Chapman v. Peebles

• Decision Date: 30 May 1888
• Citation: 84 Ala. 283,4 So. 273
• Parties: CHAPMAN v. PEEBLES.
• Court: Alabama Supreme Court

4 So. 273

84 Ala. 283

CHAPMAN v. PEEBLES.

Supreme Court of Alabama

May 30, 1888

Appeal from chancery court, Pickens county; THOMAS W. COLEMAN Chancellor.

The appellee, Emory B. Peebles, filed this bill to enforce a vendor's lien on land sold by his father, W. B. Peebles. The said W. B. Peebles having died, the note given him for the unpaid purchase money, in the division and distribution of the estate, became the property of his son, the complainant in this suit.

Green B. Mobley, for appellant.

M L. Stansel, for appellee.

CLOPTON J.

Appellee brings the bill to enforce a vendor's lien. It alleges that W. B. Peebles, the father of the complainant, sold the lands mentioned therein to John R. Chapman, who gave the note set forth in the bill for the unpaid balance of the purchase money, and that the vendor, at his request, made the conveyance to the defendants, one of whom was his wife, and the other his minor son. The defense set up by the answer is that the lands were purchased by the defendants, who made the cash payment with their own money, and that it was distinctly understood and agreed that the vendor would look solely to the maker of the note for its payment, and that the land should be discharged of any lien. The contestation between the parties is whether there was a waiver, or an agreement to relinquish the vendor's lien.

It is proper, before proceeding to consider the case on the merits to notice objections to the testimony which were taken by the defendants, and thus determine what evidence should be considered in deciding the case. It is objected that the witness Cooke is incompetent to testify to the facts stated by him, on the ground that he was the attorney of Chapman, and that they were communicated to him in professional confidence. Notwithstanding he was his attorney in other matters, and the retained adviser in his general business, it is admissible for him to testify to the facts that he wrote the note for the purchase money; that Chapman executed it in his presence; and that he paid him, on the same day, money, which was in the hands of witness as his attorney. These were acts, not communications in professional confidence, and do not come within the rule which excludes privileged communications. 1 Greenl. Ev. § 240, note a; Railway Co. v. Yeates, 67 Ala. 164. The chancellor did not err in overruling the objection to the testimony of the complainant in respect to the admissions and declarations of the defendants relating to the unpaid note, and the reservation of a vendor's lien. The evidence does not explain or vary the legal effect of the note, nor contradict the written terms. The chancellor considered the testimony of Mrs. Chapman in regard to transactions with the deceased vendor, for the reason that no objection to her competency was taken in proper time. We shall also consider it, and give it such weight as her relation to the suit, and interest in the subject-matter, and its corroboration or contradiction by the other testimony, may authorize.

There is no dispute that the note was given for the unpaid balance of the purchase money. In the absence of an agreement to the contrary, a vendor's lien is presumed to exist when land is sold and conveyed, and no security taken for the purchase money other than the personal obligation of the vendee unless the nature of the contract or the attendant circumstances satisfactorily show that the reservation of the lien was not intended. It cannot be successfully claimed that there is anything in the peculiar nature of the contract or the attendant circumstances, other than is shown by the evidence of Mrs. Chapman, which shows a waiver of the lien. The mere fact that the deed was executed to the defendants is not sufficient to overcome the presumption. The lien is not waived or abandoned when the vendor accepts...