Napier v. Jones

PETEBS, J. As early as 1842, now thirty years ago, it was, in a well considered opinion of this court, declared that “it is well settled, both in England and the United States, that the vendor, in the absence of any agreement, to the contrary, retains a hen on the land he has sold and conveyed, for the unpaid purchase-money, and that this lien will be enforced against a subsequent purchaser with notice.” — Foster v. The Trustees of the Athenceum, 3 Ala. 302, 305. This just exposition of this important principle, has not been modified or abandoned. It was the law at the date of the sale involved in this case, and it governed the stipulations of this contract. The law of the contract enters into the contract itself, and in its construction forms a part of it. It may be said to be a dormant stipulation of the contract, and it must be enforced as a part of it, and as it is construed at the time of entering into it.— Gelpcke v. City of Dubuque, 1 Wall. 175. The lien thus created attaches as well in favor of an administrator or executor with power to sell as in favor of any other person.— Wood et al. v. Sullens, 44 Ala. R. 686. Whether this hen has been waived or abandoned depends, in each ease, upon the proofs. — Macreth v. Symmons, 15 Ves. Jur. 329; Newsome et al. v. Collins, 43 Ala. 656. Here, the evidence .very clearly shows that the hen was expressly reserved, and that the taking of the bond and security and the execution of the deed was not intended to release it. When this is so, the testimony of decided cases is overwhelming in favor of its continued existence.-4 Kent, 152, 153, marg.; Tiff & Bull, on Trusts and Trustees, pp. 84, 85, 86, (ed. 1862); 2 Story’s Eq. 1226; Frail v. Ellis, 17 Eng. L. & Eq. 457; 1 Parsons on Contr. p. 526, et seq.; 3 Sug. on Ven. p. 123, et seq., top page; Washb. on Real Estate, top page 90, et seq.; Ross v. Whitson et al., 6 Yerg. 50; Gaston v. Green et al., 1 John. Ch. 308; Campbell v. [97] Roach, 45 Ala. 666; Brooks v. Woods, 40 Ala. 538; and the numerous authorities collected in appellee’s brief. There was no other question argued at the bar or discussed in the brief of the learned counsel for the appellants in this appeal. When such is the case, general assignments of error will not be extended beyond the specific error pointed out and argued at the bar and in the brief of counsel. — Rule of Practice No. 1; Waller v. Shultzbacher & Paige, 38 Ala. 318. The decree of the court below is affirmed; and the appellants will pay the costs of this appeal in this court and in the court below.