Posey v. Dodson

• Decision Date: 22 May 1924
• Docket Number: 6 Div. 128.
• Citation: 100 So. 488,211 Ala. 335
• Parties: POSEY v. DODSON.
• Court: Alabama Supreme Court

100 So. 488

211 Ala. 335

POSEY v. DODSON.

6 Div. 128.

Supreme Court of Alabama

May 22, 1924

Appeal from Circuit Court, Marion County; R. L. Blanton, Judge.

Bill in equity by Ada Dodson against Julius H. D. Posey, seeking the enforcement of a vendor's lien upon lands. From a decree granting relief prayed, respondent appeals. Affirmed.

W. F Finch, of Jasper, for appellant.

S. T Wright, of Fayette, for appellee.

MILLER J.

This is a bill in equity to enforce a vendor's lien on land for balance of purchase money, and is filed by Ada Dodson, the vendor, against Julius H. D. Posey, the vendee.

The defendant by answer denies there is any unpaid purchase-money debt, and avers if there is any the complainant waived the lien for it and is estopped from claiming the lien, because she filed suit in the law side of the circuit court for the balance of the purchase-money debt, secured a judgment for it against him, had execution to issue and levy made on the land sold defendant, and he prevented its sale by claiming it was his homestead, which did not exceed in area 160 acres or in value $2,000, and that it was exempt from levy and sale under the execution for this purchase price debt, evidenced by the judgment.

The cause was submitted to the court on the pleading and an agreed statement of facts, and exhibits thereto, signed by the parties. The court by decree granted complainant relief held that defendant owed her $200 with interest, which amounted to $270 in all, balance of purchase price for the land; that she had a vendor's lien on the land for it; and ordered the land sold for its payment unless it and the cost of the cause were paid by the defendant within 15 days from the date of the decree. This appeal is prosecuted by the defendant from this decree, and it is the error assigned.

In April, 1919, complainant purchased from the defendant the S.E. 1/4 of N.W. 1/4 of section 11, township 13, range 12, in Marion county, for $1,700. She paid him $200 cash; he executed and delivered to her a deed conveying the land, and she then executed and delivered to him a mortgage on the land to secure $1,500, the balance of the purchase price. In July, 1919, the defendant purchased this same 40 acres of land from the complainant. She then executed and delivered to him a deed conveying the land, and he canceled and delivered to her the note and mortgage held by him on the land. He claims the consideration was $1,500, which was paid by canceling and delivering to her the note and mortgage. She claims the consideration was $1,700, and the cancellation of the mortgage paid $1,500 thereof, and $200 was to be paid her, which has never been paid. The deed recites the consideration was $1,500.

The complainant demanded payment of the $200 from the defendant; he refused to pay it. The complainant on December 12, 1919, filed suit in the circuit court against the defendant for this $200, balance purchase price for sale of this land to defendant, averring he agreed to pay it to her on or about August 10, 1919. The defendant filed pleas, and the issue was contested by the parties before a jury. The agreed statement of facts contains:

"The said judgment was secured by virtue of the claim of the said Ada Dodson that said J. H. D. Posey owed her said sum and as a portion of the purchase price of said land, described in the bill of complaint in this cause [and hereinbefore set out]; that the said Posey denied that he agreed to pay said Ada Dodson two hundred dollars, but the court and jury ascertained that he did owe the said sum and that it was due by virtue of the said agreement to reconvey said land to said J. H. D. Posey and as a balance of the consideration therefor, and that it was not due on account of any other thing, and that the said cause was therefore adjudicated by a court of competent jurisdiction, but that the said Posey denied that he owed the said amount or any amount."

The jury returned a verdict in favor of plaintiff for $248, the full amount of the principal and interest to date. The court rendered a judgment thereon in favor of plaintiff, and against the defendant. Execution was issued by the clerk of the court on the judgment. The sheriff levied on this 40 acres of land involved in this cause. The defendant filed with him an affidavit claiming it as a homestead, occupied by him and as exempt from sale under the execution, because it was less in area than 160 acres and did not exceed in value $2,000, and he filed similar affidavit in the office of the judge of probate. This judgment has not been set aside, and no appeal has been taken from it by either party. This 40 acres of land is all the land owned by the defendant, its value is less than $2,000, and he was living on it and claiming it as a homestead when the sheriff levied on it under the execution, and is still living on it and claiming it as his homestead. The land was not sold under the execution.

It is evident from the pleading, proof, and agreed statement of facts that complainant sold this land to the defendant for $1,700; that he paid $1,500 of the purchase price by canceling and surrendering to her the $1,500 note and mortgage thereon; and that $200,...