Barnett v. Riser's Executors

BRICKELL, C. J. In Hightower v. Rigsby, 56 Ala. 126, and in Bankhead v. Owen, 60 Ala. 457, it was decided, after much consideration of the question, that the equitable lien of a vendor of lands, for the payment of the purchase-money, did not pass by a transfer of the note, which did not involve the vendor in liability for its ultimate payment, and which, in effect, operated, so far as he was concerned, and secured to him all the benefits of a payment. The bills, in those cases, affirmatively disclosed that such was the character of the transfer of the notes; and its operation to pass the lien was a question raised and decided in the Court of Chancery. In this case, it does not affirmatively appear that such was the character of the transfer, nor does it appear that, in the Court of Chancery, the sufficiency of the transfer to .pass the lien was controverted. It is a very general rule in appellate courts, which this court has observed very closely, that questions not made and decided in the primary courts, will not avail on error to reverse a judgment or decree, unless it be a want of jurisdic 349 tion apparent on the face of the proceedings. — 1 Brick. Dig. § 31, 776. The rule is conservative, and essential to prevent parties from being surprised by objections "which, if it was not intended to waive, ought to have been made in the course of the proceedings, and before judgment or decree in the primary court; and which, if there made, would often be obviated. This bill avers that the complainant had purchased the notes of the vendor. The averment may be objectionable, for generality; but that objection was not made in the court below. If it had been, and the objection now made, that the transfer of the notes was without recourse on the vendor, we cannot say that, by an amendment disclosing the character of the transfer, the objections would not have been removed. Judgments or decrees are of too much value, and of too great dignity, to be reversed on error for. objections of this kind, not made in the primary courts, and which parties not making must be presumed to waive. Affirmed.