Strange v. Keenan , 8 Ala. 816 ( 1845 )

ORMOND, J.

The general principle is undoubled, that a vendor of land, who does not take security for the purchase money, has a lien upon the land itself for its payment, which may be enforced either against the vendee, or a purchaser from him with notice, unless it can be inferred from the circumstances of the case, that credit was given exclusively to the person, and the land was not relied on as a fund to reimburse the vendor. In Macreth v. Simmons, 15 Vesey, 329, Lord Eldon held, that even where security was given, it “depended upon upon the circumstances of each case, whether the Court was to infer that the lien was intended to be reserved, or that credit was given, and exclusively given, to the person from whom the other security was taken.”

This question was fully considered by this Court, in Foster v. The Athenaeum, 3 Ala. Rep. 302, and there held, that the vendor of land has a lien in equity,for the unpaid purchase money, where he has not taken personal security for its payment, or a distinct collateral security, as a pledge or mortgage. In this case no security whatever was taken for the payment of the purchase money, and the defendant, Keenan, the second vendee, purchased with full knowledge of the fact. The only question therefore in the cause is, whether the rule applies to sales made by order of the Orphans’ Court.

By our statute law, the Judge of the Orphans’ Cour, upon the petition of the administrator, and for the causes assigned in the statute, may order a sale of the land of a deceased person, and is invested with a discretion to direct the land to be sold, either “for money, or on credit, as may be most just and equitable.” The object of the sale in this instance, being to make more equal distribution amongst the heirs, the Court directed the sale to he made on a credit, and did not require security to be taken for the payment of the purchase money. We can perceive no reason why sales of this description should not be subject to the law applicable to all sales of real estate. If the Judge of the Orphans’ Court, acting for the heirs, thinks proper to order a sale on credit, and does not require security to be given for the purchase money, the land must be considered as the primary fund for its payment.

- It was contended, that the statute contemplated that in these judicial sales by the Orphans’ Court, the title should pass to the purchaser, untramelled by this implied- lien. It is difficult to suppose, that in sales of this description, made without the consent of those interested, and in which infants are generally concerned, a right is taken away which is secured to adults acting 'for themselves ; such a construction of the law would be most unreasonable. The only security which the Judge of the Orphans’ Court is required to take in such cases, is, a bond from the administrator, with security for the faithful application of the money when collected, which it is obvious, would afford no security whatever, if the money could not be collected from the purchaser of the land. The same remark applies to the sureties of the administrator in his official bond;; they do not become responsible until the money comes to the hands of the administrator, or is lost by his negligence, and therefore could not have been contemplated as a security for the payment of the purchase money.

- It is further urged, that as the administratrix became herself the purchaser, in legal estimation the money is in her hands, subject to distribution, as was held by this Court in Childress v. Childress, [3 Ala. 752.] It is doubtless true, that the heirs might, if they thought proper, elect to consider the money as in her hands, as she cannot sue herself; but it is equally clear, they cannot be compelled to make such election, when, as in this case, the ad-ministratrix has not paid any part of the purchase money, and being insolvent, cannot be compelled to pay it. If the land had been retained by the administratrix, it can admit of no doubt, that the heirs by a decree in chancery, could have sold it for the payment of the purchase money, and the defendant, Keenan, having purchased with notice of all the facts, can-be in no better condition ; he is charged with notice of this trust, and took the title subject to it.

The concession that the heirs might elect to consider the purchase money paid, and after a decree in the Orphans’ Court against the administratrix, proceed against the sureties on her official bond, cannot avail the defendant, Keenan. He cannot insist, they should forego the enforcement of a clear right against him, because they have another means of reimbursement, from another source. For aught this Court can know, that would prove unavailing, as the sureties to the official bond of the admin-istratrix may not be able to respond. In every aspect in which we have been able to consider this case, we think that the heirs have a lien for the purchase money unpaid, upon the land in the hands of Keenan, he having purchased with notice that it was unpaid; it is therefore unnecessary to consider, whether he was a bona fide purchaser or not.

The defendants declined answering the bill, and the cause was heard on the bill, decree pro confesso, and proof. The cause was therefore ripe for a hearing, and we can perceive no reason whatever for remanding it, but must proceed to render such de-creeon the merits, as the Court below should have rendered. Let the decree of the Chancellor dismissing the bill be reversed, and a decree be here rendered, declaring, that the heirs have a lien on the land for the purchase money unpaid, and that the cause be remanded for a reference to the Master, to ascertain the amount of the purchase money still due.