Faulkner v. Fowler

• Decision Date: 06 June 1918
• Docket Number: 7 Div. 912
• Citation: 201 Ala. 685,79 So. 257
• Parties: FAULKNER v. FOWLER et al.
• Court: Alabama Supreme Court

79 So. 257

201 Ala. 685

FAULKNER v. FOWLER et al.

7 Div. 912

Supreme Court of Alabama

June 6, 1918

Appeal from Circuit Court, Cleburne County; Hugh D. Merrill, Judge.

Suit by W.W. Faulkner against W.J. Fowler and others. From an adverse decree, complainant appeals. Affirmed.

Johnson & McMahon, of Heflin, and Jones, Thomas & Field, of Montgomery, for appellant.

W.B Merrill, of Heflin, for appellees.

McCLELLAN J.

The sufficiency of this bill was affirmed on previous appeal from a decree overruling demurrer questioning its equity. Fowler v. Falkner, 73 So. 980. The bill was filed by Faulkner, appellant. The specific relief sought was the enforcement of a vendor's lien on 210 acres of land which the complainant sold and conveyed to W.J. Fowler on January 24, 1914. The agreed consideration for the conveyance was $3,150, $1,042 of which was paid in cash. For the balance of the purchase money Fowler transferred and assigned to Faulkner five notes, executed to Fowler by B.F. Snow, E.C Snow, and C.H. Hand. These notes, bearing date July 15, 1913 represented annually maturing installments of purchase money that B.F. Snow owed Fowler for machinery and three acres of land, on which the machinery and some buildings were located, bought by Snow from Fowler. All of these notes concluded as follows:

"This being part of purchase money for one plant of machinery & (3) three acres more or less."

Fowler's assignment of these notes was "without recourse" on him. This feature of the assignments was in accordance with the written agreement, signed by Fowler and Faulkner on January 24, 1914, wherein it was stipulated that the transfer of the notes should be "without recourse" on Fowler.

Most of the evidence bearing on the issues to be indicated was taken orally by the trial court, according to the practice established by the act approved September 22, 1915 (Gen.Acts 1915, p. 705). In such circumstances, the court's conclusion on issues of fact is accorded, on review, the same effect as the verdict of a jury, and will not be disturbed on appeal, unless it is plainly erroneous. Fitzpatrick v. Stringer, 76 So. 932, among others readily accessible. The present review is subject to the government of this rule.

The fact is thoroughly proven that Faulkner accepted the transfer by Fowler of the Snow notes in part payment of the purchase money, whereupon the rebuttable presumption arose that he the vendor, had waived the vendor's lien which, if not waived or surrendered, the law raises by implication. Kyle v. Bellenger, 79 Ala. 516; Jackson v. Stanley, 87 Ala. 270, 6 So. 193. While the burden of proof is, primarily, on him who asserts the waiver of a vendor's lien, yet when an act is shown which presumptively establishes a waiver of the lien, the burden shifts to the vendor to show that a waiver was not intended or effected, and this he may do by showing that there was a reservation which averted the waiver. Spears v. Taylor, 149 Ala. 180, 42 So. 1016, 13 Ann.Cas. 867. The complainant (appellant), his wife, and daughter testified that it was agreed between complainant and Fowler that the land conveyed by Faulkner "should stand good" for any unpaid balance of the purchase money; and the argument is that the thus summarized effect of the agreement between the parties was to negative the presumption of waiver consequent upon the acceptance by Faulkner of Fowler's notes from Snow and others. This evidence was contradicted, as to some of the occasions when the asserted agreement was stated by the vendee, and otherwise in their effects, by the testimony of the vendee's son, Fred Fowler, of Jeff Howle and of J.M. White, the justice who took the acknowledgment of Faulkner and wife to the conveyance. Fowler, the vendee, was adjudged insane some months after the sale of the land, and was not examined as a witness. The parties had prepared, on January 24, 1914, a writing that purported to set forth their contract. No reference to the reservation the complainant asserts was made therein. The circumstance is, we think, of important evidential value on the particular issue indicated. It is, at least, not probable that so...