White v. Stover, 10 Ala. 441

White v. Stover

10 Ala. 441 | Ala. | 1846

GOLDTHWAITE, J.

We think this case is within the influence of the decision made by us in Roper v. McCook, 7 Ala. Rep. 318, where we held the vendor’s lien continued, and might be enforced by the assignee of a note given for the *443purchase of land, although no steps had been taken to hold the assignor responsible on his indorsement. It cannot be contended after the many decisions found in the books' on this subject,-that the vendor’s lien is not capable of being transferred to a third person, and the contrary idea seems to rest entirely on a. dictum oí L’d Hardwick in Pollaxfor v. Moore, 3 Atk. 272. In that very case however, a third person was sub-rogated to the lien, and the dictum is considerately overruled in Selby v. Selby, 4 Russ. 336, where creditors were allowed to subject the land in the hands of the purchaser’s devisee, the vendor having exhausted the personal estate in satisfaction of the debt for which his lien existed. It would be difficult to imagine a stronger case of exerting the equity in favor of a third person. It is supposed by the counsel for the defendants, that there is no true similitude between a lien of this description and a mortgage, but we feel much difficulty in drawing any material distinction between them. Each is a security for the eventual payment of the purchase money, and there seems no sufficient reason why the transfer of the evidence of the debt should not carry the security with it in the one case as well as the other, when that transfer creates the presumption that the whole interest in the debt was intended .to be assigned. In the simplest form of a debt, where no evidence whatever of it is given by , the purchaser, and that debt is afterwards assigned, why should not the equity go with it ? Has the purchaser the greater equity to hold1 the land without payment, or the assignee to receive it from him ? By the transfer of a debt without passing the legal title, it would seem to be just, that the assignee, as he may use the name of the creditor to collect the demand, is invested with all his rights. Even where the judgment upon such a demand is assigned, it carries with it the vendor’s lien. [Johnson v. Gwathmey, 4 Litt. 317; see also, Kinney v. Collins, Ib. 289; Eubank v. Poston, 5 Mon. 285.]

The case of Hall v. Click, 5 Ala. Rep. 363, has been referred to as sustaining the decree, but it will be seen that there the note was assigned without recourse, and this circumstance was considered to show the intention not to transfer the lien. The decree cited certainly does not control this case, and we should be unwilling to extend it beyond its *444terms. We have no doubt that the vendor may so contract with his assignee, as to prevent the passing of the lien, but here no question of that kind arises, as there is nothing from which such intention can be inferred.

What we have said is conclusive that the case must be sent back, and it is unnecessary to examine the question as to the parties, for that does not arise on a motion to dismiss for want of equity.

Judgment reversed and remanded.