Owen v. Bankhead

SOMERVILLE, J. — It is not contended that a vendor’s lien on the land in controversy did not exist in favor of Mayes, the original owner, after the sale made by him to Garth, on the 3d December, 1859. This lien certainly existed without any specific agreement, as an incident to the contract of sale, and was enforceable, not only against the vendee, but all others who were not purchasers for value without notice, unless it had in some way been lost by waiver or abandonment. It is our opinion that this lien was not waived, or abandoned, by the unsuccessful attempt to enforce it in the chancery suit commenced in April, 1867. The legal title of the land was at this time vested in the heirs of George M. Garth, the vendee, he having died since the sale. By some oversight, or otherwise, they were not made parties to this proceeding. The only parties defendant were the widow of Garth, who was also his personal representative, and one Isaac Owen, who was assignee of one of the notes for the purchase-money. The legal title of the land, therefore, was not before the court, no one being made a party who had any ownership in it. The widow’s only interest was a right of dower, which, without actual assignment, was no estate in the land, either legal or equitable, but a mere right action, not the subject either of sale or transfer, but only of release to the terre-tenant by way of extinguishment. — Saltmarsh v. Smith, 32 Ala. 404 ; 1 Brick. Dig. p. 615, § 42. The decree of the Chancery Court, seeking to condemn the land to the payment of the purchase-money, was, for this reason, unavailing. It reached no interest in the land which was the sub [148] ject of condemnation or sale. When Mayes purchased under the decree, therefore, he obtained no title to this land whatever. The whole proceeding was entirely void as against the heirs, who were no parties to it in any way. As to them, the attempted condemnation, sale and purchase of the lands, were as if they had never been — an absolute legal nullity. — Hunt v. Acre, 28 Ala. 580. The whole question of waiver is one of fact, or legal intention deducible from ascertained facts ; and if this intention remains in doubt, the vendor’s lien must be held to attach. — 2 Story’s Eq. § 1224; Tedder v. Steele, 70 Ala. 347. We can perceive no reason why the inadvertent omission of material parties to a suit, who are the exclusive owners of the title of land sought to be subjected, should be construed into an intentional waiver of a valuable right against .them, when the proceeding does not bind them, and is as to them a nullity. It does not present the case of an attempt to subject a fractional part of the entire land. It is an abortive attempt to subject the whole, rendered unsuccessful by a mistaken omission of necessary parties. The note having been reduced to judgment, by the rendition of the decree in favor of Mayes against the administrator of Garth, it was legally merged in said judgment; and the filing, therefore, of a transcript of the judgment against Garth’s insolvent estate, was clearly sufficient. The record shows that this was done within the time required by statute. — Thornton v. Moore, 61 Ala. 347. There does not seem to us to be any misjoinder of parties complainant to the present bilí, as the chancellor has adjudged to exist in his opinion and decree. The two parties who unite as complainants are Shackelford, the administrator of Mayes, and Mrs. Martha Owen, who purchased these lands from Mayes in his life-time by a deed warranting the title. The legal effect of this conveyance was to pass to Mrs. Owen, as vendee, not only any interest which the vendor had at that time in the lands, but also any title which he might afterwards acquire, whether by enforcement of his vendor’s lien in the suit or otherwise. Chapman v. Abrahams, 61 Ala. 108. It is shown by the record that Mrs. Owen had been ejected from these lands by the heirs of Garth, in an action at law. This was a breach of the warranty, operating to create a liability upon Mayes and his administrator. The vendor, therefore, had an interest in the enforcement of a lien, which was superior to the title of the heirs, and his estate might sustain injury if it remained unpaid. The liability over, created by the warranty, is held to be the vital principle which preserves from forfeiture a vendor’s lien, where a note for the purchase-money of land has been assigned by indorsement by the holder, and through which is worked out [149] the equity of the assignee’s subrogation to the original rights of the assignor. — -Preston i& Go. v. Ellington, 74 Ala. 133. The legal title of the decree, or the note, as we may choose to consider it in reference to the heirs, is in Shackelford, as administrator, but the fruits of the vendor’s lien enure to the benefit of his^co-complainant, Mrs. Owen. The practice, in such cases, is to allow a joinder of the trustee of the legal title and the beneficiary as co-complainants in the same suit, where there is no conflict between their interests. — Gunter v. Williams, 40 Ala. 561; Sawyer v. Baker, 72 Ala. 49 ; Pitts v. Powledge, 56 Ala. 147; Blevins v. Buck, 26 Ala. 292. The decree is reversed, and the cause remanded, that a decree may be rendered in accordance with the principles announced in this opinion. Ouopton, J. not sitting, having been of counsel.