Roper v. McCook & Robertson's Adm'r

COLLIER, C. J. — We have repeatedly held that where a note or other equivalent evidence of debt is transferred, either by indorsement or delivery, if secured by a mortgage, the mortgage as an incident will pass to the assignee, and he will be authorized to pursue any equitable remedy that the mortgagee could, while he was the proprietor of the paper. [Doe ex dem Duval’sheirs v. McLoskey, 1 Ala. Rep. N. S. 708; Emanuel & Gaines v. Hunt, 2 Id. 190.] In Haley et al v. Bennett, 5 Porter’s Rep. 452, the vendor of land executed a writing to [322] his vendee, by which he undertook to make him a deed to the land sold, whenever he should be paid the purchase money therefor. We said, “The particular form of the contract cannot be considered as material. It is to all intents and purposes in the nature of a mortgage, all the equitable incidents of one must attach to the contract.” Further, the lien of the vendor for the purchase money may be enforced not only against the vendee, but his assignee, with notice; and this although the vendor may have conveyed the title in due form. To authorize the assertion of the lien in equity against a derivative purchaser, it is not necessary that the vendors should have employed a legal remedy without success. [See Haley v. Bennett, supra; Foster v. The Trustees of the Athenæum, 3 Ala. Rep. 302.] In Hall’s Ex’rs v. Click et al, 5 Ala. Rep. 303, it appeared that the vendor transferred, by delivery, a note which he had received in part for the purchase money, “without recourse on him for its payment.” We held that as the note was passed off under an agreement that the vendor should not be looked to for its ultimate payment, the equitable lien did not follow the transfer, and a bill brought by the assignee was consequently dismissed. It was supposed, that the “ effect and operation of the agreement produced an extinguishment of the vendor’s lien, because so far as he was concerned, it amounted to a payment and satisfaction of his claim. The lien was intended to secure the purchase money to the vendor, and the assignment of the notes without responsibility for their ultimate payment, it is presumed, is equally as beneficial to him as if he had received the amount of them in money.” The case last cited, we think, is not only unlike that now under consideration, in its facts, but its determination was influenced by a different principle. There, we have seen, the lien did not pass to the assignee of the note; here, the bill affirms that it was indorsed, and the vendor became liable to pay it to the indorsee, if the latter would pursue his remedy against the vendee with the diligence required by the statute; or his liability perhaps may be considered a consequence of his indorsement, which will be discharged by the indorsee’s neglect. However it may be considered, the legal effect is the same, and will transfer the equitable lien of the vendor, as an incident to [323] the note. We are aware that there are some adjudications which' strongly intimate that the reverse is the law, (see them cited in Hall’s Ex’rs v. Click et al, supra, ) but the reasoning on which they rest is by no means satisfactory, and they lead to consequences which should be avoided. Assuming, then, that the assignee of a note given in payment of the purchase money of land, is substituted to the equitable lien of the vendor, where there is no agreement modifying the effect of a general assignment, and the next inquiry is, does the indorsee lose the benefit of this lien, if he neglects to proceed against the maker with promptness. In the case of a mortgage it is said that a mortgagee has three remedies, either of which he is at liberty to pursue, and all of which he may pursue until his debt is satisfied. I. He may bring an action at law to recover the debt. 2. He may- bring ejectment or trespass to recover possession of the mortgaged premises; and, 3. He may foreclose the mortgagor’s equity of redemption, and sell the land to satisfy the debt. And if-the mortgagee or his assignee have lost the remedy at law to recover the debt, either by the failure to present it in due time, to the representative of a deceased motgagor, or the operation of the statute of limitations, still it is competent to go into equity and obtain a foreclosure of the mortgage. [Doe ex dem Duval’s heirs v. Mc-Loskey, 1 Ala. Rep. 708; Inge et al v. Boardman, 2 Ala. Rep. 331.] If the equitable lien of the vendor may be assimilated to a mortgage, as is strongly intimated in the case cited from 5th Porter, then the right to enforce it would survive the remedy by action at law upon the note. And if the vendor mayr thus proceed to collect the purchase money without reference to his legal remedy against his vendee, why is not his assignee entitled to equal favor. Here it is supposed, that the plaintiff has only lost his recourse upon the indorser’s estate, while the liability of the maker (the vendor) is unquestioned, and in fact has been tested by a judgment against him. We cannot think that under these circumstances the plaintiff has no claims to equitable relief. Such a conclusion would make the passiveness of a party prejudice his rights, when there was no positive law declaring that such should be its effect; and when too the indorser by a voluntary payment might again become the [324] proprietor of the note, and assert the lien in his own name. Besides, if the assignee was placed in a condition in which he had no available legal remedy against the indorser, or the maker of the note, the latter might hold the land without paying any thing for it; a result which should certainly be prevented. It has been so often determined, that it may now be considered a settled rule of law, that to entitle the judgment creditor to go into Chancery to subject the equitable estate of his debt- or to the satisfaction of the judgment, (if he has no lien,) he must exhaust his legal remedy, viz: should cause execution to be issued and returned “ no property found.” And the bill should specifically alledge the fact. [Brinkerhoff v. Brown, 4 Johns. Ch. Rep. 671; Rhodes v. Cousins, 6 Rand. Rep. 188 ; Hendricks v. Robinson, 2 Johns, Ch. Rep. 283 ; McDermott v. Strong, 4 Id.; Hadden v. Spader, 20 Johns. Rep. 554; Corning v. White, 2 Paige’s Rep. 567; Eager v. Price, Id. 333; Clarkson v. De Peyster, 3 Id. 320; McKinley v. Combs, 1 Monr. Rep. 106 ; Allen v. Camp, Id. 231; Halbert v. Grant, 4 Id. 580; Scott v. McMillan, 1 Litt. Rep. 302 ; Screven v. Bostwick, 2 McC. Rep. 410; Perry v. Nixon, 1 Hill’s Ch. Rep. 335; Cloud v. Hamilton, 3 Yerg. Rep. 81; Moore v. Young, 1 Dana Rep. 516 ; Child v. Brace, 4 Paige’s Rep. 309; Weed v. Pierce, 9 Cow. Rep. 722.] The allegation of the bill upon this point is defective, but the view taken of the first question is decisive of the case, and the consequence is, that the decree of the Court of Chancerv is reversed and the cause remanded.