Beall v. Folmar

McCLELLAN, J. (l, 2) The original bill, and as it was several times amended, seeks the enforcement of a vendor’s lien upon two lots in Luverne. The purchase price of the lots was $7,500. A note therefor was given by the vendees on April 27, 1894. This note matured and was payable on the 1st day of November, 1894. The original bill was filed October 8, 1914; 28 days before the expiration of 20 years after the maturity of the note. It is settled in this jurisdiction that the equitable remedy to enforce a vendor’s lien is-not stale, is not barred by lapse of time until the expiration of 20 years after the purchase money became due and payable.—Shorter v. Frazer, 64 Ala. 74, 81; Ware v. Curry, 67 Ala. 274, 284; Hood v. Hammond, 128 Ala. 569, 578, 30 South. 540, 86 Am. St. Rep. 159. In Ware v. Curry, supra, it was declared that the rule stated was not rendered inapplicable or ineffectual because of the fact, or because of its absence, that the legal title to the land passed at the time the obligation to pay the purchase money was created. The cases of Tayloe v. Duggar, 66 Ala. 444, Phillips v. Adams, 78 Ala. 225, and Beard v. Ryan, 78 Ala. 37, are not opposed to the doctrine of the cases first cited. Both the Tayloe and the Beard Cases involved and turned, in one aspect, upon the question of adverse possession, as that condition was affected by the inquiry whether the claim was or could be hostile to the vendor. The Phillips Case invoked consideration of the rule of evidence establishing the conclusive presumption that payment of an obligation has been made if for 20 years there was no recognition by the obligor of his liability to pay.—Roach v. Cox, 160 Ala. 425, 49 South. 578, 135 Am. St. Rep. 107. (3) The allegation in the bill that the complainant is the owner of the note and the . debt, constituting the basis of the [599] vendor’s lien asserted, was and is sufficient, being the averment of an ultimate fact, and not a conclusion of law.—Sheffield Nat. Bank v. Corinth Bank & Trust Co., 196 Ala. 275, 72 South. 127. The decree appealed from is affirmed. Affirmed. Anderson, C. J., and Sayre and Gardner, JJ., concur.