| Ala. | Dec 15, 1884
— It is not contended that a vendor’s lien on the land in controversy did not exist in favor of Mayes, the original owner, after the sale made by him to Garth, on the 3d December, 1859. This lien certainly existed without any specific agreement, as an incident to the contract of sale, and was enforceable, not only against the vendee, but all others who were not purchasers for value without notice, unless it had in some way been lost by waiver or abandonment.
It is our opinion that this lien was not waived, or abandoned, by the unsuccessful attempt to enforce it in the chancery suit commenced in April, 1867. The legal title of the land was at this time vested in the heirs of George M. Garth, the vendee, he having died since the sale. By some oversight, or otherwise, they were not made parties to this proceeding. The only parties defendant were the widow of Garth, who was also his personal representative, and one Isaac Owen, who was assignee of one of the notes for the purchase-money. The legal title of the land, therefore, was not before the court, no one being made a party who had any ownership in it. The widow’s only interest was a right of dower, which, without actual assignment, was no estate in the land, either legal or equitable, but a mere right action, not the subject either of sale or transfer, but only of release to the terre-tenant by way of extinguishment. — Saltmarsh v. Smith, 32 Ala. 404" court="Ala." date_filed="1858-01-15" href="https://app.midpage.ai/document/saltmarsh-v-smith-6506235?utm_source=webapp" opinion_id="6506235">32 Ala. 404 ; 1 Brick. Dig. p. 615, § 42. The decree of the Chancery Court, seeking to condemn the land to the payment of the purchase-money, was, for this reason, unavailing. It reached no interest in the land which was the sub
The note having been reduced to judgment, by the rendition of the decree in favor of Mayes against the administrator of Garth, it was legally merged in said judgment; and the filing, therefore, of a transcript of the judgment against Garth’s insolvent estate, was clearly sufficient. The record shows that this was done within the time required by statute. — Thornton v. Moore, 61 Ala. 347" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/thornton-v-moore-6510190?utm_source=webapp" opinion_id="6510190">61 Ala. 347.
There does not seem to us to be any misjoinder of parties complainant to the present bilí, as the chancellor has adjudged to exist in his opinion and decree. The two parties who unite as complainants are Shackelford, the administrator of Mayes, and Mrs. Martha Owen, who purchased these lands from Mayes in his life-time by a deed warranting the title. The legal effect of this conveyance was to pass to Mrs. Owen, as vendee, not only any interest which the vendor had at that time in the lands, but also any title which he might afterwards acquire, whether by enforcement of his vendor’s lien in the suit or otherwise. Chapman v. Abrahams, 61 Ala. 108" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/chapman-v-abrahams-6510151?utm_source=webapp" opinion_id="6510151">61 Ala. 108. It is shown by the record that Mrs. Owen had been ejected from these lands by the heirs of Garth, in an action at law. This was a breach of the warranty, operating to create a liability upon Mayes and his administrator. The vendor, therefore, had an interest in the enforcement of a lien, which was superior to the title of the heirs, and his estate might sustain injury if it remained unpaid. The liability over, created by the warranty, is held to be the vital principle which preserves from forfeiture a vendor’s lien, where a note for the purchase-money of land has been assigned by indorsement by the holder, and through which is worked out
The decree is reversed, and the cause remanded, that a decree may be rendered in accordance with the principles announced in this opinion.