Plowman v. Riddle

14 Ala. 169 | Ala. | 1848

DARGAN, J.

This bill is filed for the purpose of enforcing the lien of a vendor, and subjecting the land to the payment of the purchase money.

The purchase money is secured by note, executed by the vendees, and which, according to the contract, they had the right to discharge in leather, which, however, they have not done. That the vendees had the right to pay the note in leather, does not affect the lien of the vendor. The note to him is for a sum of money, and the vendees merely had the privilege of paying it in leather. This was for their benefit or convenience, and it cannot be construed into a waiver of the lien on the part of the vendor.

2. Nor is the lien affected by the transfer of the note to the Burts, under the circumstances disclosed. The rule is settled in this court, that the equitable lien of a vendor, will pass to the assignee of a note, given in part payment of the purchase money. See 7 Ala. Rep. 318. But in the case of Hall’s ex’r v. Click, 5 Ala. Rep. 363, it was decided, that if a note given for the purchase money of land was indorsed without recourse on the vendor, that the equitable liencould not be enforced in favor of the assignee.

It is clear that the lien in the case at bar, is not lost even upon the authority of the case in 5 Ala. Rep., for the facts as disclosed, show that Riddle, being indebted, transferred the notes to the Burts as collateral security, consequently the note is not transferred without recourse, for Riddle is liable for the debt until it is paid. But we come to the conclusion, that the decree must be reversed, for the want of proper parties.

It is the well settled rule, that all persons interested must be made parties to a bill, and if a chose in action is assigned, the assignee cannot carry on a suit in equity, in the name of the assignor. See Field v. Magee, 5 Paige, 540; 6 Id. 584; 7 Id. 287. And in the case of Cook v. Mildred’s adm’r, 3 Har. & Johns. Rep. 278, it was held, that a bill could not be sustained in the name of the obligee of a bond only, after the bond had been assigned. We think these authorities conclusive to show, that the Burts should have been made parties to the bill; that is, the bill should have been filed in their names jointly with Riddle, and their interest distinctly al-ledged.

The bill is filed in the name of Alexander Riddle only. It is true, that it is stated that it is filed for the use of James C. and Joseph T. Burt; but the allegations of the bill are in the name of Riddle alone, and the interest of the Burts is not stated, nor how acquired. This is a practice not warranted in this court. The decree is therefore reversed, and the cause is remanded, that the parties may proceed as they may see fit.

Chilton, J., not sitting.