10 Ala. 441 (Ala. 1846), White v. Stover

Citation:10 Ala. 441
Opinion Judge:DJ GOLDTHWAITE, J.
Party Name:WHITE v. STOVER, ET AL.
Attorney:C. DEAR, for the plaintiff in error. J. D. JENKINS, contra, argued--
Court:Supreme Court of Alabama
 
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Page 441

10 Ala. 441 (Ala. 1846)

WHITE

v.

STOVER, ET AL.

Supreme Court of Alabama

June Term, 1846

Writ of Error to the Court of Chancery for the 13th District.

THE bill is filed by White against Stover and Curtis, to enforce the vendor's lien upon a certain tract of land, sold and conveyed with warranty, by White to Evans, and for which two notes were executed from Evans to White, one dated April 27, 1836, for $6,000, the other dated November 8, 1837, for $1,036 94. The date of the conveyance is not stated. White transferred these notes to M. A. Dumas, for a valuable consideration, and she commenced suits against Evans in January, 1838, in the name of White, for her use, but these were afterwards abated, in consequence of the death of Evans, in 1839. Evans' estate was declared, and is, insolvent. After the abatement of the suits against Evans, White received back the notes from Mrs. Dumas, and gave his own in place of them, whereby they became his property, and as such he insists he is entitled to enforce them, as a lien upon the land so conveyed. The lands, after the death of Evans, on the 1st and 3d February, 1840, were sold by the sheriff, under executions having a lien anterior to the death, and Curtis and Stover became the purchasers, with notice of the lien. Afterwards, Curtis mortgaged his interest to Stover. The prayer of the bill is, that the lien may be enforced.

After the defendants' answers were in, they moved to dismiss the bill for want of equity, and the chancellor being of opinion White had waived his lien by transferring the notes, dismissed the bill as containing no equity.

The complainant now assigns the decree as error.

C. DEAR, for the plaintiff in error.

J. D. JENKINS, contra, argued--

1. The decree was proper; as the vendor's lien is personal and not the subject of transfer, it follows, that when the notes are transferred, the lien is barred. [ Hall v. Click, 5 Ala. R. 363; 1 Paige, 506; 6 Howard, Miss. 363; 5 Porter, 456; 15 Vesey, 327; 4 Wheat. 294; 2 Vern. 281; 6 Dana, 393; 7 Wheat. 52; Roper v. McCook, 7 Ala. 318.]

2. However the equity may be, the bill was properly dismissed, because Evans' administrator and heirs were not parties. [ Haley v. Bennett, 5 Porter, 410; 6 Dana, 140.___

DJ GOLDTHWAITE, J.

We think this case is within the influence of the decision made by us in Roper v. McCook, 7 Ala....

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