Hodges v. Winston

• Decision Date: 05 January 1892
• Citation: 10 So. 535,94 Ala. 576
• Parties: HODGES ET AL. v. WINSTON ET AL., (TWO CASES.)
• Court: Alabama Supreme Court

10 So. 535

94 Ala. 576

HODGES ET AL. v. WINSTON ET AL., (TWO CASES.)

Supreme Court of Alabama

January 5, 1892

Appeal from chancery court, Marshall county; S. K. MCSPADDEN Chancellor.

On the 30th day of January, 1886, John G. Winston, Sr., filed his bill against Edward Winston, his son, seeking the foreclosure of an alleged vendor's lien on certain lands therein described. Decree pro confesso was taken against said Edward Winston on May 10, 1886, and on the 18th of May appellants Hodges and Matheney were, by leave of the court permitted to come in as parties, and they filed their answers at once, averring that they were judgment creditors with a lien against the land of Edward Winston, and denying on information and belief the existence of complainant's lien. On the 25th of November, 1889, complainant was allowed to amend his bill by making the appellant Martha Sloan a party defendant. She thereupon filed her answer, alleging that she held a mortgage on said lands executed by Edward Winston and wife to secure a loan made to them contemporaneously with the execution of the mortgage claiming to be a bona fide purchaser without notice and denying on information and belief the existence of complainant's lien. On the 24th day of March, 1886, Nancy A. Winston, wife of the said Edward Winston, filed her bill in the same court by her next friend, A. R. Hooper, against her husband, John G. Winston, Sr., Martha Sloan, Jesse Sloan, Jasper M. Matheney, James W. Hodges, A. G. Henry, and F. M. Kirby, alleging that moneys belonging to her statutory estate to the amount of $1,980.34 had been used by her husband in the purchase of said lands from John G. Winston, Sr. and praying that they be declared subject to a trust in her favor, and sold for the payment of said $1,980.34. The bill was subsequently dismissed as to Henry and Kirby. Decrees pro confesso were taken against Jesse Sloan, Edward Winston, and John G. Winston, Sr. On the 25th of April, 1886, defendants Hodges and Matheney filed a joint and several answer, averring that they were judgment creditors of said Edward Winston, and had acquired a lien without notice of said Nancy's alleged claim upon said lands, and denying on information and belief that any such claim existed. They prayed that their answers might be taken and held for cross-bills, and the land sold to satisfy their liens. They also embodied in their answers several grounds of demurrer. On the 28th of April, 1886, defendant Martha Sloan filed her answer, averring that she was a mortgage creditor, claiming to be a bona fide purchaser without notice, and denying on information and belief that complainant Nancy A. Winston had any claim whatever in said lands. She prayed that her answer might be taken and held for a cross-bill, and her mortgage foreclosed. She embodied in her answer several grounds of demurrer. No notice of the demurrers of the defendants is made either in the decree of reference or the final decree; and the failure of the court to pass upon the demurrers, among other things, is assigned as error. To these several cross-bills, John G. Winston, Sr., Edward Winston, and Nancy A. Winston filed answers, denying that Hodges, Matheney, and Mrs. Sloan were creditors and purchasers without notice, and averring that at the time their several liens attached they had notice of the existence of said Nancy's interest in said lands.

Brown & Street, for appellants.

Watts & Son, for appellees.

MCCLELLAN J.

These cases were tried as one in the court below, and are so submitted, and will be considered here. "The rule as to proof of bona fide purchase is that the party pleading it must first make satisfactory proof of purchase and payment. This is affirmative, defensive matter in the nature of confession and avoidance, and the burden of proving it rests on him who asserts it. Ei incumbit probatio qui dicit. This done, he need not go further, and prove he made such purchase and payment without notice. The burden here shifts, and, if it be desired to avoid the effect of such purchase and payment, it must be met by counter-proof that before the payment the purchaser had actual or constructive notice of the equity or lien asserted, or of some fact or circumstance sufficient to put him on inquiry which, if followed up, would discover the equity or incumbrance. Craft v. Russell, 67 Ala. 9, which collects the authorities; Taylor v. Association, 68 Ala. 229; Creswell v. Jones, Id. 420." Barton v. Barton, 75 Ala. 400, 402. In the case at bar, Mrs. Sloan sets up that she became a mortgagee of the land in controversy for value, and without notice of the claim now advanced by John G. Winston, Sr., for purchase money alleged to be due from Edward Winston, the mortgagor, who held the legal title, and also without notice of the claim now advanced of Nancy Winston, the wife of said Edward, which proceeds on the theory that the land was in part paid for with funds belonging to her statutory separate estate, and is sought to be worked out through a declaration of trust in her favor for reimbursement. That Mrs. Sloan did lend Edward Winston the money...