Allen v. Caylor

• Decision Date: 29 October 1898
• Citation: 120 Ala. 251,24 So. 512
• Parties: ALLEN ET AL. v. CAYLOR.
• Court: Alabama Supreme Court

24 So. 512

120 Ala. 251

ALLEN ET AL. v. CAYLOR.

Supreme Court of Alabama

October 29, 1898

Appeal from chancery court, Pike county; Jere N. Williams Chancellor.

Bill by M. J. Caylor against A. A. Allen, administrator, and others. Demurrers to the bill were overruled, and defendants appeal. Affirmed.

Parks &amp Son, for appellants.

Hubbard & Hubbard, for appellee.

HEAD J.

The bill filed by the appellee states in the alternative four grounds for relief. Stephen Jackson purchased a lot of three acres of land at the price of $280, taking title to himself and lived thereon until his death. The appellee, Mrs. Caylor in her first ground, alleges that she let Jackson have $100, which he paid on the purchase money of the lot, at his request, under agreement with him that she should have an interest in the lot to the extent of the amount of her money that was paid for the same; and she says the deed should have been taken in the names of both. Her second ground is that Jackson, being unable to pay $100 of the purchase money, applied to her for that sum to pay the same, promising that she should be interested in the land to the extent of the sum she might advance to pay the purchase money; that she paid off and discharged $100 of the purchase money under said request, agreement, and promise, which has never been repaid to her; and that she is entitled to an interest in the land to the extent of said sum, or that she has a lien on the land to that extent for the purpose of reimbursement. Her third ground is that, after Jackson purchased, and paid $180 of the purchase money of the land, he became unable to pay, or did not have the money to pay, the balance of $100, and requested her to pay the same, stating at the time that she should have a claim or lien on the land for the same, and that she paid the $100 in accordance with such request. The bill states that all the foregoing agreements, directions, and promises were in parol, and not in writing. Her fourth ground is that Jackson paid $180 of the purchase money; that he came into the possession of $100 of her money, which was not loaned to him, nor delivered to him, by her; that he took this money, and applied it to the payment of the purchase money of the land, thereby completing the payment of the purchase money. The administrator and heirs of Jackson are parties defendant, and the prayer is for a decree requiring a conveyance to complainant of an interest in the land to the extent of the amount paid by her, or a decree holding that she has a lien on the land for that sum, with interest, and that the land be sold to satisfy the same. Prayer for general relief is added. The respondents demurred to the bill because of the parol character of the alleged agreements sought to be enforced, and for multifariousness, in that it is sought to enforce said express agreements, and also to establish an implied trust. The administrator demurs separately that he is not a proper party. The demurrers, which were to the whole bill, were overruled, and respondents appeal.

The first and second grounds are clearly nothing more than efforts to specifically enforce a parol agreement for the purchase of an interest in land, which cannot be done under our system. They do not show resulting trusts, for the reason that complainant merely contributed a sum of money to the purchase, not being an aliquot part of the whole. Bibb v. Hunter, 79 Ala. 351; 10 Am. & Eng. Enc. Law, 16.

The third shows that the vendor of Jackson had a vendor's lien on the land for $100, which complainant paid off at the request of Jackson, and under an agreement with him that she should have a claim or lien on the land for her reimbursement. This ground rests upon what is known as "conventional subrogation." Under that doctrine, a stranger paying off a vendor's lien at the instance of the debtor, and upon agreement that he shall have a lien for his reimbursement, stands in the shoes of the vendor in respect of the lien. This subrogation is purely conventional. It results directly from the agreement. It is in effect though not in form, an equitable assignment of the lien for the security of the advance, as in McMillan v. Gordon, 4 Ala. 716, where, a stranger paying off part of a mortgage debt at the instance of the mortgagor, and upon the latter's agreement that a lien would be given him on the mortgaged premises, and that he should be repaid out of the proceeds of the sale, it was held that the payment did not extinguish the mortgage debt, and that the party paying was entitled in equity to a pro tanto assignment of the mortgage; and this notwithstanding the agreement was not in writing. So, also, in Fuller v. Hollis, 57 Ala. 435, where the vendee of land holding a bond for titles procured Hollis to pay up the balance of purchase money due, agreeing that Hollis should have a lien on the land, and should take the deed from the vendor and hold the same as an escrow or security for the amount so advanced to take up the note. The vendor executed the deed to the vendee, and turned it over into the hands of Hollis, who held it as agreed. It was held that Hollis had a lien on the land for the amount paid by him to the vendor. In these cases, though as to the vendors the debts were really paid, yet by reason of the agreements which were parts and parcels of the transactions, and by which third parties were induced to make the payments, a principle of subrogation was applied; or, reaching the same result, the parties paying were treated as assignees of the vendors' liens. There are many authorities on this subject fully recognizing this right of substitution, a clear insight into which will be found in 24 Am. & Eng. Enc. Law, 290 et seq., where adjudged cases are cited and quoted from. "Conventional subrogation, as its name imports, results from the agreement of the parties, and can take effect only by agreement. The agreement is, of course, with the party to be subrogated, and, it seems, may be either by the debtor or creditor." 24 Am. & Eng....