Hendon v. Zirkle & Moore

• Decision Date: 17 January 1918
• Docket Number: 6 Div. 604
• Citation: 201 Ala. 171,77 So. 697
• Parties: HENDON v. ZIRKLE & MOORE.
• Court: Alabama Supreme Court

77 So. 697

201 Ala. 171

HENDON v. ZIRKLE & MOORE.

6 Div. 604

Supreme Court of Alabama

January 17, 1918

Rehearing Denied Feb. 7, 1918

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

Bill by Zirkle & Moore against T.S. Hendon. Decree for complainants and defendant appeals. Affirmed.

Lacy Lacy & Shepherd, of Jasper, for appellant.

Horace Stringfellow, of Montgomery, for appellees.

GARDNER J.

This bill was filed by the appellees for the enforcement of a vendor's lien upon the lands therein described, for the payment of part of the purchase money, which, by the consent of the vendor (the Lost Creek Coal & Mineral Land Company) was to be paid to appellees as their commission in selling the land. The equity of the bill was upheld by this court on former appeal. Zirkle v. Hendon, 180 Ala. 209, 60 So. 834. For a better understanding of the averments of the bill reference may be made to the statement found in the former opinion. To make more clear, however, the issues of facts here presented, the following excerpt from the opinion on the former appeal is here set forth:

"The bill expressly states that the $5 to be paid by consent of parties to appellants was part of the purchase money, and furthermore emphasizes such averment by averring that the price to be paid was $20 per acre, $5 of which was to be paid to the appellants, and $15 to the coal company the owner of the land. If the purchase price is $20 per acre, and a part is to be paid to one person and a part to another, clearly one portion is as much a part of the purchase price as the other. *** A vendor's lien exists and is enforced not only when the consideration is to be paid to the vendor, but also when it is to be paid to a third person by or with his consent. *** The lien having arisen under the agreement of the parties in favor of appellants, the coal company could not without the consent of appellants displace the same, by subsequently executing an absolute conveyance to the purchaser, Hendon, upon the payment by him to the coal company of the $15 per acre its part of the consideration for the land."

The appellant in his answer denied that the appellees were the agents of the vendor, the Lost Creek Coal & Mineral Land Company, in the sale of said land to the appellant; but, on the contrary, alleged that they were his agents to purchase the same for him from said coal company; and that for said services he agreed to pay them (appellees) the equivalent of $5 per acre as commission. The answer further sets up that in no event, however, could the $5 per acre, now insisted upon by appellees, be considered a part of the purchase price of the lands, but that in fact the purchase price was $15 per acre, and that $5 per acre was a mere collateral agreement by way of compensation to the appellees, and would not therefore support a vendor's lien.

In this manner, therefore, two questions of fact are presented for determination. It is, of course, recognized that in order for the complainants (appellees) to be entitled to the enforcement of a vendor's lien the sum of $5 per acre must have...