Williams v. McCarty

74 Ala. 295 | Ala. | 1883

STONE, J.

— When land is sold and conveyed, leaving the purchase-money, or a part of it unpaid, there is a lien on the land in favor of the vendor, as security for the unpaid purchase-money. This is the general rule, and it rests on the principle, “ that a person who has gotten the estate of another, ought not in conscience, as between them, to be allowed to keep it, and not to pay the full consideration money.” This lien is said to be the mere creature of equity. Certainly, equity first gave it vitality, and that court alone can administer and enforce it. It springs, as matter of law, out of the contract itself, and is not dependent on any expressed term of the contract. In Bankhead v. Owen, 60 Ala. 457, we considered its nature, and our prior rulings upon it, and we have no wish to enlarge upon what is there said, upon the questions there discussed.

The rule has exceptions. If an independent security be taken, our rulings are that, unexplained, this amounts to proof that no lien on the land was retained. — Foster v. Athenœum, 3 Ala. 302; Walker v. Carroll, 65 Ala. 61. There are some varying and conflicting decisions in England, on what is sometimes asserted as another exception to the rule. They are collected and commented on in 1 Leading Eq. Oases, 4th ed., pages 311* et seq. We deem it unnecessary to consider them, as the point of dispute and discrepancy arising in them is not presented in this case. They show, however, that whenever the conduct and dealings of the parties, in reference to the transaction, are not reconcilable with the idea that a lien was intended to be retained, then there is no lieu. — See, also, 1 Jones on Mortgages, § 198 ; 3 Pom. Eq. Jur. § 1252, and notes. This conrt has gone very far in upholding the vendor’s lien. — Buford v. McCormick, 57 Ala. 428; Carver v. Eads, 65 Ala. 190; Wilkinson v. May, 69 Ala. 33; Young v. Hawkins, at the present term.

This is the second time this case comes before us. — McCarty v. Williams, 69 Ala. 174. It is contended for appellant, that his amendment of the bill, after the case returned to the Chancery Conrt, takes it out of the operation of the principles declared on the former hearing. The most important of the amendments is, that when the compromise was made, and the new note given, the original purchase-money notes, signed by all the purchasers, were not surrendered, and are still in the possession of the complainant. Now, if those original notes are binding at all, they are binding on all the parties, and operate a lien on all the land. This would hardly be contended for. And if proceedings were instituted upon them, the other four purchasers could successfully defend both themselves and their lands against recovery. The true construction of the compromise contract is, that Williams agreed to surrender the original purchase-money notes, to convey the land, and to trust the five several purchasers, each for his share or proportion of the balanee of the purchase-money. In support of this view, it is shown in the bill that McCarty represented to Williams that a sufficient sum was due him, McCarty, from his ward, whose estate Williams held, to pay such agreed balance; and the bill avers that Williams, relying on McCarty’s representation, accepted the individual note of McCarty. This, we think, amounts to a novation, and repels all idea that any lien was retained. We adhere to our former views. — McCarty v. Williams, 69 Ala. 174; Sims v. Sampey, 64 Ala. 230; s. c., 58 Ala. 588; Thames v. Caldwell, 60 Ala. 644.

The decree of the chancellor is affirmed.