Gordon & Stokes v. Bell

PETERS, C. J. The purchaser of lands in this State, if the same are not paid for at the sale, holds them in trust for the vendor, until the purchase-money is paid; unless it is otherwise agreed between the parties at the time of the purchase. This is called the vendor’s lien. Napier v. Jones, 47 Ala. 90; Campbell v. Roach, 45 Ala. 666; Woods v. Sullens, 44 Ala. 686; Latham v. Staples, 46 Ala. 462. All persons who deal with lands so situated, with notice of this lien, are affected by it; and this lien, with notice of its existence, will prevail over any subsequent title acquired to the same lands, except by decree of some court where the lien itself has been litigated. Bulger v. Holly, 47 Ala. 453; Bunkley v. Lynch, 47 Ala. 210; Sampley v. Watson, 43 Ala. 377; and cases supra. It follows from this, that the complainants in this case are entitled to a decree of foreclosure against the lands described in their bill, that is, the “ Clendenin place,” containing 189.2 acres, if the claim of the defendant Oates .is not to be preferred to their lien. The answer of Oates sets up two grounds, upon each of which, if true, he rests his protection against the complainants’ lien. The first ground stands upon the mortgage, made an “ Exhibit ” to the answer; and the other stands upon the sheriff’s deed, which is also an “ Exhibit ” to the answer. Oates offered no evidence except the answer itself and the “Exhibits” annexed thereto. The answer is only evidence when it is responsive to the allegations of the bill. 1 Brick. Dig. p. 738, §§ 1466, 1467. The allegations of the bill touching the mortgage, in this case, are quite indefinite. But the [219] interrogatories founded upon them in the foot-note are more pertinent and particular. Generally, the interrogatories should have direct reference to the charges in the bill. If they fail in this, the defendant is not bound to answer them. Story’s Eq. PI. §§ 36, 37, 38; also, Rules Ch. Pr. 11,12,13. In this case, the defendant Oates fully answers all the charges in the bill and the interrogatories in the foot-note in reference to the mortgage; and he sets out the mortgage itself, as an “ Exhibit.” The exhibits to the answer become a part of The bill, and need no proof. Rules Ch. Pr. 17, 62. The mere fact that it is .an “ Exhibit ” proves it, if it is not otherwise impeached, or disproved by evidence taken in the cause. 20 Ala. 200; 23 Ala. 762. And in this way, the mortgage becomes, in effect, a witness in the cause.' Then, in this case,. the mortgage shows that there was a large amount of property, real and personal, conveyed by Bell to the defendant Oates on June 7, 1870, in order to indemnify the latter against losses on certain liabilities, which he had undertaken for Bell. It is possible, also, that this conveyance was also an assignment of all Bell’s estate, such as would enure to the benefit of all his creditors. Rev. Code, § 1867. But no question of this kind is raised by the bill, and it need not therefore be discussed. In the answer it is not shown that any loss accrued to Oates on account of the guaranty of the payment of the judgment against Bell in favor of Abbot: if, indeed, this guaranty was such as could have been enforced. See Rigby v. Norwood, 34 Ala. 121. This liability provided for in the mortgage will be left without further notice. 2. Under the -mortgage, Oates was clothed with the power to interpose for the purpose of preventing a waste of the property therein conveyed, so as to protect, himself from irreparable loss. 1 Brick. Dig. p. 684, § 650; Walker v. Miller, 11 Ala. 1067. He could have prevented the removal of the personal property from the State; and if he stood still, and permitted its removal, when he could have prevented it, it was his own fault, and he must suffer the consequences. He does not "pretend that the property conveyed in the mortgage, besides the “ Clendenin place,” on which the complainants assert their claim of lien, was insufficient for his indemnity. He permitted its waste and removal from the State, all save the lands, without any effort to prevent it. His answer, that he did not know or consent to the removal of the personal property, and the collection and waste of the notes and claims by Bell, is not enough to free him from the responsibility of the loss thus accruing, and impose it upon the shoulders of the complainants, who had no power to help themselves. He should have shown, that he used reasonable diligence to exert his powers [220] over tbe mortgaged property to prevent such, results, and that his efforts were unavailing. His answer is not sufficient to show that he was not in fault. The exhibit to the account of Bell’s final settlement appended to the answer shows that Bell had not left this State up to March 18, 1871, the day bn which his account was sworn to before the judge of probate ; and that account shows, or should show, the liabilities that then existed against the defendant Bell, and also against Oates, as his surety. The mortgagee was then put on his guard, as to the danger of further delay in securing the means for his indemnity under the mortgage. But it does not appear that anything was done at that, or any other time, to prevent the misapplication of the mortgaged property. It is a well-settled principle in equity, if a party has two funds to which he may resort for payment, he will be compelled, in favor of a creditor having a junior lien, to resort to the fund not bound by the junior lien. Nelson v. Dunn, 15 Ala. 501; Chapman v. Hamilton, 19 Ala. 121; also, Relf v. Bibb, 43 Ala. 519. He should show that the funds provided for his security and indemnity have not been wasted by his negligence. Henderson v. Huey, 45 Ala. 275. In this case, the mortgagee should be confined to the lands and personal property conveyed in his mortgage, without embracing the lands described in the complainants’ bill. Besides this, the answer does not show that there was any decree, on his final settlement, against Bell, which he had failed to pay, except, perhaps, for costs; and if there had been any failure to pay the costs in the probate court, the remedy provided by the mortgage was a sale under the mortgage. At this sale the complainants could have had the lands not held under their lien first sold. Relf v. Bibb, 43 Ala. 519, supra. Opportunity would thus have been afforded the complainants to force the lands conveyed in the mortgage to sell for such a price as would have discharged the mortgage liabilities. Owens testifies, that the lands were worth $1,500 ; yet, as the mortgage liability was settled, putting it at the figures stated in the answer, they are sought to be held by Oates under the mortgage, without sale or foreclosure, at the sum of $528, a little above one third of their “ cash value,” as Owens testifies. The claim thus presented under the mortgage, by the défendant Oates, is not sufficient to bar the complainants’ right of foreclosure under their lien, asserted in their bill. 3. I turn now to the claim of the defendant Oates, under the sheriff’s deed. The title thus asserted is not responsive to any allegation in the bill. It is altogether new matter in defence, which is not mentioned in the bill, and which the defendants are not called upon to answer, and about which the bill does [221] not seek to elicit any discovery, Such allegations, not being responsive to some allegation of the bill, must be supported by proof outside of the answer itself, or they fail for want of proof. Cummings et al. v. McCullough, 5 Ala. 324; Manning v. Manning, 8 Ala. 138. 4. There is no proof of these allegations but the sheriff’s deed, which, being an exhibit to the answer, is to be taken as true until impeached. Rules of Ch. Pr. 17 ; 23 Ala. 346, 762; 20 Ala. 200. But a sheriff’s deed is not, alone, sufficient to prove a title under a sheriff’s sale. For this purpose, the proofs must show a judgment, execution thereon, levy, and Che sheriff’s deed. Ware v. Bradford, 2 Ala. 676. There was no proof offered by the defendant Oates of any judgment, or any levy; and there was no proof that the plaintiffs in the judgments recited in the sheriff’s deed did not'have notice of the complainants’ lien. Oates himself, and these plaintiffs, were all competent witnesses. Rev. Code, § 2704. The mere averment of these facts in the answer is not enough to prove them. They are not responsive allegations, and they must be established by other evidence than the answer. 5 Ala. 324; 8 Ala. 138, supra. The title under the sheriff’s deed is not proven, and it must fail. The judgment of the court below must therefore be reversed, at the costs of said appellees, Bell and Oates. The judgment of the court below is reversed, and the cause is remanded to the court below for further proceedings according to law. Bell and Oates will pay the costs of this appeal, in this court and the court below.