44 Ala. 686 | Ala. | 1870
In this case the bill shows that John Wood, as the administrator of the estate of Richard Martin, deceased, did, on the 20th day of December, 1858, proceed and sell certain lands belonging to the estate of said deceased at public outcry in the town of Autaugaville, in the county of Autauga, in this State, under a decree of the probate court of said county, granted for that purpose; that at said sale James A. Sullens and Reuliep Unclerwoo4 became the purchasers q| said, land,
The defendants put in a joint answer, in which they admit the sale of the land under the decree, but deny that it w'as a sale to Sullens and Underwood, but admit that the land was bid off by Sullens, and afterwards divided between Sullens and Underwood, and they separately gave their notes for the separate parts of each, as stated in the bill. They deny that they owned the whole track jointly, but only each one his part. They allege and prove that TJnderwood, by agreement between himself and Sullens, was to have all the land east of Ivey Creek, and that Sui-lens was to have the rest; and said administrator being informed of this division, assented to the same, and thereupon agreed to receive the notes of Sullens for his part of the lands, and the notes of Underwood for his part; and Sullens was not to be liable for Underwood’s notes, nor Underwood for Sullens’ notes. In accordance with this arrangement the parties executed their notes, each for his own part of the land. Underwood paid all his notes, and Sullens all his but the last, which was wholly unpaid.
Upon the hearing, the chancellor dismissed the bill as to Underwood, and decreed a sale of the lands west of Ivey Creek, which were those claimed by Sullens. From this decree the complainants appeal to this court, and assign the dismissal of the bill as to Underwood, and his refusing and failing to decree that all the lands mentioned in complainant’s bill be sold in accordance with the prayer of the bill, and the decree rendered, as error.
The equitable right of the vendor of lands sold upon credit, to hold the same subject, in equity, to the payment of the purchase-money, is one which adheres to the whole tract sold. And in sales by administrators, thp administrator himself has no power to release this right of lien. His authority is to sell as the law directs, and the vendor’s lien is an incident of the sale, and he can no more release the one than he can set aside the ether. As long as such a sale stands, the lien stands. — 2 Story Eq., § 1217, et seq.; 4 Kent, 151, 152, marg.; 2 Sugd. Vend. 856, bottom page and notes; Adams Eq. 128, marg.; Bishop v. Snell,
There was but one sale by the administrator in this case, and the whole tract of land was sold in one body, and not in parcels. And it is through this sale that Underwood gets any title to the lands he claims. It is from the administrator of Martin that he must get his titles and not from Sullens. If the sale stands at all, it must stand as a sale of the whole tract of land in a body ; for this was the •only sale that was made. There was no sale by parcels. 'The answer shows this beyond all question; and as Underwood claims a part of the land, he must have derived his •title from this sale, because there was no other made. The arrangement between Underwood and Sullens had nothing to do with the sale by the administrator. The lien follows the sale by the administrator, and it rests upon the whole of the land, and is only discharged when the whole purchase-money is paid- — Revised Code, § 2096. Underwood is not security for Sullens’ note, but the whole of the tract of land, which was sold, is. If Underwood should set up in his defense that he was a purchaser from Sullens, it would not avail him, because Sullens purchased subject to the vendor’s lien; and as Underwood acted with a full ¡knowledge of this lien, he can not now evade it. It follows the land as a security for the payment of the purchase-money, in such sales, until the title is completed. The ichain of title shows when the land is paid for, and is notice to all who deal with it. — Johnson v. Thweatt, 18 Ala. 741.
The chancellor, therefore, erred in dismissing the bill as ito Underwood, and failing to decree the whole tract of ■land sold, subject to the vendor’s lien, for the whole price, of which the note of Sullens formed a part. It is a doctrine of the courts of chancery, that equality is equity. Then, as between Sullens and his co-defendant, Underwood, justice might require that the lands in the possession of Sullens should be first sold, before resorting to
The decree of the chancellor is reversed, and the cause is remanded for further proceedings in the court below, in conformity with this opinion. The appellees will pay the costs in this court and the costs of this appeal in the court below.