Hood v. Hammond

HARALSON, J. 1. The defendant admits in his brief that complainant is entitled to a vendor’s lien, to secure the original purchase money notes; but he contends that he waived this, lien in accepting the $3,000 note of Henley and associates as collateral security to said original notes. Whether this contention is correct or not must depend on the intention of the parties in the transaction between them. “A specific intention to reserve a vendor’s lien, at the time the contract is made, is not necessary to its existence; it arises by implication, as an incident to the contract, unless there is -satisfactory evidence of a purpose to exclude it. — Carver v. Eads, 65 Ala. 190; Sims v. Nat. C. Bank, 73 Ala. 248. The lien exists independent of any such agreement, upon the equitable principle, that in good conscience, one man ought not to buy and retain the lands of another, without paying the consideration money for which they were sold; and, whoever resists the enforcement of the. lien, assumes the burden of showing that it has been intentionally -displaced or waived by the, consent of parties.” If under all the evidence that question remains in doubt, the lien attaches. — Wilkinson v. May, 69 Ala. 33; Jones on Liens, § 1064. The fact that the notes recited that their consideration was the -sale of land, and that the deed, the -same day executed, describes the notes so taken as ‘a consideration for the sale of the lands conveyed, evidence an intention of the parties, that a vendor’s lien should be retained, even in cases where collateral security had at -the time been given. — Tedder v. Steele, 70 Ala. 347. There is nothing in the fact, that after Stewart sold lands on which the lien existed, he voluntarily transferred to complainant as collateral to his own notes, this $3,000 note of his vendees, to show that -complainant, in ac [577] cepting the same for the purposes intended, waived his vendor’s lien. Such transfer tended to show, that Stewart intended thereby to place said note where it properly belonged, — in the hands of him 'who held a prior lien on the lands, and to allow his said vendees to pay said note to complainant, and thereby, to that extent, discharge the lien on the property they had purchased, strengthening, that far, and entirely, if sufficient to pay what should remain due on his notes, the integrity of ¡their title to the same. It will not be presumed from the mere acceptance of said note as collateral to his debt, that complainant intended to waive his lien, as he had an agreement with Stewart, how his lien might be waived, which agreement the transfer of this note did not in any wise impair. — Tedder v. Steele, 70 Ala. supra. It is not pretended that the. $3,000 note was not a lien on the land sold 'by Stewart to Henley and associates. That fact is admitted by defendant’s counsel. The complainant, by its transfer to him, it is very clear, became entitled to the same rights to enforce the vendor’s lien, on the lands for which it was given, for the payment of the same, that Stewart had. — 3 Brick. Dig. 615, § 88. 2. Stewart’s estate was declared insolvent, and more than nine months had passed, since the declaration of insolvency, before the present Dill was filed. Defendant insists, that complainant failed to file the said original purchase money notes within nine months after the declaration of insolvency of said estate, and that such failure. destroyed them as claims against the estate; that the vendor’s lien on the lands for which they were given, was thereby destroyed, and that the $3,000 note held by complainant as collateral security for their payment, reverted to, and became the property of defendant. But this contention is untenable. If it be true that these notes were not filed in time to entitle them to share in the distribution of the insolvent estate among creditors, that fact did not destroy the lien they •operated for their payment, on the land for which they were given. The lands of a decedent on which valid subsisting liens are existing at his death, do not pass into [578] the administration of his estate, whether solvent or insolvent, for distribution or the payment of debts, unaffected by such liens, but subject to them. They may be enforced against the lands by the parties in whose favor they exist. The creditors of an insolvent estate, have no right or claim to the lands or the proceeds, of them, until such prior liens are. satisfied; and the administrator, when it is to the interest of the estate to do so, may discharge them himself, — for the purpose of reaching and utilizing the residuum, — in the course, of administration. — Patapsco G. Co. v. Ballard, Admr., 107 Ala. 110; McNeill v. McNeill, 36 Ala. 110; Calhoun v. Fletcher, 63 Ala. 574; Stovall v. Clay, 105 Ala. 105, 110. Accordingly, it has been repeatedly decided in this court, that a vendor’s lien for the payment of the purchase money of lands is preserved, though the statute of limitations has operated a bar to the recovery of the purchase money as a debt. — Ware v. Curry, 67 Ala. 274; Bizzell v. Nix, 60 Ala. 281; Flinn v. Barber, 61 Ala. 530; Shorter v. Frazier, 64 Ala. 74. In the last case cited, it was also held, that the demand for its enforcement is “not stale, within the sense of that term, as used in courts of equity, unless its enforcement is delayed for twenty years after the purchase money becomes due and payable. — Terrell v. Cunningham, 70 Ala. 100, 107. Nor can a failure of the vendor to present his lien notes to the administrator within the time required by the statute of non-claim, or to file them in the probate court within nine months after the declaration of insolvency of the. estate, cut off the lien and remedy for its enforcement. Such failures would only operate to bar the right of the vendor to participate in the distribution of the estate. — Mahone v. Haddock, 44 Ala. 92; Flinn v. Barber, 61 Ala. 530; Smith v. Gillman, 80 Ala. 296. 3. It is again insisted, that complainant did not use due diligence, in collecting the collateral note, and defendant was thereby damaged. A sufficient reply to this contention, is found in the fact, that if defendant was damaged by the neglect in this respect of the com [579] plainant, tlie defendant cannot recoup or set-off such damages, without showing that such damages have been sustained and ithe amount thereof. There was no evidence introduced by Mm from which it could be reasonably’ ascertained that complainant did not use ordinary diligence to collect, or that defendant suffered any damage from him in this respect; and none to show the amount thereof, if any. — McGee v. Slater, 50 Ala. 431; Sampson v. Fox, 109 Ala. 662. There is no room for the consideration of the question of laches on the part of complainant, on the facts here presented, for not having filed his bill at an earlier period than he did. From what has been said, i1> will appear that the demurrer to the bill was not well taken, and that the demurrer to the cross-bill of defendant was pi’operly sustained. The grounds of demurrer in each case, are sufficiently covered by the principles above announced, and except as noticed they are not insisted on. We have considered such of the errors assigned as have been insisted on in argument. Finding no error in the decree below, of which defendant can complain, let it be affirmed. Affirmed.