Owen v. Moore

14 Ala. 640 | Ala. | 1848

COLLIER, C. J.

It is difficult to perceive any ground upon which Murphy can be held to be an indispensable party to this suit. As between the plaintiff and defendants he has no such interest as requires him to be brought before the court; the plaintiff does not ask a decree against him, and if he did, we do not think he would be entitled to it. Murphy has no title to the lot in controversy, either legal or equitable, but conveyed it long previous to the filing of the bill, by a deed with warranty to the defendant, Dobbins, his immediate vendee. All this appears upon the bill, is admitted by the answers, and established by proof. True the complainant deduces a title to the demand he is seeking to enforce, mediately from Murphy, and immediately from his assignees ; but it is well settled by the decisions of this and other courts, that a derivative purchaser may go into equity for a specific performance against the original vendor without making the individual under whom he immediately claims a party. These adjudications rest upon the principle, that the latter has no interest to litigate and adjust in such a suit; and if the defendant has equities which cannot be brought before the court for decision as against his vendor, he must assert them by a cross bill, or in some other appropriate mode. We can discover no substantial difference as respects the question of parties between such a suit, and that now before us. See Walker et al v. The Bank of Mobile, 6 Ala. Rep. 452.

Lord Hardwicke said, in pleading “ there must be the same strictness in equity as at laiv,” (2 Atk. Rep. 632 ;) but Mr. Justice Story says, “ however true this may be as to a plea in equity, technically so called, it can hardly be affirmed to be true in the framing of bills or answers, in respect to which more liberality prevails. And it may perhaps be correctly affirmed, that certainty to a common intent, is the most that the rules of equity ordinarily require in pleadings for any purpose.” Eq. Plead. 267, 3d ed. The same learned author affirms it “as an elementary rule of the most, extensive influence, that the bill should state the right, title, or claim of the plaintiff with accuracy and clearness; and that it should in like manner state the injury or grievance of which he complains, and the relief which he asks of the court. In other words, there must be such certainty in the averment of the title, upon which the bill is founded, that the defendant may be distinctly informed of the nature of the case, which he is called upon to meet.” Id. 268. But all the minute facts need not be stated ; the general statement of a precise fact is usually sufficient, the circumstances which confirm or establish it, more properly constitute matters of proof than of allegation. Id. 275. See also Hartwell and Wilkins v. Blocker, 6 Ala. Rep. 581; McKinley v. Irvine, at this term.

The complainant exhibits with his bill, a copy of the evidence of debt for which he claims an equitable lien, alledges he is the bona fide transferee and holder thereof, and that the same is wholly unpaid.

The exhibit which is a part of the bill, does not disclose an indorsement, or other written assignment of the bill single, and it may therefore be understood that the allegation is, that the complainant holds it as an equitable proprietor, without any written transfer. But independently of the inference from the exhibit itself, does not the character of the complainant’s title to the paper sufficiently appear; especial-1 y as his equitable rights are the same, whether he holds it as an indorsee, or by delivery merely upon a valuable consideration ; and is not the general statement sufficient to let in proof of the precise fact ? It is needless to answer these questions, as it is certain, that the allegation, when aided by the exhibit, relieves the bill from the supposed uncertainty.

The conveyance by Murphy to Dobbins did not discharge the lot from the equitable lien for the purchase money, and the proof shows it was not intended to have that effect. It is well settled, both in England and the United States, that the vendor in the absence of any agreement to the contrary, retains a lien on the land he has sold and conveyed for the unpaid purchase money, and that this lien will be enforced against a subsequent purchaser with notice. It is also the law of both countries, that merely taking a bond or note for the purchase money, will be no waiver of the lien. Foster v. The Trustees of the Athenæum, 3 Ala. Rep. 302; Hall, Ex’r, v. Click et al. 5 Ala. Rep. 363, bears no an alogy to the present. There the only question decided was, that a note for the purchase money, indorsed by the vendor without recourse, could not be enforced as an equitable lien upon the land, at the suit of the indorsee against the vendee. This decision was rested upon the ground that so far as the vendor was concerned, his indorsement amounted to a payment and satisfaction ; and by express, contract he had exempted himself from liability to his indorsee. We have seen that a conveyance of the title by the vendor, cannot impair his lien against a vendee, or one claiming under him with notice; and in the present case, no such effect can be accorded to it.

The bond which was executed by Murphy for the conveyance of the lot in question to Dobbins, is dated the 26th September, 1837, and in its condition recites the amount of the purchase money to be fifteen hundred dollars; payable in three equal payments, on the first of January, 1839-’40 and ’41. This bond was assigned by Dobbins to his co-defendant, Moore, previous to the maturity of the first payment, and. carried upon its face, a positive notice that the lot had not been paid for. It is then perfectly clear, that Moore was a purchaser with notice, and does not take the property divested of the equitable lien. If the bill single now in question, was in Murphy’s hands when Dobbins assigned the bond, he was entitled to enforce the lien, and it passed to every subsequent holder of the paper as against the present defendants.

The deed from Murphy to Dobbins cannot have the least influence upon the case. If the latter had conveyed to Moore with warranty, and then become the depository of the legal title, such title would have inured to the benefit of Moore, and made his estate complete. But we have seen that such is not the condition of these parties; Moore is the assignee merely of the title bond, and cannot in virtue of that indicium of property, draw to himself the legal title which Dobbins derived from Murphy. See Tillotson v. Doe ex dem Kennedy, 5 Ala. Rep. 407.

In Roper v. McCook and another, 7 Ala. Rep. 318, it was decided, that the equitable lien of the vendor of land, will pass to his assignee of a note taken from the vendee in part payment of the purchase money, and will not be lost, though the assignee neglect to sue the maker for so long a time, as to discharge the assignor from the liablity upon his indorsement. So in White v. Stover et al. 10 Ala. Rep. 441, it was determined, that the lien of a vendor who has conveyed the land to a purchaser, and taken notes for the price, is not waived by passing the notes to another, without indorsement, but may be enforced by such holder, or by the vendor when the notes are returned to him, against a sub-purchaser with notice of the equity.

It will abundantly appear from the citations we have made, that it is not a pre-requisite to the enforcement of an equitable lien, that the complainant should have exhausted his legal remedies without obtaining satisfaction of his demand ; and it is therefore quite enough to refer to them, without a more particular notice.

It results from this view, that the bill was improperly dismissed — the decree is consequently reversed, and the cause remanded.