State v. Williams

• Decision Date: 17 December 1925
• Docket Number: 1 Div. 399
• Citation: 214 Ala. 89,106 So. 500
• Parties: STATE ex rel. HAMILTON v. WILLIAMS, Probate Judge.
• Court: Alabama Supreme Court

106 So. 500

214 Ala. 89

STATE ex rel. HAMILTON v. WILLIAMS, Probate Judge.

1 Div. 399

Supreme Court of Alabama

December 17, 1925

Appeal from Circuit Court, Mobile County; C.A. Grayson, Judge.

Petition of the State of Alabama, on the relation of Henry C Hamilton, for mandamus to Price Williams, as Judge of Probate of Mobile County. From a judgment on demurrer, relator appeals. Reversed and remanded.

Gordon & Edington, of Mobile, for appellant.

Harwell G. Davis, Atty. Gen., A.A. Evans, Asst. Atty. Gen., and Lyons, Chamberlain & Courtney, of Mobile, for appellee.

GARDNER J.

The instrument tendered for record is an assignment of a vendor's lien. The deed which forms the basis for the lien was executed in March, 1925, and duly recorded, and presumably, the mortgage tax due thereon has been paid.

A vendor's lien is implied by law (Kyle v Bellenger, 79 Ala. 516), and it is an equitable right to subject the land in equity to the payment of the purchase price (39 Cyc. pp. 1787, 1788). "After conveyance, the lien of the vendor is a mere equitable charge, without any estate in the lands, *** a mere creation of equity." Sykes v. Betts, 87 Ala. 537, 6 So. 428; Hester v. Hunnicutt, 104 Ala. 282, 16 So. 162.

No question is raised as to whether or not this instrument is of such a character as comes within the influence of our recording statute (section 6887, Code 1923), as the demurrer only takes the point that it is such an instrument as requires the payment of the privilege tax for recordation, as provided by General Acts 1923, p. 318. We therefore confine the decision to this latter question.

The statute begins with the following language:

"No deed, bill of sale or other instrument of like character, which conveys any real or personal property within this state, or which conveys any interest in any such property, shall be received for record unless the following privilege or license tax shall have been paid upon such instrument before the same is offered for record."

This statute was in part construed in the recent case of State ex rel. Blue v. Stiles, Judge of Probate, 212 Ala. 468 102 So. 901, but the matter then decided is not here involved. We think, however, the language of the statute clearly indicates that for the imposition of this privilege tax the instrument offered for record must convey real or personal property or some interest therein. The vendor's lien here assigned is not an estate or...