119 Ala. 287 | Ala. | 1898
Wm. F. Appling filed the present bill 'to enforce the vendor’s lien upon certain land, to satisfy a balance of forty-three dollars and interest thereon due for the purchase money. Complainant’s vendee C. M. South, and one Ponder, a sub-purchaser, and C. J. Wilks, a mortgagee of the vendee South, are made parties defendant. The mortgagee, it seems, had foreclosed her morgage and become the purchaser before the filing of the bill by complainant. Decrees pro confesso Avere entered against South and Ponder. C. J. Wilkes ansAvered the bill, and in her answer denied that the vendor had retained a vendor’s lien, and averred, that by t'he agreement of sale and purchase of the land it Avas understood and agreed that the balance due for the purchase money should be subordinate to the mortgage debt. This Avas the real issue of contest between the parties, and the question is simply one of fact. The situation of the parties Avas, that C. J. Wilks held a mortgage upon the land executed by Appling prior to the sale to South. All the parties met by agreement and took part in the transaction of the sale and settlement. Appling’s debt to Wilks in round numbers Avas three hundred and seventy-five dollars. The land Avas valued at four hundred and tAventy-five dollars. The difference in favor of the land Avas fifty
The other objection to the decree cannot avail. True in the second paragraph of the bill the land is described as the S. 1-2 of N. E. 1-4 and in other paragraphs as S. 1-2 of N. W. 1-4, but the proof without conflict shoAvs that the latter description Avas correct, and the decree property describes the land to be sold. An objection of this character ought to have been pointed out in the ansAver or by motion. No reference is made to the misdescription in the 2d paragraph of the bill by the answer or elsewhere in the pleadings. We find no error in the decree.
Affirmed.