Logwood v. Robertson

MANNING, J. Upon an examination of this record we find that the decree appealed from must be affirmed. Robertson, appellee’s intestate,in the transaction between him and Logwood, gave to the latter a bond to convey when the purchase-money should be all paid. The land was thus, by the express acts of the parties, charged with the payment of the price. And the fact that the title was not then per525 feet irr Bobertson, tbe vendor, did not hinder the contract from so operating. The interest which a purchaser of- land acquires, who has paid part of the purchase-money and taken a bond for title upon the payment of the residue, may be sold or mortgaged ; but the sub-purchaser or mortgagee will take it subject to the lien, (not merely “equitable” but legal lien) of the first vendor, who, for his security, has retained the legal title in himself. — Fenno v. Sayre & Converse, 3 Ala. 458. Whether it be true, as several witnesses testified, or not, that Bobertson told Logwood at the time of their bargaining, that the last installment of the price the former owed to the estate of Hine was due and not yet paid, is a matter of no consequence. Any question that might have arisen out of that fact, was disposed of by what was done subsequently to Logwood’s being informed of it. Logwood had the right to pay the residue of the purchase-money due from Bobertson to Hine’s estate, as an incumbrance on the land, out of the cash installment of the price Logwood was to pay Bobertson, and to be credited thereon with the amount so paid— and Logwood did make that payment, and was credited with it by the extinguishment of so much of his debt to Bobertson. But here a contention arises. By the payment to Hine’s administrator, which Robertson insists was made by his request and instruction, he, according to the terms of Hine’s bond to him, became entitled to a conveyance of the land to himself; and the administrator, upon an order to that effect of the Probate Court, duly obtained, could have made such conveyance. An order was, in fact, obtained by the administrator, and a conveyance of the land made ; but the order or decree was rendered in favor of — and the conveyance made to — the wife of Logwood, instead of Robertson. This was done by the procurement of Logwood, to whom Robertson gave Hine’s title-bond with his, Robertson’s name, indorsed on it, for the purpose, as he says, of handing it to the administrator, that he might take the steps proper for the purpose, and convey the land to him, Robertson. Logwood, on the contrary, says that on learning that Robertson had not a perfect title — he insisted that the contract between them should be rescinded, and that to prevent this, Robertson and wife transferred Hine’s title-bond to Mrs. Logwood and authorized the conveyance of tbe land to be made to her — agreeing at the same time that it should go to her discharged from any lien or liability for the payment of the remaining two-thirds, or $6,000 of the price, and that he Would rely for this upon Logwood alone and the notes he had given [526] therefor. This was denied by Robertson. Logwood had no visible property at the time, is not shown to have been then responsible, and was certainly insolvent and much in debt not long afterwards. We have attentively examined the numerous depositions on the subject and cannot perceive that the Chancellor erred in deciding the controversy in favor of appellee. Moreover, appellants fail in their endeavor to show that the payment made by Logwood for the land, was made with moneys of the separate estate of his wife. The evidence of this is very unsatisfactory and weak, imputing to her moneys belonging to himself — and the profits made by his own exertions and skill, without any deduction. for the support of the family. Indeed, we think it appears that whatever interest Mrs. Logwood acquired, was obtained by an instrument that must be regarded as merely voluntary on the part of her husband, that is, as having been procured by him from the administrator of Hine, without any consideration for it proceeding from Mrs. Logwood or her separate estate. The case is, therefore, almost exactly parallel with that of Pylant v. Reeves, (53 Ala. 131), in which we said; “As the land would have been indisputably bound for the purchase-money, if the conveyance had been made directly to the husband, and he, on a merely good consideration, had made the conveyance to a trustee for the use of his wife, it is equally bound under the conveyance the vendor made at the request of _ the husband.” “The vendor’s lien” (it was added) “prevails with as much force against a married woman purchasing land as against one fully sui juris. Her disabilities may protect her, but they can never authorize her to take and hold the lands of another without paying for them.” — See Perkins v. Gibson, 51 Miss. 699. Let the decree of the Chancellor be affirmed.