Weaver v. Brown

SOMERVILLE, J. — 1. The transfer of the note to the defendant Wilder, by the complainant Weaver, having been effected by delivery merely, without indorsement — and prior to the statute authorizing a transfer of a vendor’s lien by mere delivery of purchase-money notes given for land (Code, 1886, § 1764) — the transferree did not acquire the vendor’s lien, nor any right to enforce it on the land in controversy. Prickett v. Sibert, 71 Ala. 194; Bankhead v. Owen, 60 Ala. 457; Hightower v. Rigsby, 56 Ala. 126. The title, therefore, which Wilder acquired at the sheriff’s sale, must be sustained, if at all, without regard to any lien which he was supposed to have on the land for his judgment debt against appellee Brown, based on the note for the purchase-money, transferred by delivery as above stated. Wilder’s title was that of an execution creditor buying at his own sale — his co-defendants claiming under him with notice of complainant’s equity. The bill alleges, and the testimony satisfactorily proves, that Wilder himself had full knowledge of the existence of the lien for unpaid purchase-money on the land claimed by the complainant. This lien was, therefore, superior to that of Wilder’s execution, and the chancellor erred in not giving it precedence. His decree dismissing complainant’s bill was erroneous, and will be reversed. 2. The defendants will be entitled to set off against complainant’s claim for unpaid purchase-money any legal demands against complainant which were owned by the judgment debtor, Thomas N. Brown, at the time the suit was brought, and upon which Brown could have instituted an action of debt, or indebitatus assumpsit, in his own name. It is no objection to such set-off, that the complainant’s demand is an equitable lien on the land, and enforceable as such. Hooper v. Armstroug, 69 Ala. 343; Gafford v. Proskauer, 59 Ala. 264. The second ground of demurrer to the defendant’s cross-bill, based on this suggestion, was properly overruled. 3. We construe the third ground of demurrer to mean, that no set-off can be introduced, which could have been made available at the time the judgment was rendered in favor of the complainant. This view of the law is incorrect, a set-off being a defense which may be made or not, at the option of the defendant. It is not compulsory on him to [537] make it, and the judgment does not preclude its future introduction.—Wharton v. King, 69 Ala. 365. 4. Such a set-off being maintainable in equity only by cross-bill, the refusal of the court to dismiss the cross-bill of defendants is free from error.—Beall v. McGehee, 57 Ala. 438; Chambers v. Wright, 52 Ala. 444. 5. The judgment in favor of the complainant against the defendant Brown, upon which this suit is based, is a judgment by default; and although it affirmatively shows no appearance on the part of the defendant, or his attorneys, it will be presumed, on collateral objection, that the Circuit Court, which rendered it, had proper jurisdiction of the defendant’s person, it being a court of general and not limited jurisdiction.—Pettus v. McClannahan, 52 Ala. 55; Hunt v. Ellison, 32 Ala. 173; 3 Brick. Dig. p. 587, §§ 5-6; Freeman on Judg. (3d Ed.), §§ 124-131. This judgment is clearly admissible in evidence in the present suit. Reversed and remanded.