Carroll v. Shapard

STONE, C. J. Everything in this record — the pleadings, the documentary proofs, and the oral testimony — all concur in the assertion, that the lands in controversy were sold by Shapard to Carroll at the agreed price of eleven hundred dollars, divided into two payments. Not a word is anywhere said of a change or modification of the terms of sale, by which Carroll and Williamson were substituted as the purchasers; and, as evidence that this contract was never abandoned, Shapard accepted the two notes of Carroll, each for five hundred and fifty dollars, and still holds them. The present suit — an attempt to enforce a vendor’s lien' — is founded on these notes, and seeks to have the lands sold for their payment. It claims no greater sum than the two notes, and interest upon them. The bill avers, it is true, that Carroll sold a half interest in the lands to Williamson, and that he, Shapard, made title to Carroll and Williamson, conveying the lands to them. The price at which Carroll sold to Williamson is nowhere averred or shown. The averment of the bill bearing on this question is as follows: “And at the same date, the said O. A. Carroll sold one-half of the land to J. E. Williamson, and the said J. E. Williamson and C. A. Carroll made their promissory note, bearing date the 10th day of November, 1880, for the sum of twenty-one hundred and sixty dollars, due the 1st day [360] of January, 1882, for the same land ; which, it was understood by the said C. A. Carroll and your orator, was to be held by your orator as collateral security of said two first notes; and your orator gave to said Carroll a written statement to that effect.” That written statement is in the record, and is in the following language: “Received of O. A. Carroll one note of twenty-one hundred and sixty dollars, signed by himself and J. E. Williamson, as collateral security to secure two notes signed by himself; one for five hundred and fifty dollars, due January 1, 1881; and one for five hundred and fifty dollars, due January 1, 1882, with eight per cent, interest. If the last-named notes are paid at maturity, then I am to turn over the first-named note of twenty-one hundred and sixty dollars to said Carroll. If not, I am to sell the first-named note at best price I can, pay the two last notes out of proceeds, and turn balance over to said Carroll.” Signed, “W. B. Shapard.” All these writings — the deed from Shapard to Carroll and Williamson, the two notes made by Carroll individually, the note of Carroll and Williamson, and Shapard’s receipt and obligation copied above — bear the same date, November 10,1880, and appear to have been executed at one and the same time. The writings must all be construed together, as explanatory of, and constituting one transaction. Certain noteworthy features are observable: The two notes of Carroll are payable in installments, a year apart. Carroll and Williamson’s note is payable in solido, on the day Carroll’s last note matures. Shapard sold for eleven hundred dollars, and can and does claim only that sum. Williamson bought at we know not what price, but certainly at a considerable advance on Carroll’s purchase. This advanced price Shapard can not' and does not claim, for it was no part of the terms of his contract of sale. Shapard, in his agreement with Carroll, reserves the right, not to enforce the larger note against the land, but to sell the note, if Carroll made default in the payment of his notes; and he bound himself, in that event, to repay to Carroll any residuum that might be left over, after satisfying Carroll’s two notes of eleven hundred dollars. Both the averments and the proof in this case force us to the conclusion, that Carroll alone purchased from Shapard; and they repel all inference that the relation of vendor and purchaser ever did exist between Shapard and Williamson. The deed from Shapard to Williamson was a matter of conventional arrangement, to avoid circuity of conveyance, and can not change the stubborn facts, so prominently presented throughout this whole record. When Shapard sold, he conveyed the title, and took independent, outside security. This, prima faeie, was a waiver of all lien on the land for the purchase-money; and there is no361 testimony in this record to overturn the presumption.— Walker v. Carroll, 65 Ala. 61; Donegan v. Hentz, 70 Ala. 437. The decree of the chancellor is reversed, and a decree here rendered dismissing complainant’s bill. Let the costs of the suit, and the costs of the appeal, both in the court below and in this court, be paid by the appellee.