Kelly v. Payne , 18 Ala. 371 ( 1850 )

DAR.GAN, O. J.

The vendor of land, who executes a bond to the vendee, with condition to make titles when the purchase money is paid, retains a lien on the land, which he may enforce for the payment of the purchase money. He holds the legal title to the land as a security for its payment, and all the incidents of a mortgage, so far as regards the lien, attach to such a contract. — Haley v. Bennett, 5 Port. 452; Conner v. Banks, at this Term, (ante p. 42,) and cases there cited.

If therefore the vendor should transfer the note given for the purchase money, either by endorsement or delivery merely, he will hold the legal title as a trustee for the payment of the note, (unless by the contract of transfer it was otherwise agreed,) and a court of equity would subjeet the land to the payment of the purchase money at the instance of the holder of the note; for the transfer of the note will be considered in a court of equity as a transfer of the security for its payment. — Duval’s Heirs v. McLosky, 1 Ala. 708; Foster v. The Athenæum, 3 ib. 302; Cullum v. Erwin, 4 ib. 452; Roper v. McCook, 7 ib. 318; Conner v. Banks, supra.

If the vendor endorse the note and afterwards takes it up, on the failure of the maker to pay at maturity, or if the note comes back into his possession as his own, then both the debt and the security for its payment are united again in the vendor, and he may enforce payment by subjecting the land to its satisfaction. White v. Storer et al., 10 Ala. 441; Roper v. McCook, 7 ib. 318.

These general rules, which are as well settled by decisions as they are in consonance with the principles of justice, clearly show that the complainant is entitled to subject the land to the payment of the note, given by Kelly to him for part of the purchase money. The transfer of the note by Payne did not affect the lien; he still held the legal title to the land to secure its payment. Nor can it be pretended that the recovery of judgment against Kelly by Boyd discharged the land from the payment of the purchase money.

But it is urged that the payment of the judgment by Payne operated as a satisfaction of it, and the debt being satisfied, the lein is discharged. This argument cannot be sustained. Payne endorsed the note, and after the judgment was rendered against Kelly, and execution had been issued and returned no property, he was immediately liable upon bis endorsement for the whole amount of the judgment, and a payment of it by him was clearly a payment growing out of his liability as endorser, and cannot be considered a satisfaction of the judgment, either at law, or in equity. The complainant, by paving- to Boyd the amount of the judgment, discharged his own liability as endorser of tbe note, and this entitles him to the equitable interest in tbe judgment, and Boyd, in whose name it was rendered, then held the legal title to it in trust for the complainant. As Payne was entitled in equity to the judgment, and held the legal title to the land as a security for its payment, be was entitled to file bis bill to subject tbe land to the satisfaction of the judgment, and the land is equally bound in equity for the cost, as for any other portion of the judgment.

But it is contended that the bill should have been dismissed, because it does not pray for particular, but only for general relief. The rule, however, is now too well established to be questioned, that the prayer for general relief is sufficient, and that the particular relief to which the party may be entitled may be prayed at the bar. — Story Eq. PI. § 41, and cases cited in note 1. True, if the party desires an injunction, or a ne exeat regno, he must pray specially for them, but a prayer for general relief alone will entitle the complainant to such a decree on the final bearing, as his ease warrants.

Let the deeree be affirmed.