Woodall v. Kelly & Co.

SOMERVILLE, J.-

1. When the purchaser of land assumes, as part or whole of the purchase-money, a debt which his vendor owes to a third person, and gives his promissory note, payable to such third person, by mutual agreement of all parties concerned, the note continues to be a charge on the land as a vendor’s lien for unpaid purchase-money; and, unless waived, such lien may be enforced by the promisee by bill in equity for his own benefit. — Carver v. Eads, 65 Ala. 190; Buford v. McCormick, 57 Ala. 428; Terry v. Keaton, 58 Ala. 667; Latham v. Staples, 47 Ala. 462. The consideration which supports the promise to pay the note in suit was, unquestionably, the purchase by the Woodalls of the land described in the bill, upon which a vendor’s lien is sought to be enforced. The lien was not the creature of specific contract, but the incident of the debt due for purchase-money. The Woodalls owed their immediate vendor, Windham, for the land; Windham owed Atkinson, and Atkinson owed the appellees, Kelly & Co., who are complainants in the present bill. By mutual agreement *373 of all parties in interest, the note for the purchase-money was made payable to Kelly & Co., in payment of their claim against Atkinson, and of Atkinson’s against Windham, to the extent of the face of the debt. These facts bring the case fully within the rule announced in Carver v. Eads, supra, and other cases cited above.

2. The next inquiry is, has this vendor’s lien, which presumptively passed to complainants with the transfer of the debt, and as an incident of it, been lost by waiver or abandonment V The authorities are uniform in holding that the lien may be waived, by express or implied consent; the whole question being one of fact, or intention manifested by acts or declarations of the contracting parties, and the burden of proof being always cast on the purchaser to affirmatively establish such waiver. And the taking of collateral security, or of a note for the purchase-money with the names of strangers, or other persons than the purchasers of the land, as personal securities, or co-makers, or indorsers, will prima facie, be construed as a waiver or abandonment of the lien. Tedder v. Steele, 70 Ala. 347; Chapman v. Peebles, 84 Ala. 283; Marshall v. Christmas, 39 Amer. Dec. 199; p. 202, note; Conover v. Warren, 41 Amer. Dec. 196. It is insisted by appellants, that taking the names of Atkinson and Windham as personal sureties on the note in suit, in addition to the names of the three Woodalls, who purchased the land, operated as a waiver of the vendor’s lien, as evincing an intention to rely exclusively upon the personal security thus taken. The presumption of a waiver, as we have said, is undoubtedly raised by this fact; but it is open to rebuttal by evidence that such was not the intention of the contracting parties.

3. We concur in the conclusion reached by the chancellor, that the weight of the evidence supports the view, that, at the time of the execution and delivery of the purchase-money notes, they were received by the complainants with the understanding, orally expressed, that the vendor’s lien was not to be relinquished. This, according to all the authorities, was sufficient to overcome the implication of the contrary intention raised by the mere act of taking personal security, with a waiver of exemptions, on the notes of the Woodalls. — Cordova v. Hood, 17 Wall. 1; Napier v. Jones, 47 Ala. 90; 1 Jones on Mort., § 196; Fonda v. Jones, 42 Miss. 792; s. c., 2 Amer. Rep. 669; Daughaday v. Paine, 6 Minn. 443; Moshier v. Meek, 80 Ill. 79; Walker v. Struve, 70 Ala. 167.

*374 4. One of the defenses set np in the answer, for which an abatement of the purchase-money is asked, is a defect of title to a part of the land, occasioned by the failure of the vendor Windham’s wife, by proper acknowledgment and separate examination, to give her voluntary assent and signature to the conveyance of the homestead, which was embraced in. the premises described in the bill. This conveyance, which is a warranty deed, although void as to that part of the premises which embraces the homestead, is valid as to that part of the land in excess of the homestead. — McGuire v. Van Pelt, 55 Ala. 344. Whether the defendants, under this state of facts, can remain in possession of the premises, and set up this defense so as to abate the purchase-money, we do not decide. If they can, the defense should be interposed by cross-bill or answer, alleging the insolvency of the vendor, and electing to recoup damages for the defect of title. — Tedder v. Steele, 70 Ala. 347; Pitts v. Powledge, 56 Ala. 147; Hughes v. Hatchett, 55 Ala. 539. There is no allegation in the answer ui the vendor Windham’s insolvency, nor any proof of this fact; which proves fatal to the defense.

5. There is another reason also why this defense must fall to the ground. The relief granted by the chancellor is on the express condition, that Windham and wife shall perfect their deed, by proper acknowledgment and Mrs. Windham’s separate examination; which the testimony shows they have always been willing to do, upon the payment by the Woodalls of their notes for the purchase-money. This leaves no vestige of equity in the effort to recoup based on this ground.

6 — 7. The plea of usury is equally unavailing, for two reasons: (1.) It is not pretended that there was any usury in the original contract, which was one of mere purchase and sale. It is only urged that there was a subsequent payment of usurious interest on one of the notes, in consideration of indulgence or forbearance. This does not render the other note usurious, which remains in force without renewal, discharge, or cancellation.' — Allen v. Turnham, 83 Ala. 323; VanBiel v. Fordney, 77 Ala. 76. (2.) The answer fails to state with sufficient distinctness the terms and nature of the alleged usurious agreement, and the specific amounts for which credit is claimed. The question of usury is not, therefore, raised by the answer. — Munter v. Linn, 61 Ala. 492; Sec. L. Asso. v. Lake, 69 Ala. 456.

8. The defendant L. T. Woodall can not, under the *375 admitted facts of the case, be regarded as a bona fide purchaser of the one-third interest of W. W. Woodall in the land. He bore the relation of son to his immediate vendor, the father, who was at the time of making the deed -insolvent, owing the debt in suit, and one other of about two hundred dollars. The consideration of the deed on the son’s part was his promise to support and maintain the grantor and his wife during their natural lives. This is, in legal effect, a conveyance of property to the son by the grantor in trust for himself, and is fraudulent and void as to existing creditors of the grantor. No debtor, especially if insolvent, is permitted to tie up his property by a conveyance of this kind, in trust for the enjoyment of himself and family, so as to place it beyond the reach of his creditors, In Sandlin v. Robbins, 62 Ala. 477, a father conveyed certain land to his daughter and her husband, a part of the recited consideration being, that the grantees were to suffer the grantor and his wife (the father and mother) to reside on the premises during their natural lives, and were to contribute from the proceeds of the land whatever their necessities, comforts and conveniences might reasonably require. The conveyance was held to be per se void, as one made in trust for the use of the grantor, without regard to any question of fraudulent intent, or of the grantor’s solvency. This case is in full accord with the rule settled in other analogous cases. Benedict v. Renfro, 75 Ala. 121; Reynolds v. Crook, 31 Ala. 634; Miller v. Stetson, 32 Ala. 161.

9. The testimony, furthermore, authorizes the conclusion attained by the chancellor, that L. T. Woodall is chargeable with notice of the vendor’s lien existing on the land at the time of his purchase. He knew of the existence of the debt for the unpaid purchase-money, according to the preponderance of tbe evidence. This should have put him on inquiry as to the existence of the lien, which was an incident of the debt; and such inquiry, properly prosecuted, would have disclosed the fact, that it was not waived by the taking of personal security. — Foster v. Stallwoorth, 62 Ala. 547; Lomax v. LeGrand, 68 Ala. 547.

We discover no error in the record, and the judgment is affirmed.