Spears v. Taylor

• Decision Date: 23 January 1907
• Citation: 42 So. 1016,149 Ala. 180
• Parties: SPEARS v. TAYLOR ET AL.
• Court: Alabama Supreme Court

42 So. 1016

149 Ala. 180

SPEARS v. TAYLOR ET AL.

Supreme Court of Alabama

January 23, 1907

Appeal from Chancery Court, Dale County; W. L. Parks, Chancellor.

Bill by S. A. Spears against R.I. Taylor and others. From a decree in favor of defendants, plaintiff appeals. Reversed and rendered.

This was a bill to enforce a vendor's lien. The appellant filed the bill against the appellee and against H. H. Dowling & Co., who are alleged to have a mortgage on the land. The defense was that the lien was waived by taking personal security on the note for the deferred payment. Dowling's defense was a want of notice and innocent purchaser without notice. The facts tend to show that the appellant sold appellee Taylor a lot of land, for which he received a large sum of money and a note for $100, describing the land and stating that it was a vendor's lien note. The surety signed it. The surety testifies that he would not have signed, but for the fact that it was a purchase-money note and that he so informed both parties. He also testified that he told Dowling & Co. of the fact that it was a purchase-money note, and that he signed it as such. The chancellor refused to enforce the lien, held the seller to have waived it, and that Dowling & Co. were innocent purchasers for value without notice. From this decree this appeal is prosecuted.

H. L Martin, for appellant.

H. B Steagall, for appellees.

DENSON J.

This is a bill filed by Mrs. S. A. Spears against R.I. Taylor, H. H Dowling & Co., and H. H. Dowling and Mrs. Neal Dowling, individuals composing the firm of H. H. Dowling & Co. The purpose of the bill is to enforce a vendor's lien on the lands described in the bill. The critical question for determination is: Did the complainant, under the circumstances accompanying the sale, waive her vendor's lien by taking personal security to secure the deferred payment?

The undisputed facts are that on August 30, 1904, the complainant, through her husband, who was her general agent, sold the lands to R.I. Taylor for the sum of $1,100, and the complainant executed to Taylor an absolute deed to the lands. Taylor paid $1,000 of the purchase price in cash, and complainant accepted his note for $100 with W. E. Clements as surety for the balance, due November 15, 1904. The note recites that it was given in part payment of the lands, and describes the lands. The first case involving this question that came before this court was decided in 1842. Foster v. Trustees, etc., 3 Ala. 302. In that case the court, speaking through Ormond, J., after reviewing the English and American cases, concluded with this summary: "It cannot, therefore, we think, admit of serious doubt that the law on this interesting subject ought to be considered as settled, at least in the United States, that, where a vendor of land executes a conveyance and takes personal collateral security as a pledge or mortgage, no lien exists on the land itself. So far as the presumed lien on the land for the purchase money rests for support on the supposed intention of the parties, it may be confidently stated that in this state it rarely, if ever, exists in the contemplation of the parties where a conveyance of the land is made." The doctrine as stated in that case has never been departed from by the court, as will be seen by reading numerous cases decided since its promulgation. Walker v. Carroll, 65 Ala. 61; Walker v. Struve, 70 Ala. 167; Donegan v. Struve, 70 Ala. 437; Donegan v. Hentz, 70 Ala. 437; Tedder v. Steele, 70 Ala. 347; Williams v. McCarty, 74 Ala. 295; Carroll v. Shapard, 78 Ala. 358; Chapman v. Peebles, 84 Ala. 283, 4 So. 273; Jackson v. Stanley, 87 Ala. 270, 6 So. 193; Hubbard v. Buck, 98 Ala. 440, 13 So. 364.

But the question of waiver, it has been held, is one of intention and the burden of proof is on the vendee to establish in the particular case that the lien has been intentionally displaced, or waived, by consent of the parties, express or implied. "If it remain in doubt, then the lien must be held to attach." Tedder v. Steele, 70 Ala. 347, 351, citing 2 Story's Eq. Jur. § 1224; 1 Perry on Trusts, § 236. In respect to the burden of proof it has also been held that "the...