Sykes v. Betts

CLOPTON, J. Wben this case was before tbe court at a former term, on appeal taken from a decree overruling a demurrer to tbe bill, we held tbat its averments were insufficient to bring the claim of complainant within tbe principle, on which rests tbe equitable doctrine of enforcing a vendor’s lien for tbe unpaid purchase-money of land. Tbe agreement between the parties was regarded in form a single contract, intended to make, without resort to administration, a full settlement and distribution of tbe estate of their intestate ancestor. Tbe decision was rested on tbe ground, tbat tbe contract and tbe allegations of tbe bill left in doubt and uncertainty whether Mrs. Betts’ promise to pay five hundred dollars was based solely on an agreed difference in tbe value of tbe lands, or whether some other consideration entered [541] into it. It was said: “To come within the principle, the debt must be contracted in the purchase of real estate, and no other consideration must, in the slightest degree, enter into it. If it be uncertain^ whether the debt sought to be collected rests alone for .its consideration on the lands on which the bill seeks to fasten the lien, or whether it rests on something else, or on the lands and something else, then the doctrine can not be applied for most obvious reasons.” 82 Ala. 378. After the remandment of the case, the bill was amended, a demurrer again interposed, and sustained. The present appeal is taken from the decree sustaining that demurrer. The amendment substantially alleges, that Mrs. Sykes parted with, and transferred to Mrs. Betts, an undivided interest in lands only; that the decedent owed no debts, and there were no charges against his estate at the time of his death, nor was there any personal property subject to distribution, except some choses in action, which were valueless; that the lands allotted and assigned to Mrs. Betts exceeded in value, by more than one thousand dollars, the lands allotted and assigned to Mrs. Sykes; and that the consideration of the promise to pay the five hundred dollars was the equalization of the division of the lands. Appellant insists that the principles announced in the opinion delivered on the former appeal, are only applicable to the lien of the vendor which equity creates after a conveyance is made, and not to the lien reserved by the contract, when the legal title is retained. The argument is, that there is a broad and plain distinction between the rights and interests of a vendor and vendee before and after conveyance. After conveyance, the lien of the vendor is a mere equitable charge, without any estate in the lands; and when no conveyance is made, the vendor retains the legal title, a more efficient security, of which he can not be divested, except by payment of the purchase-money, which the retention of the legal title was intended to secure. In other words, in the former case, the lien is a mere creation of equity; in the latter, a lien by contract. Our own decisions have recognized a marked distinction between the lien of a vendor after a conveyance, and the security carved out by the retention of the legal title, though each may be denominated a lien in the extended signification of the term. It has been repeatedly declared, that the essential incidents of a mort,gage attached to a contract for the sale of lands, when by its [542] terms the vendor retains the legal title as security for the price — such as a bond conditioned to make titles on payment of the purchase-money — and that such security is not impaired by taking personal security.—Chapman v. Chunn, 5 Ala. 397; Kelly v. Paine, 18 Ala. 371. In such case, the remedy may be regarded reciprocal. Generally, the vendor may maintain a bill to enforce his security, whenever the vendee, if he had paid the purchase-money, could maintain a bill for specific performance.—Hopper v. Hopper, 6 N. J. Eq. 147. It may be conceded, that whenever the vendor retains the legal title, the presumption is, that he retains it as security, unless such presumption is repelled by the terms and character of the contract, or by the circumstances. It is not conclusive. When, by the contract, no lien or security is carved out or reserved, either expressly or by implication, when it becomes a matter of presumption, whether or not the presumption arises before conveyance is made, depends on the same principles applicable after a conveyance is made. When there is a blending and commingling in the same note or contract of the aggregate price of real and personal property sold at the same time, and the agreed price of the real property can not be separated and definitely ascertained, by reference to either the writing, or extrinsic evidence, or both, the presumption of the retention of the equitable lien is rebutted. In Stringfellow v. Ivie, 73 Ala. 209, it is said: “When the considerations are blended and combined, and it is impossible, without resort to conjectural inquiries, to separate them, the presumption must be, that the vendor did not look to the lands for payment, but relied exclusively on the personal responsibility of the vendee.” The same rule applies, when, from the contract, it appears that there has been a sale of real and personal property for a sum in gross, though no conveyance is made. By the agreement between the parties, specified lands were allotted to Mrs. Betts, and she agreed to pay five hundred dollars,' while Mrs. Sykes was alloted other specified lands, and all other property of the estate, “ real, personal, mixed, and dioses in action,” and obligated herself to pay the debts. True, Mrs. Sykes transferred no personal property to Mrs. Betts, and there is not a blending of the aggregate price of real and personal property; but the principle is the same, whenever any consideration other than the purchase of lands enters into the debt, and no [543] data exist from which the particular price agreed to be paid for the land can be distinguished and ascertained. It is evident that the parties intended to make, and did make, a full settlement and division of the entire estate of theit deceased father between themselves, the only heirs and distributees. The agreement purports to be a full settlement, division and distribution of the entire estate in prcRsenti. As appears from its face, the consideration of Mrs. Betts’ promise to pay five hundred dollars is based on the estimated difference between the value of the portion of the estate allotted to her, and of the portion allotted to Mrs. Sykes, the latter reduced by the amount of the debts assumed to be paid; that is, it was estimated that five hundred dollars would equalize the benefits received and the burdens imposed upon the parties respectively. There is manifestly a blending of considerations, and the agreed value of the lands can not be separated and ascertained by reference to the contract. The presumption that the legal title was retained as security for the purchase-money of the lands, is repelled by the stipulations and character of the contract. Neither do the extrinsic facts alleged in the amendment of the bill remove the objections to which the claim asserted by complainant is otherwise obnoxious. To effectuate this, it is essential that the price agreed to be paid for the lands should have been fixed and agreed on in the making of the contract, and the relation of vendor and vendee established as matter of separate negotiation.—Alexander v. Hooks, 84 Ala. 605; Stringfellow v. Ivie, supra. The amendment fails to aver that, at the time of making and consummating the agreement, it was understood and agreed that there were no debts or charges against the estate, or that the personal property was valueless, or that one thousand dollars was the difference in the value of the lands. It is consistent with the allegations of the amendment, that the parties at the time regarded the personal property as of some value, and it subsequently proved to be worthless; and they may have believed that there were debts, and it was afterwards discovered there were none. The question is not, what were the facts as subsequently disclosed, but how did the parties consider and estimate the matters in making the settlement and division of the estate. Considering the frame of the bill, we regard the averment that the consideration of Mrs. Betts’ promise was the equalizing the division of the lands, as the mere conclusion of the pleader from the facts alleged. Affirmed.