Robinson v. Shearer

THOMAS, J. The bill by the purchaser of land, in the actual and peaceable possession of the same, was to remove cloud from the title, and to discharge the balance due on the purchase price to the rightful owner thereof. Decrees pro confesso were taken against certain of respondents, and answers and cross-bills were filed by J. C. Inzer and Mrs. Shearer, asserting superior liens of their respective judgments against the grantor, Shearer. The testimony was oral and taken before the register. Due submission for final decree was had upon pleadings, decrees pro confesso, and objections to testimony, and on the testimony specifically indicated, and complainant was denied relief, and there were decrees in favor of Inzer and Mrs. Shearer on their respective cross-bills. The objections and exceptions of complainant to the testimony of Inzer, detailing conversations with the grantor, Shearer, in the absence of complainant, were sustained by the court. ' The fact that witness had a conversation with Shearer at the time indicated, was exhibited the purchase-money notes, and that they were not then theretofore indorsed as indicated at the trial, was material and competent evidence against complainant offering said notes as marked ‘Paid’ on the dates indicated thereon. The other objections to testimony appear not to have been ruled on, or insisted upon. Georgia Cotton Co. v. Lee, 196 Ala. 599, 72 South. 158. We have carefully examined the evidence, and are of opinion that complainant had not paid his notes (indicated in the decree) to Shearer for the purchase money of the land at the time the lien of executions or judgments of Inzer and Mrs./Shearer attached. The liens of judgment or execution creditors were superior and attached to the lands before payment by complainant of the four notes in question; and it is clear that complainant had notice or knowledge of the said liens before the four notes (aggregating $1,-596.97) were paid. As to the nature of the possession taken by the purchaser thereunder, no distinction is made between executóry contracts for the sale of lands and bonds for title — the possession taken by the vendee under a bond for title to land is not adverse to his vendor. Sellers v. Hayes, 17 Ala. 749; McQueen v. Ivey, 36 Ala. 308; Ormond v. Martin, 37 Ala. 598; Harrison v. Sollie, 206 Ala. 284, 89 South. 562; 1 L. R. A. 1333, note. The judgment having been duly recorded in the county where the lands lay, be *18 came a lien on all property of defendant in judgment, S. D. Sliearer, subject to execution. In this case the legal title to the land was in defendant and subject to execution and enforceable in equity to the extent indicated in the decree. Pertinent authorities are section 4157 of the Code; Sellers v. Hayes, 17 Ala. 749; Jefferson County Savings Bank v. Barbour, 191 Ala. 238, 68 South. 43; Crawford, etc., Co. v. Anderton, 179 Ala. 573, 60 South. 874; Manchuria, etc., Co. v. Donald & Co., 200 Ala. 638, 77. South. 12; Rankin v. Dean, 157 Ala. 490, 47 South. 1015; Bernstein v. Humes, 71 Ala. 266. See, also, 23 Cyc. 1373; 27 R. C. L. p. 474, §§ 189, 190. The amounts due on the judgments to In-zer and to Mrs. Shearer are in excess of the sum of the balance of purchase money due on the land. The judgment liens will not be enforced in equity for a greater amount, and the said judgment liens were properly declared by the decree enforceable for the amount of $1,596.97, to be apportioned according to the amounts of the respective indebtedness of Shearer (to Inzer and to Mrs. Shearer) evidenced by their separate judgments. The note of Shearer to Williams, not having been paid, is a lien on the land for the amount so evidenced and due or to become due, which is superior to the respective liens of Inzer and Mrs. Shearer. The decree of the circuit court, in equity, is affirmed. Affirmed. ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.