First Nat. Bank of Gadsden v. Thompson

• Decision Date: 29 July 1897
• Citation: 116 Ala. 166,22 So. 668
• Parties: FIRST NAT. BANK OF GADSDEN v. THOMPSON ET AL.
• Court: Alabama Supreme Court

22 So. 668

116 Ala. 166

FIRST NAT. BANK OF GADSDEN v. THOMPSON ET AL.

Supreme Court of Alabama

July 29, 1897

Appeal from city court of Gadsden; John H. Disque, Judge.

Bill by the First National Bank of Gadsden against Isabel Thompson and others to enforce a lien on certain land for the purchase money. From the decree, complainant appeals. Affirmed.

George D. Motley, for appellant.

Burnett & Culli, for appellees.

COLEMAN J.

In February, 1885, one Eaton sold and conveyed to Isabel Thompson a certain tract of land described in the bill of complaint, and reserved in the deed of conveyance a lien upon the land to secure the balance of the purchase money evidenced by her promissory note. In October, 1891, the vendee, Isabel Thompson, and husband conveyed a strip of the land to the Chattanooga Southern Railway Company, for a right of way. The railroad company took possession of the strip of land under the conveyance, and constructed its railroad, and has since continued in possession and use of it for the transportation of passengers and freight. The original vendor transferred the note to complainant, who filed the present bill to enforce the lien reserved in the deed of conveyance to secure the payment of the purchase money. The railroad answered the bill, admitted the conveyance for a right of way, the construction of the railroad, and its operation with full knowledge and without objection on the part of the owner of the note or the vendor. The respondents denied the right of complainant to a lien upon the roadbed, and sale of the same. It averred its readiness to make just and equitable compensation for the right of way, and bear such proportionate share of the amount due as was equitable and right. It prayed for a sale of the other lands first, and an order of reference to ascertain what proportion of the purchase-money debt it should pay, and prayed that its answer be taken as a cross bill. The complainant moved to dismiss the cross bill, for want of equity, which motion was overruled. On final submission, the following decree was rendered, and complainant appealed: "And, upon consideration, it is ordered, adjudged, and decreed that the complainant, the First National Bank of Gadsden, has a lien upon the lands described in the bill for the purchase money thereof, and that complainant is entitled to relief. It is therefore ordered that it be referred to the register to ascertain the amount...