Pettus v. McKinney

74 Ala. 108 | Ala. | 1883

BRIOKELL, C. J.

— The particular question of importance, and decisive of the rights of the parties, presented by this record — whether the lender of money to discharge lands, the homestead of the borrower, from the lien of the vendor for the payment of the purchase-money, acquires a right to be repaid, which is superior to, and will prevail over the right of the widow of the borrower to the homestead — was decided adversely to the appellants, when a cause between these parties was before this court at a former term, on appeal from a decree of the Court of Probate assigning homestead to the widow. Pettus v. McKinney, 56 Ala. 41. Subsequently, in Chapman v. Abrahams, 61 Ala. 108, the court decided, that an advance of money to a purchaser, to relieve lands from the incumbrance of the lien of the vendor, or the payment of money for that purpose, at the request of the purchaser, to whom the vendor, on the payment, conveyed the lands, did not create a resulting trust in favor of the lender, nor was he entitled to be subrogated to the lien of the vendor, which was by the payment extinguished. The advance, or payment, was made upon a verbal promise that it should be secured by a mortgage on the lands; which was subsequently executed, but. was invalid, because the purchaser was a married woman, to whom the lands on the payment were conveyed, thereby becoming her statutory' separate estate, the alienation of which by mortgage was unauthorized. 'My own opinion was,-that, under the facts of that case, the parties did not intend a payment of the debt for the purchase-money, nor an extinguishment of the lien upon the lands, but merely the substitution of one creditor for another,' — ■ a change in the form and evidence of the debt, but not of its character, and the preservation by mortgage of the lien to which the lands were subject; that the loan of the money, its application, the conveyance to the wife, and the mortgage, were but parts of one transaction, to which should be applied the general doctrine of a court of equity, that a deed conveying lands unconditionally, and a mortgage made by the grantee to secure the payment of the purease-money, contemporaneously executed, are read as if they were but one instrument, and practically the legal effect is, that an estate on condition is created,' — • an estate which can become absolute only on the payment of the purchase-money. That view did not receive the acceptance of a majority of the court, and the principle already stated was announced.

Without departure from these decisions, which are rules of property, and can not without the introduction of insecurity to the titles to lands be disturbed, it is manifest the right of the widow must prevail. In the execution of the deed of trust to the lender of the money, made on the day of the loan, she did not join. The constitution declares void an alienation of the homestead by the husband, in the execution of which the wife does not join. The parol agreement of the husband, that the lender should have a security upon the lands for the re-payment of the money borrowed, was satisfied by the execution of the deed of trust, and as a satisfaction the lender accepted it. There was no fraud, no mistake of fact; in it all previous parol stipulations were merged. When parties make agreements verbally, and then reduce them to writing, in the absence of fraud or mistake, the writing becomes the sole memorial and expositor of the contract, and in it all prior.parol or verbal stipulations are merged. — 1 Brick. Dig. 865, § 866.

The debt for the purchase-money having been extinguished, the husband by the payment was clothed with a perfect equity in and to the lands. There remained outstanding in the original vendor no more than the naked legal estate, which was held in trust for the husband, and a conveyance of'which he had an unqualified right to demand and compel. The statute entitles a widow to dower in all lands, of which the husband, at the time of his death, has a perfect equity, having paid all the pur.- ■ chase-money thereof. — Code of 1S76, § 2232.

"We find no error in the decree of the chancellor, and it must be affirmed.