Hammett v. Stricklin

HEAD, J. Bryant v. Stephens, 58 Ala. 636, declared the rule that a recital in a promissory note that it was given for [618] tbe purchase-money of land therein described, created conclusively, by contract, a charge on the land for the purchase-money, in the nature of an equitable mortgage ; but in the subsequent case of Tedder v. Steele, 70 Ala. 347, that doc-r trine was departed from, and subjected to modification, and the sounder and true principle was held to be that such a recital is merely a cogent fact indicating an intention not to waive or abandon the vendor’s lien, but to retain it; and it was held that the fact was so cogent and the presumption so strong as to overcome and rebut the weaker presumption of waiver arising from the taking of personal security on the note for the purchase-money. Grave doubts even of the correctness of the modified view were entertained by all tbe judges; but nevertheless it was so held, and has been recognized in a later decision of this court.—Chapman v. Peebles, 84 Ala. 283 The note, upon which the lien of a vendor is sought to be enforced in the present case, has upon it a personal surety, which fact evidences a waiver of the lien, unless that result is repelled by the recital found in the note in the following words : “.This note is given for part purchase-money of land this day purchased from George E. Stricklin and wife, and it is expressly understood that I shall have the right to pay off any lien that may .exist on said land which the said Stricklin may have failed to remove, and the amount so paid shall be a good off-set against this note.” We can not resist the conclusion that .the sole purpose of the insertion of this clause was to provide, by express agreement, for the right of the principal maker to pay off any lien which might exist on the land, and hold ■ the amount so paid as a set-off against the note. The recital that the note was given for the purchase-money of land was mere inducement to that agreement. No idea of the crear tion or retention of a security by wayof vendor’s lien is involved in such a provision as that contained, in the note. Security was otherwise provided, viz.: by requiring a personal surety. The clause having on its face so plain a purpose to be accomplished, it can not be said to have been inserted for any other purpose. We are of .opinion the chancellor erred in holding otherwise. There is nothing in the other ground of demurrer insisted on in the argument of appellant.—Ware v. Curry, 67 Ala. 274. Reversed and remanded.'