Johnson v. Durner

CLOPTON, J. -The bill, as originally framed, avers that the lands were sold and conveyed by appellees to appellant, for ten thousand dollars, one-half of which was paid in cash, and for the balance appellant gave six several promissory notes, payable to appellees, which are described by date, amount, and when payable. It was originally filed by Michael Durner, one of appellees, as sole complainant. Copies of two of the notes described in the bill were attached as exhibits, which, it is alleged, had been transferred to complainant for a valuable consideration. The amendment of the bill, by striking out this averment, adding the other appellee as co-complainant, and attaching copies of two other notes, the same having matured when the original bill was filed, did not constitute a new case, nor was it a radical [582] departure from the case made by the bill as originally framed. The subject-matter of the suit — the contract for the purchase of the lands — and the relief sought — the enforcement of the payment of the purchase-money — continued the same, and the same defenses are applicable.—Bolman v. Lohman, 74 Ala. 507; Pitts v. Powledge, 56 Ala. 147. Each of the notes contained a stipulation, by which the vendee promised to pay “all costs of collection and reasonable attorney’s fees in case of suit” on the note. This promise presents the only material question in the case. It is contended that complainants are not entitled to recover the attorney’s fees on a bill in equity to enforce a vendor’s lien for the purchase-money. It is true that the lien, which the vendor of lands making an absolute conveyance retains, is not created by express agreement for that purpose, and extends only to the unpaid purchase-money. The lien, independent of agreement other than the contract for the purchase, rests on the principle of equity, that it is unconscientious for the vendee to get and keep the land of the vendor without paying the agreed consideration money. The contract of purchase was, that defendant would pay the complainants the sum of ten thousand dollars, and, conditionally, the costs and -expense of a suit upon the notes; in other words, that defendant should pay, and the vendors should receive, the specified amount of the consideration price, without abatement or deduction of the costs and expenses which they would have to pay if the collection of the notes was enforced by suit. The promise was made to no attorney, nor other third person, but to complainants, the object being to reimburse them whatever sum they would have to pay their attorneys. A mortgage given to secure a note, containing a stipulation to pay attorney’s fees in the event of its foreclosure by suit, or o'f suit upon the note, is a valid security for the payment of such fees.—Munter v. Linn, 61 Ala. 506; Shelton v. Aultman, 82 Ala. 315. Had complainants brought an action at law upon the notes, which they had the right to do, reasonable attorney’s fees would have entered into and constituted an element of the recovery to which they would have been entitled; and subsequently they could have filed a bill to subject the lands to the satisfaction of the judgment so recovered. In Kelly v. Payne, 18 Ala. 371, it was held, that the land was equally bound in equity for the costs of a suit at law upon the purchase-money note, as for any other [583] portion of the judgment obtained in such suit. We can see no difference in principle between tbe liability of tbe land to tbe costs of the suit at law, and its liability for reasonable compensation to tbe attorney for bringing and conducting tbe suit, when there is a promise to pay tbe same. In sucb case, tbe attorney’s fees constitute a part of tbe debt wbicb the vendor is entitled to recover of tbe vendee. In equity, tbe promise to pay attorney’s fees, in tbe event of a suit to enforce tbe payment of tbe purchase-money, is a part of tbe consideration agreed to be paid for tbe lands, tbe payment of wbicb equity and good conscience require, and without tbe payment of wbicb tbe vendor does not receive tbe full consideration money agreed to be paid. Sucb promise constitutes a part of tbe consideration, on tbe same principle on wbicb a promise to pay, in addition to tbe amount specifically expressed in tbe conveyance, a debt of tbe vendor to a third person, constitutes a part of tbe price of tbe land. — Bunkley v. Lynch, 47 Ala. 210. It was in tbe power of defendant to avoid sucb conditional enlargement of tbe consideration, by a voluntary payment of tbe notes. There is no error in overruling tbe demurrer to tbe bill. Affirmed.