Hood v. Hammond

• Decision Date: 16 January 1901
• Citation: 128 Ala. 569,30 So. 540
• Parties: HOOD v. HAMMOND. [1]
• Court: Alabama Supreme Court

30 So. 540

128 Ala. 569

HOOD v. HAMMOND. ^[1]

Supreme Court of Alabama

January 16, 1901

Appeal from chancery court, Etowah county; J. R. Dowdell Chancellor.

Bill by J. D. Hammond against Oscar R. Hood and others. Decree for complainant, and defendant Hood appeals. Affirmed.

The case as presented is as follows: On the 1st of April, 1887 complainant, Hammond, was the owner of certain interest in lands described in the bill, which, on that day he sold and conveyed to J. S. Stewart, for $10,000, $2,000 in cash, and four notes executed by said Stewart to complainant, for $2,000 each, payable in two, four, six and eight months respectively, with interest from date. These notes recited that they were given "for value in real estate, this day sold and deeded to J. S. Stewart," etc. The deed from complainant to Stewart, executed the same day, recited the consideration to be $2,000 in cash and the further consideration of the execution and delivery by the vendee Stewart, to complainant, of said four promissory notes described above. At the same time, and as a part of the same transaction, complainant executed and delivered to said Stewart an agreement in writing, reciting the sale of said lands by him to Stewart, and the terms of the sale, and agreeing with the said Stewart, his successors, assigns or associates, if he or they should (adopting the language of the agreement), "sell any portion of said lands, then if he or they, shall pay to said Hammond in cash, one-third of the amount for said land, or such portion of the same [as] is sold, then I, the undersigned [J. D. Hammond] bind myself to release the vendor's lien on said land, or such portion as may be sold: provided, however, if all of said land shall be sold, it shall not be sold for less than ten thousand dollars, and if only a portion or portions be sold, it must not be sold for a less sum than its pro rata share of the ten thousand dollars, as compared to the whole interest sold. This does not prohibit the said parties from selling at lower rates than the above rates, but the undersigned is not bound to release the vendor's lien when sold for less."

The lands in the first instance were sold to said Stewart, as trustee for himself and four others, who afterwards partitioned the same between themselves, leaving a definite, specified one-fifth portion of the whole allotted to each.

On the 1st January, 1890, the said Stewart sold and conveyed to C. D. Henley as trustee for himself and associates, the lots of land partitioned to him in said partition for $6,000,-$1,500 in cash, $1,500 payable May 1, 1890, and $3,000 payable November 1, 1890, for which deferred payments of $1,500 and $3,000 the purchasers executed to said Stewart their two promissory notes for these amounts, respectively, bearing interest from date. Stewart thereafter, but when does not appear, assigned the said $3,000 note by his blank indorsement, to the complainant, as collateral security for the payment of said two $2,000 original purchase-money notes of his to complainant, retaining the other $1,500 note in his possession.

Stewart died February 24, 1892, and on May 12, 1892, the defendant, O. R. Hood, was appointed his administrator. On the 30th of August, 1892, the defendant, Hood, as such administrator, coming into the possession of said $1,500 note retained by his intestate, filed his bill in the chancery court of Etowah county, against Henley and associates, to enforce the vendor's lien of his intestate on said lands, for the balance due on said $1,500 note, and obtained a decree of that court against said defendants, for the sale of said lands for the payment of the sum of $1,981.63, the balance ascertained to be due thereon; and the register, under the decree of the court, advertised and sold said lands so partitioned to said Stewart; and defendant became the purchaser of the same for the amount of the costs due. To this suit, the complainant was not made a party defendant.

The present bill was filed by complainant, against the defendant Hood, as administrator, to set aside said decree above referred to; to enforce his vendor's lien on all of said lands sold by him in the beginning to defendant's intestate, for the payment of the amount due on his original purchase-money notes for $2,000 each, and also to enforce the vendor's lien on the lands sold to said Henley and associates, for the payment of said $3,000 note given at the same time with said $1,500 note by them to said Stewart, which note was transferred, as stated, by said Stewart to complainant as collateral security for his said original purchase-money notes for said lands to complainant.

The defendant, O. R. Hood, as administrator, demurred to the bill assigning in various phases that the bill shows that the complainant had waived his vendor's lien by accepting the note which was given to Stewart by Henley, and that upon the facts stated in the bill the complainant was not entitled to a vendor's lien. Upon the submission upon this demurrer, the court rendered a decree overruling it. Thereupon the defendant, O. R. Hood, filed an answer to the bill, in which he admitted the averments of the said bill relating to the sale and transfer of the property involved in the controversy, and the execution of the several notes therefor, and the assignment of the note for $3,000 by J. S. Stewart to the complainant. The defendant further averred in his answer, by way of defense, that the complainant had waived his lien on the original note by accepting the note for $3,000 given by Henley as collateral security, for the balance due upon the original notes given by Stewart to complainant; and further that the complainant, by failing to protest said note for $3,000, and by failing to collect the money due upon it out of the maker, C. D. Henley, and out of the property owned by Henley, has damaged the estate of the intestate to that extent, which must be taken as a payment; and further that the estate of Stewart, of which the defendant Henley is administrator, had been declared insolvent, and that the original notes were never filed in the office of the judge of probate as a claim against said estate, and that by reason of not having been so filed, the said notes owned by the complainant are barred and the estate of said Stewart is not liable therefor, and that the $3,000 note reverts to the respondent, Henley, as administrator, and that the complainant cannot maintain the present bill to enforce the vendor's lien for the amount due on said notes. It was further averred in said answer that the note given by Henley to the respondent's intestate for $1,500, had come into the hands of the respondent Hood, as such administrator, and that he had filed a bill and had a vendor's lien declared in his favor as administrator of the estate of said Stewart, and the lands sold by Stewart to Henley had been sold under a decree declaring said vendor's lien and purchase by the respondent Hood as such administrator. The respondent asked that his answer to the bill be taken and treated as a cross bill and that upon the final hearing that the chancellor would decree that the complainant was not entitled to the relief prayed for, and so far as the respondent Hood is concerned, that the chancellor will deny any lien in favor of the complainant as to the land sold by respondent to Henley, and which was purchased by the respondent Hood under a decree declaring a vendor's lien in his favor upon said land.

To the cross bill of the defendant, the complainant demurred, assigning in various ways that the facts averred in said answer and cross bill constitute no ground or reason for the complainant's not having the relief prayed for.

Upon the submission of the cause upon this demurrer and the cross bill, the demurrer was sustained. No evidence was taken...