Simpson v. McAllister

BBICKELL, C. <J. [After stating the facts as above.] — The evidence is clear the transaction between Smith and Simpson was a sale of the lands, for their full value; and that the note, on which McAllister obtained the decree, was given for a part of the purchase-money. It was assigned by Simpson, before maturity, to Simpson, McAllister & Go., for a valuable consideration, the payment of a debt due from him to them> H is the settled law of this State, that a vendor of 232 real estate, in tbe absence of an agreement to the contrary, retains a lien for the payment of the purchase-money, though he may execute an absolute conveyance to the vendee.— Foster v. Trustees of Athenœum, 3 Ala. 302. An assignment of the notes given for the purchase-money, which is not without recourse on the vendor, carries with it the lien; and the assignee may enforce it, as he could enforce a mortgage, or other security for a debt, taken and held by th.6 assignor.— Wells v. Morrow, 38 Ala. 125. Where a conveyance of the legal estate is made by the vendor, the vendee is regarded as a trustee for the vendor — as holding the estate, clothed with a trust for the payment of the purchase-money. ' The trust follows the estate — is attached to it, if it devolves on heirs or devisees, or voluntary donees, or any other than a subsequent bona fide purchaser, for a valuable consideration, without notice. To the creation of the lien, no express or specific agreement between vendor and vendee is essential. It stands independent of any such agreement, express or implied, on a broad principle of equity, that one man ought not in good conscience to get and keep the estate of another, without paying the consideration money. — 2 Story’s Eq. §§ 1219-20. The lien existing generally, and resting on this principle, on those who resist it is cast the burthen of proving that “it has been intentionally displaced, or waited by the consent of the parties. If, under all the circumstances, it remains in doubt, then the lien attaches.” — 2 Story’s Eq. § 1224. The facts on which the appellant relies,- to repel the existence of the lien in this case, are, that the vendor made the sale, and the vendee bought, with the sole purpose of an advancement to her, so that a home could be secured to her and her children. With this purpose, it is supposed, the retention of the lien is inconsistent.' If it could be admitted these facts are fully proved, it would be difficult to infer from them a waiver or abandonment by the vendor of the lien given him for the payment of the purchase-money. It was not the intention of the parties, that he should make a donation to the vendee, or, through him, to the appellant. All that was expected of him, was the sale of the lands to the father, that he might be enabled to advance the appellant. Payment, and full payment of the purchase-money, it was contemplated the vendee should make; and no other relation existed, or was intended as between them, but that of vendor and vendee. Payment, or security of payment of the purchase-money, is not only consistent with the intention of the parties, but is indispensable to its just and equitable execution. On any other hypothesis, the vendor would be con 233 verted into the donor, whose bounty it was expected the appellant would receive. The hen for the purchase-money passed to Simpson, Mc-Allister & Co., on the assignment of the note to them.. It was properly enforced by the appellee, as their survivor. The only right the appellant could possibly assert against them, would be a redemption of the land by the payment of the note; and this right is not claimed by her bill. She has no equity or right, in any aspect of the case, which could prevail against the vendor’s lien. This view is decisive against her, and the decree of the chancellor must be affirmed.