Cook v. Atkins

• Decision Date: 29 June 1911
• Parties: COOK ET AL. v. ATKINS.
• Court: Alabama Supreme Court

56 So. 224

173 Ala. 363

COOK ET AL. v. ATKINS.

Supreme Court of Alabama

June 29, 1911

Appeal from Chancery Court, Cherokee County; W. W. Whiteside Chancellor.

Suit by Fannie Atkins against James H. Cook and others. From a decree overruling demurrers to the bill, defendants appeal. Affirmed.

McConnell & Conner, for appellants.

Blackwell & Agee, for appellee.

SAYRE J.

The bill in this case is filed by appellee against the heirs at law of William C. Cook, deceased, and seeks the enforcement of an alleged vendor's lien. The facts shown by the amended bill are as follows: In 1865, David Atkins sold and conveyed to William C. Cook a certain tract of land in Cherokee county. The purchase money was secured by a note in words and figures as follows: "$3,000.00. On or before the first day of January, 1866, I promise to pay David Atkins, or order, three thousand dollars ($3,000.00) in gold for certain parcels of land lying in Cherokee county, which I have this day purchased of him, known as the Solomon and Robert McGhee places, containing three hundred (300) acres more or less. The interest of the above amount, I promise to pay annually in the paper currency of the country, but if that currency is at a greater discount than fifty per cent (50%), I promise to pay an amount greater in proportion to that discount. I also promise that if I find that I cannot pay the principal of the note, I will pay up the interest and deliver the land up again to the lawful holder of this note. Witness my hand and seal the 25th day of September, 1865. [ Signed] William C. Cook. [ Seal.]" Cook died in the year 1867, leaving as his heirs children, the survivors of whom, and the children and heirs at law of others who have died in the meantime, are made parties defendant to the bill. After the death of Cook, his son, James H. Cook, paid interest on the debt secured by the note. These payments, made at intervals of one and two years and averaging about $240 a year, cover the period from Cook's death to the year 1910, when this bill was filed. The averment is that they were made for and on account of the heirs at law of William C. Cook. Complainant claims in virtue of her ownership of the note and all rights accruing therefrom, bequeathed to her by the last will and testament of her deceased husband, David Atkins.

Questions of controlling importance are: Whether a lien was reserved; whether, if there was a lien, it has been lost by laches or the statute of limitations; and whether the presence of a personal representative of William C. Cook is necessary to a proper disposition of the cause. It is suggested that the receipt of interest payments from James H. Cook may have constituted the acceptance of independent security; but it seems obvious that there is no merit in the suggestion, and we will not refer to it again. It is also said that the land is not accurately described. We are unable to find that this point was taken by the demurrer. But if, as the brief seems to assert, some small part of the land is so vaguely described that no decree in respect to it can be safely made that is a matter which does not affect the equity of the bill, and will be properly cared for in the event a final decree is rendered for complainant.

Was there a lien? The formal acknowledgment in the deed of the receipt of the consideration for the conveyance does not conclude the grantor or those claiming under him, if in fact the purchase price remains unpaid. Bankhead v. Owen, 60 Ala. 457; Wilkinson v. May, 69 Ala. 33. Equity raises the lien by implication, unless there is satisfactory evidence of a purpose to exclude it, and the vendee who resists its enforcement assumes the burden of showing that it has been intentionally displaced or waived by the consent of parties. If the question remains in doubt, the lien attaches. Wilkinson v. May, supra. The recital of the note that it was given to secure the purchase money of the land evidenced the intention of the parties that a vendor's lien was retained, even though it showed a collateral security in some sort, in that the vendee promised that, if he could not pay the principal, he would pay the interest and deliver up the land to the lawful holder of the note. Tedder v. Steele, 70 Ala. 347; Hood v. Hammond, 128 Ala. 569, 30 So. 540, 86 Am. St. Rep. 159. This promise did not provide for that contingency in which the vendee might be able, but unwilling, to pay. It was in truth no security to the complainant or her assignor, but an option by which the promisor reserved the privilege of discharging the principal of the debt by a reconveyance of the land. We conclude that there was a lien.

It does not appear that defendant's position in opposition to the asserted lien has suffered impairment or embarrassment in any respect by mere delay. So, then, the imputation of laches to complainant by the demurrer must find support in the general policy of repose which the law adopts without reference to the hardships or difficulties of individual cases, and must be measured by the legislative declaration of that policy to be found in the statute of limitations. At the time of filing the bill, more than 40 years had passed since the accrual of the lien and the death of the vendee. If the case for a lien stood upon the original transaction, without more, there could be no question but that the lien had been lost long before this suit was commenced. What effect, then, is to be assigned to the continuous payments of interest by the heirs during this period? This question must be answered in the...