62 Ala. 107 | Ala. | 1878
A sale by one tenant in common to another, of an undivided interest in lands held by them in common, arms the vendor with a lien on the interest sold for the unpaid purchase money. — Relfe v. Relfe, 34 Ala. 500 ; Buford v. McCormick, 57 Ala. 428, and a purchase of lands by husband and wife, the latter having a statutory separate estate, in the name, and for the use of the wife, is not without the scope of the husband’s powers of investment over the wife’s property so held; and if the purchase be on credit, the vendor has a lien on the land sold, for the amount of the purchase money that is not paid. — Marks v. Cowles, 53 Ala. 499 ; Sterrett v. Coleman, December term, 1876. It results from these principles that the complainant below was entitled to relief.
In the measure of relief the Chancellor erred. The transaction and trade between Wilson and Mrs. Norman, of date August 15th, 1870, were not simply a purchase by the latter of an undivided half interest in the lands lying south of the agreed dividing line. It was, in part, a partition by agreement. To the extent that Wilson’s interest south of said dividing line equalled Mrs. Norman’s interest in the tract north of the line, there was no sale or purchase. This was partition only to the extent that the portion allotted to Mrs. Norman, exceeded in value the partition allotted to Wilson. Did she become a purchaser from him of the undivided half interest ? Wilson, the vendor, has a lien only on the interest which he sold. Taking the notes given as a guide, the actual purchase was of an undivided half interest in 414 acres, if the purchase price was twenty dollars per acre, as it seems to be. The location of that 414 acres is unascertained, because that part of the land was undivided. The entire tract was 976 acres, according to the deed. The interest liable to-
Reversed and remanded, to be proceeded in according to tbe principles of this opinion.