Weaver v. Brown

• Decision Date: 21 May 1889
• Citation: 6 So. 354,87 Ala. 533
• Parties: WEAVER v. BROWN ET AL.
• Court: Alabama Supreme Court

6 So. 354

87 Ala. 533

WEAVER v. BROWN ET AL.

Supreme Court of Alabama

May 21, 1889

Appeal from chancery court, Randolph county; S. K. MCSPADDEN Chancellor.

The original bill in this case was filed on the 5th of May, 1880 by the appellant, Jesse M. Weaver, against Thomas N. Brown his wife and son, and sought to establish and enforce a vendor's lien on certain described land for unpaid purchase money therefor. Garrett Wilder was also made a party defendant to the bill, but he died before answer was made and the suit was abated as to him. The contract for the sale of the land was made on the 4th of April, 1866, and was consummated by the execution of a deed by the complainant to the said Thomas N. Brown, which recited the payment of $3,000 as its consideration, the payment of which was acknowledged but afterwards stated that "$1,000 of the consideration [was] unpaid." Brown conveyed to him (the complainant) a tract of land in Georgia, at an agreed price, and executed his two notes for the balance of the purchase money, each for $500. These notes were dated April 4, 1866, payable to "J. M. Weaver or bearer, by the 25th December, 1867," and 1868, respectively, and each recited that it was given for the payment of the land, describing it, "provided it is not canceled by the federal government." On the 22d February, 1879, the complainant recovered a judgment against Brown, on the note first falling due, for $864.66, a copy of which was made an exhibit to the bill, and it was alleged that the same was unpaid, and constituted a lien on the land. The other note was delivered to said Garrett Wilder, or he procured possession of it; and he obtained a judgment on it against Brown, on the 22d August, 1872, for $405.60, the balance then due. The land was sold, under an execution issued on this judgment, in February, 1873, and bought by said Wilder, at the price of $502.26, the amount due on said judgment; and the sheriff executed a conveyance to him as the purchaser, which was dated February 3, 1873. Wilder afterwards sold and conveyed parts of the land to Brown's wife and son, and they were in possession when the bill was filed, claiming under the conveyance from him, and also under a conveyance from said Brown himself.

The bill alleged that the several defendants, at the time they acquired an interest in the land, had notice, both actual and constructive, of the lien of the unpaid purchase money. The defendants filed a joint and several answer, in which they denied that they had any notice of an outstanding lien for unpaid purchase money; denied that the complainant had any lien, or that any of the purchase money was unpaid; denied that he had recovered a judgment against Brown, and required proof thereof. As to the note held by Wilder, they alleged that, at and before the consummation of the contract for the sale of the land, complainant was indebted to Wilder in the sum of about $650, and delivered said note to him, soon after it was executed to him, in part payment of said indebtedness; "that it was agreed that said note was and should be a lien on said lands, and said Wilder received it with this express agreement;" that complainant, "at and before the delivery of said note to said Wilder, assured him that it was a lien on said land, and that, the description of the land being in said note, the land was bound therefor; and said Wilder, relying on these representations as true, accepted said note in part payment of said debt." They also asked to set off against complainant's judgment, if anything should be found due him, certain cross-demands, particularly described, due from him to said Brown, at and before the commencement of this suit, and at the date of said judgment; and they prayed that their answer be taken and allowed as a cross-bill for this purpose.

The complainant answered the cross-bill, denying its allegations as to the transactions between him and Wilder, and alleged that Wilder obtained possession of the note by fraud; denied the validity of the cross-demands; and pleaded that they were barred by staleness and the statute of limitations; and he demurred to the cross-bill, and moved to dismiss it for the want of equity. The grounds of demurrer assigned were (1) that it was not alleged that the note was transferred to Wilder by written instrument; (2) that "a set-off cannot be relied on to defeat a suit for the enforcement of a vendor's lien;" (3) "that the judgment, upon which the original bill was founded, precludes an investigation into joint [cross] claims anterior to said judgment."

The complainant's deposition was taken in his own behalf, in which he stated the facts as alleged in his pleadings denying the transactions with Wilder; alleging that he obtained...