Pylant v. Reeves , 53 Ala. 132 ( 1875 )

BRICKELL, C. J.

The lien of the vendor of real estate, for the purchase money, or any part thereof, which may remain unpaid, prevails against all persons but bona fide purchasers for a valuable consideration without notice. It attaches without any special agreement for its existence, whether a convc3rance has been made or not. It has its foundation in the broad principle of equity, that it is unconscientious, to allow one who gets the estate of another to keep it without paying the consideration. The purchaser holds the legal title, if it has been conveyed, chargeable with a lien for the purchase money in favor of the vendor, if it has not been conveyed it remains in the vendor, chargeable with a trust for its conveyance to the vendee, when he shall pay the purchase mone3r, and he is a trastee of the purchase money for the vendor.

The lands were purchased by the appellee Reeves, on his own credit, he executing his own note only for the purchase money, the greater part of which he subsequently paid. At his request the lands are conveyed to a trustee for the separate use, and as the separate estate of his wife. The wife and her trustee are mere volunteers — the voluntary donees of the husband, standing in his shoes, entitled only to his rights, and bound by every equity affecting him. As the land would have been indisputably bound for the purchase money, if the conveyance had been made directly to the husband, and he on a merely good consideration, had made the conveyance to a trustee for the use of the wife, it is equally bound under the conveyance the vendor made at the request of the husband. The trustee and wife are not less volunteers than if they claimed directly from the husbands deed.

No question as to the capacity of the wife to contract, or as to her separate estate, its character and liabilit3r, can arise against the vendor seeking to enforce his lien for the purchase money. It cannot become her separate estate, until the purchase money is paid. The vendor’s lien prevails with as much force against a married woman purchasing land, as against one fully sui juris. Pier disabilities may protect her, but they can never authorize her to take and hold the lands of another without paying for them. Chilton v Briaden, 2 Black. 458.

The chancellor erred in not overruling the demurrer to the bill, and the decree must be reversed and the cause remanded. The appellees C. C. Reeves and J. H. Turner will pay the costs of this appeal in this court, and in the chancery court.