Bozeman v. Ivey

B. F. SAFFOLD, J. — The appellees, as indorsers of a promissory note made by D. W. Bozeman, in favor of J. N. Norris, filed the bill to enforce its payment against certain lands, which had passed by successive sales from Norris, through Trimble and Thornton, to Nathan Bozeman. N. •Bozeman paid his vendors, Thornton & Trimble, with the knowledge that Trimble yet owed Norris, and had received only a bond for titles. Trimble sold other lands to D. W. Bozeman, and they with Norris agreed between themselves that D. W. Bozeman should give his note to Norris for the amount due to him from Trimble, who was to be released. Norris was not to make titles until he was paid.. In pursuance of this agreement, the note in question was made. The complainants assert a vendor’s lien by virtue of it. The chancellor decreed accordingly, and directed the land to be sold for its payment. [78] The appellant defendants contend that the bill claims a lien by virtue only of the indorsed note. They say that as D. W. Bozeman, the maker thereof, never had any interest in the land, and Norris now has no debt against Trimble, the lien which once existed in his favor is lost; that the transfer of the note to the complainants conveyed no lien in their favor on this land. An amendment to the bill, which altered the numbers of the land described, was demurred to, on the ground that the original purpose was to subject the land sold by Trimble to D. W. Bozeman. This demurrer was properly overruled, because the recitals of the bill as originally drawn are not applicable to such a case. The rule of the vendor’s lien is, that it- exists unless a contrary intention is 'shown, and that it follows the debt until paid or extinguished, or the lien is released by the contract of the parties. What amounts to a payment is a question of law, dependent upon thfe facts and circumstances of the case. A note is evidence of a debt, but the debt exists independently of it. Foreman v. Hardwick, 10 Ala. 316. In Conner v. Banks, 18 Ala. 42, the lien was not considered lost, where the assignee of the original note gave it up to the maker, and ac-. cepted in lieu the individual note of a subsequent purchaser, notwithstanding the payment of the purchase money was postponed. In Bradford v. Harper (25 Ala. 337), the transferee of the note given for the land gave it to a third party, and accepted a bill of exchange on a stranger in lieu. It was held that if the party receiving it was not acting for the maker, nor had a.ny interest in the purchase, the lien would pass to him. But if he was acting in either capacity the lien would not be lost without an express agreement to that effect on the part of the transferee to receive the bill of exchange in absolute payment, and thereby to abandon the lien. He is remitted to his lien upon the original demand. See Keene v. Dufresne, 3 Serg. & Rawle, 233. These cases show how the lien adheres to the debt in favor of the creditor, and against the vendee in possession, with notice of its non-payment. If Nathan Bozeman cannot be injured by any contract of Norris with Trimble and D. W. Bozeman, to which he was not a party, neither can he claim any benefit from such contract against Norris, in violation of the express understanding and agreement of the latter to the contrary. The note in question is made by D. W. Bozeman, and promises to pay to Morris $4,000, the balance due on land sold by him to Trimble, and by the latter to Dr. N. Bozeman. D. W. Bozeman is admitted to have been the agent of his brother to procure title from Norris when Trimble’s debt was paid. Norris’s agreement was to release Trimble,, and to- ac [79] cept the note, retaining the title to the land sold by. him to secure its paynient. Whether Nathan Bozeman accepted or repudiated any interest in this contract, the right of Norris to subject the -land to the payment of its purchase money remained the same. This right he transferred to the complainants. It was not obligatory on the complainants to make Trimble a party defendant. The defence might have brought him in by cross-bill - if any advantage could have been gained by doing so. Batre v. Auze, 5 Ala. 173. The decree is affirmed.