Acree v. Stone

ANDERSON, J.- This bill was filed to enforce a vendor’s lien upon certain lands described in the bill of complaint. The bill avers that one W. H. Stone, complainant’s intestate, was the uncle of all the respondents, except W. J. T. Aeree who was the father of the others. That the said Stone on Sept. 9th, 1897, was- old and desired to make an advancement to his nieces and nephews, all of whom 'were minors at that time except W. O. Aeree, and executed to them a deed, which describes the land and recites the “consideration of love and affection and the sum of $600.00 cash in hand paid.” The bill avers that at the time the deed was made there was an agreement between his intestate and the father, and W. C. Aeree, the only adult grantee, to the effect that the land was worth $2,000.00, $1,400.00 of which was to go as an advancement and the-other $600.00 was to be paid to the grantor. That the $600.00 due is represented [159] by the several notes of W. J. T. and W. O. Aeree. It will be observed that the father is not one of the grantees in the deed, and that the notes are only signed by him and IV. O. Aeree, the adult grantee. : “The lien which equity, on principles of natural justice, creates a security for the purchase price of land sold and conveyed, is the subject of waiver, express, or implied from the acts of the parties. Generally, the lien will be regarded as Avaived, if the grantor accepts any distinct and independent security, the authorities vary in the application of the rule to particular facts; and it Avould be difficult to formulate a general definition, specific, and yet comprehensive enough to include' all acts AAdiich will operate to displace the lien. Ordinarily, this result is produced by the acceptance of the note or bond of a stranger, or of the grantee with personal security, or with a mortgage on other land, or a pledge of stock, or other personal property. There are cases, in AAdiich no one of several acts is, of itself, sufficient. In such cases, all the facts and circumstances should be considered, and if it appears that the vendor did not intend to look to the land, but to rely on a substituted independent security, or on the personal responsibility of the Aendee, the presumption is rebutted, and the retention of the lien repelled. — Walker v. Struve, 70 Ala. 167; Carroll v. Shapard, 78 Ala. 358; Stringfellow v. Ivie, 73 Ala. 214; Tedder v. Steele, 70 Ala. 349; Jackson v. Stanley, 87 Ala. 273. In the case at bar, judging from the averments of the bill, there Avas no Avaiver of the lien on the part of the grantor Stone, as it avers that the agreement of sale was made with the father, W. J. T. Aeree and W. O. Aeree and that their notes were taken for the amount the grantor Avas to get over and above Avhat he Avished to advance his nieces and nepheAVS. The notes having been executed by W. J. T. Aeree and W. C. Aeree, the lien Avas not lost by reason of the fact that the conveyance of the land Avas made to the children of the said W. J. T. Aeree. Whether the father acted in his own behalf or as agent for his children, the taking of his note instead of the grantees, would not, according to a more.just [160] and reasonable view, be interpreted into an intention to rely exclusively upon the personal credit of the father and W. C. Aeree, (one of the grantees,) as the makers of the notes, to the exclusion-of the vendor’s lien.- — Davis v. Smith, 88 Ala. 596; Crampton v. Prince, 83 Ala. 246; 3 Am. St. Rep. 718; Pylant v. Reeves, 53 Ala. 132; Carver v. Eads, 65 Ala. 190; Jackson v. Stanley, 87 Ala. 270. The legal title to the land being in the children, they ai e proper parties to the bill. 1 he decree of the chancellor overruling the motion, to dismiss and the demurrer is affirmed. Affirmed. McClellan, C. J., Tyson and Simpson, J.J., concurring.