Thompson v. Sheppard

• Citation: 5 So. 334,85 Ala. 611
• Parties: THOMPSON v. SHEPPARD.
• Decision Date: 22 January 1889
• Court: Supreme Court of Alabama

5 So. 334

85 Ala. 611

THOMPSON v. SHEPPARD.

Supreme Court of Alabama

January 22, 1889

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Bill filed by Fred G. Sheppard against Newcomb F. Thompson and J N. Rutledge, to enforce a vendor's lien for the unpaid purchase money of land, which the complainant had sold and conveyed to Thompson. The conveyance was dated December 13 1886, and contained the usual covenants of warranty, and was signed by F. G. Sheppard and his wife, and duly acknowledged by both of them, but recited that the wife "joins in this deed solely for the purpose of relinquishing her dower in the land hereby conveyed." The price of the land was $6,000, of which $1,500 was paid in cash, as the conveyance recited, and the purchaser's three notes taken for the residue, each for $1,500, payable one, two, and three years after date, with interest, and each containing a waiver of exemption as to personal property. The first of these notes not being paid at maturity, the complainant filed his bill to enforce a vendor's lien, and asked that the cause be retained under the orders of the court until the maturity of the other notes, or his rights be otherwise protected by the decree. The parcel of land, which the deed recited "is now occupied as a homestead by the grantor herein," was thus described in the deed: "A piece of land about one hundred feet long or wide, fronting on the Huntsville road and extending east to the section line, it being all of the north-east quarter of the south-east quarter of the south-east quarter of the north-east quarter of section twenty-six, (26,) township seventeen (17) south, of range three (3) west, except a strip 114 feet wide on the north end thereof, and except a strip 150 feet on the south end thereof, heretofore sold off by the grantors herein; the same being balance of lot conveyed to the undersigned, Fred G Sheppard, by J. C. Prine and his wife, E. M. Prine, on the 2d June, 1884, and recorded in vol. 61, page 58." The land was thus described in the bill: "Said piece of property is bound by the Huntsville road on the west, by the line of McCafferty on the north, by section line on the east, and by residence property of _____ Brown and D. T. Marable on the south; being a piece of land 82 feet wide, and 340 feet long, more particularly described in a deed from F. G. Sheppard and wife to N. F. Thompson, of date December 13, 1887, which is referred to; which said property, with the dwelling thereon, was occupied by complainant for a residence prior to said sale to Thompson, and is now occupied by said Thompson as a homestead, with the exception of a portion thereof sold by said Thompson to said J. N. Rutledge, as hereinafter set forth. All of said property is near Birmingham, Ala., on what is known as the 'North Highlands,' and is situated in the N.E. quarter of S.E. quarter of S.E. quarter of N.E. quarter of sec. 26, T. 17, range 3 west, in said state and county." The defendants each demurred to the bill, "because the description of said land is confused, indefinite, and incapable of identifying the land in controversy," and because the vendor's lien was waived by the waiver of exemptions contained in the notes as set out in the bill. The defendant Thompson insisted in his answer, and also by cross-bill, that the conveyance executed to him by the complainant "was and is utterly void," because it is insufficient to pass the title to the homestead, and therefore asked a rescission of the contract; and he further insisted that, if the contract should not be rescinded, he was entitled to an abatement of the purchase money on account of the defect of the title, and on account of a deficiency in the quantity of the land, alleging that it contained only 66 front feet, and claimed compensation for a building which he had erected on the land. The court overruled the demurrers, and on final hearing, on pleadings and proof, rendered a decree for the complainant, and this decree is now assigned as error by the defendant Thompson.

Martin & McEachin, for appellant.

S.D. Weakley, for appellee.

CLOPTON J.

The bill of complaint, which is filed by appellee to enforce a vendor's lien on real estate, substantially conforms to the requirement of equity pleading, that such bill shall describe the land sought to be charged with sufficient certainty and definiteness to inform the court what particular land it is asked to decree to be sold,-to render it capable of identification. The particular land can be ascertained and identified by the description as the residence of the complainant at the time of the sale and conveyance, bounded on the east by the section line, on the west by the Huntsville road, and on the north and south by the lands of other persons, being a part of a small subdivision of a subdivision of a quarter section; the numbers of the section, township, and range west being stated, and the state and county in which it is situate. This is reasonable certainty, which is all that the rule requires. Hurt v. Blount, 63 Ala. 327; Whitehead v. Lane, 72 Ala. 39; Gaston v. Weir, 84 Ala. 193, 4 South. Rep. 258.

The notes taken for the deferred payment of the purchase money contain a waiver of exemption of personal property. It is contended that taking such notes constitutes a waiver of the vendor's lien. It is well settled that when a vendor takes the personal security of the vendee only, the equitable lien will be declared and sustained, unless waived by agreement; but when he takes any distinct and independent security for the unpaid purchase money, such as the personal responsibility of third persons, or a mortgage on other property, the presumption arises that it was his intention to take such security as a substitution for the lien, which presumption will prevail, and the lien considered as waived, in the absence of an agreement for its retention. The question of waiver is one of fact or intention. The notes recite that they are given for the unpaid purchase money of land, which strongly evinces an intention to retain the vendor's lien, and becomes almost, if not quite, conclusive, when considered in connection with the recital of the notes in the deed as part of the consideration. Tedder v. Steele, 70 Ala. 347; Chapman v. Peebles, 84 Ala. 283, 4 South. Rep. 273. A waiver of exemptions, specified in a note, creates no lien upon the property that would be otherwise exempt. The only effect is to subject the exempt property to levy and sale under an execution on any judgment which may be rendered on the note, the same as other property of the debtor. Such note may enhance the personal security of the vendee, but can in no sense be regarded a distinct and independent security. The taking such note manifests rather an intention to look to the personal security of the vendee only, and is not presumptive of the waiver of the vendor's lien. Woodall v. Kelly, ante, 166, (December term, 1888.)

The defendant Thompson, who is the original vendee, seeks by cross-bill an abatement of the purchase money on account of an alleged deficiency in the quantity of the land sold. The contention is that the lot was sold by the front foot, and falls short of the number of feet represented. As to the fact whether the lot was...