vendor’s lien on the land which he sold to Lane.

The testimony of Collins conflicts directly with that of Newsome respecting these declarations. Barrett confirms the statement of Newsome. The tract of land which was the subject of negotiation between Lane and Newsome, contained twelve hundred acres. It is not apparent from the testimony that Collins knew the portion on which he claimed a lien was to be included. If he did, his declaration, though having a tendency to mislead, was not of such conclusive character as to estop him. He might at that time have been willing to take Confederate currency, or a part of the land, for his debt. He spoke in response to the assertion of Barrett, that he wanted only three or four hundred acres. If Newsome had known at the time that Collins held the legal title to one fourth of the tract he wished to buy, he would not so much have inferred that Lane was entitled to it, as that Collins was willing to enter into an agreement by which he might be paid.

But Harmon, Eagland and Huey say that Lane gave to Newsome a bond for titles, and the two former say, in addition, that Newsome told them Lane could not make titles, because Collins would not take Confederate money, but he had Huey on the bond, who, he supposed would make it good. The money was paid by Newsome to Lane in the spring of 1863. The deed to Newsome was executed in October, 1863. The substance of Newsome’s answer to the third cross-interrogatory is, that he did not know of Collins’ claim to a lien on the land until Collins told him. in November, 1864. From all the testimony, we san not conclude that the appellant, Newsome, was mislead by the declarations of Collins, or that he ought not to be charged with notice of the vendor’s lien.

The decree is affirmed.