Griggsby v. Hair , 25 Ala. 327 ( 1854 )

CHILTON, C. J. —

-The decree of the chancellor is clearly correct. The bill concedes that Hair has the -legal title to the land in controversy, and seeks to make him a trustee for the complainant, Griggsby, who insists that he is the equitable owner, having purchased it under a decree ordering a sale for the purchase money,' .whereas Hair only acquired the equitable rights of Evans, — an equity subordinate to that which exists in favor of the vendor by virtue of his lien for the purchase money. It is quite clear, however, upon an examination of the record, that the decree, under which Hair purchased, was rendered upon a demand which not only created a lien uppn, the land, being for a portion of the purchase money for the same, but a lien older, as between these parties, than that set up in the bill of G-riggsby. The notes upon which the decree of the Messrs. Kelly was predicated, appear to have been transferred by Bolling before the transfer to Keeland ; and the rule is settled, that where several notes are secured by mortgage, and they are assigned at different times, the assignment of each note is, pro tanto, an assignment of the security, and the liens of the several assignees are to be preferred, according to the priority of the assignments, without reference to the maturity of the notes. — Nelson & Hatch v. Dunn et al., 15 Ala. 501; Cullum v. Erwin, 4 ib. 452; 2 Story’s Equity Juris., § 1233, p. 600, n. 1, 3rd ed.; Hop. Ch. Rep. 569.

Liens for the purchase money are regarded in the nature of equitable mortgages, and we see no reason why the rule above referred to should not be applied to them. It is true, if a note is assigned without recourse by the vendor, it amounts to an abandonment of the lien on his part, and his assignee can work out no equity to subject the land through him. But whether or not the parties intended to abandon such lien, is a matter of fact to be gathered from the evidence, and the nature of the transaction. — Hall’s Ex’r v. Click, 5 Ala. 363.

It may safely be asserted, as a principle deducible from the decisions of this court, that where the vendor transfers a note, secured by a lien of this nature, either by endorsement or delivery, and binds himself for its payment to the assignee or transferree, the lien on the land, unless expressly waived, is retained, and passes as an incident to the note, and may be enforced by the assignee. The contrary doctrine, as intimated in the decisions of some of the courts, has been rejected as unsound by our predecessors. — See Roper v. McCook & Robertson, 7 Ala. 323, where Collier, 0. J., said, “ the reasoning on which they rest is by no means satisfactory, and they lead to consequences which should be avoided.”

It appears, however, that in the bill filed by the Messrs. Kelly it is averred, that Bolling transferred the notes without recourse; and under the decision of Hall v. Click, supra, the chancellor refused to make a decree to enforce the vendor s lien, but rested it upon the ground that the complainants had obtained a judgment, and exhausted their legal remedy, upon one of the notes, as against Evans and Arrington, and consequently had the right to lile a bill to subject the equitable1* interest of Evans, as well as the legal title of Bolling, to its satisfaction.

The averment, that the notes were assigned or transferred without recourse on Bolling, as we have said, was not correct, as is shown by the proof in the record now before us. It was evidently a mistake or inadvertence of the complainants or their solicitor ; but without stopping to notice the effect which the proceedings had upon that bill may have upon a subsequent suit to enforce a lien, should one be filed by the Kellys, it is sufiicient for the purpose of this decision, that the decree, coupled with the sale to Hair, passed all the title, both legal and equitable, which Bolling and Evans had in the land, to Hair. There was nothing, therefore, upon which the subsequent decree could .operate, and we agree with the chancellor, that so long as the decree under which Hair’s title was acquired remains unreversed, that title must remain unaffected by any subsequent decree rendered in a suit to which neither the Kellys, Bolling, nor Hair, were parties.

Let the decree be affirmed.