Ketchum v. Creagh , 53 Ala. 224 ( 1875 )

BRICKELL, C. J.

The bill was filed by the appellants, to enforce a lien for the purchase money on lands sold by them in their representative capacity, under a decree of the court of probate. The statutes authorizing such sales require that if the purchase money is payable in the future, the purchaser’shall give bonds or notes for it, with two sufficient sureties. R. C. §2228. Though such security is given, the title can not pass until the purchase money is paid — the fact of payment made known to the court, and a conveyance ordered. R. C. §§ 2096 and 2228. Until a conveyance is executed under a decree of the court of probate, the title remains in the heir, who may maintain ejectment against the purchaser, or any one entering under him. Lightfoot v. Lewis, 1 Ala. 475 ; Wallace v. Hall, 19 Ala. 367. As to the purchaser, the decree of sale is interlocutory, until a conveyance of title is decreed. The plain purpose of the statutes, is, that the title shall not pass until the purchase money is paid. It remains, capable of assertion, a security for the purchase money, independent of, and distinct from the personal security required of the purchaser. The personal security, is merely cumulative, in addition to the security afforded by the retention of the title. It may fail, or all legal or equitable remedy for its enforcement as a personal liability, may be barred, but the title, and the security its retention affords, will not be impaired thereby. The purchaser takes but an inchoate equity, ripening into a perfect equity on the payment of the purchase money. Having paid the purchase money, he may under the statute on application to the court of probate, obtain a conveyance, or, he may resort to a court of equity, to compel a divestiture of the title, which has descended to the heirs.

The purchaser having only an equity, if he assigns, or aliens, can transfer an equity only. The assignee, or alienee, taking a mere equity, purchases at his .peril, subordinate to the legal title, charged with full notice of it, and is burdenéd with every charge resting on his alienor or assignor. Shiras v. Craig, 7 Cranch. 34; Vatlier v. Hyde, 7 Pet. 271; Boone v. Chiles, 10 Pet. 211. It is well settled that a purchaser of a legal estate, who can not make out a title but by a deed, leading him to another fact, whether by description of the parties,.recital or otherwise, will be deemed cognizant thereof; for it is erassa negligentia, that he does not inquire after it. 2 Sugden on Ven. 778 ; Witter v. Dudley, 42 Ala. 616 ; Johnson v. Thweatt, 18 Ala. 741. On the same principle, the purchaser of an equity, cannot be heard to deny notice of the legal title. The state of his vendor’s title puts him on inquiry as to the legal title, and the extent to which the equity he acquires is burdened with it. He cannot claim any other or greater right than his vendor had — he must be content to stand in his shoes. The rule is, that a purchaser with notice is bound to the same extent, and in the same manner, as the person of whom he purchased. 2 Sug. on Ven. 749.

It is difficult under the facts of this case, to believe those claiming as alienees of the vendee, at the sale made by the appellants, had not full notice of the state of the title — of the fact, that the purchase money had not been fully paid. The fact was so easily ascertained — the want of pretence that the vendee asserted any other title, than that which he derived from his purchase of appellants — the absence of any evidence, or inquiry for evidence, that his purchase had been completed by the payment of the purchase money, seem to us inconceivable with any supposition that those claiming under him had not full knowledge of the state of his title, and did not rely on his removing the incumbrance created by the unpaid purchase money. If they were ignorant, their ignorance was gross negligence, and they must bear the consequences of it. They were not, as the chancellor seems to have supposed, entitled to any notice from the appellants of the fact that the purchase money was unpaid, and that for its payment a lien on the lands was claimed. The law charged them with as full notice of these facts, as any the appellants could have given them. Nor is it material that the appellants could by a diligent pursuit of legal remedies, have obtained satisfaction of the purchase money from their vendee. They were under no obligation to the alienees, or those claiming under the vendee, to pursue such remedies. They had a right to rely on the security the retention of the title afforded. As well might the vendee himself claim the title, because by the passiveness of his vendor, until the lapse of time barred all remedy at law for the recovery of the purchase money, as for his alienees, who stand in his shoes, to claim any priority over the vendor, because neglecting legal remedies, he chooses to rely on the lien the law gives him. The alienees if not acquiesing in this neglect to pursue legal remedies for the purchase money, could have paid it, and entitled themselves to such remedies, which they could have prosecuted with all the diligence allowed by law.

As a general rule, a defendant by answer can pray nothing but to be dismissed by the court. If he has any relief to pray, or discovery to seek, he must do so by a bill of his own. If it touches the same matter, as that embraced in the original bill, and is necessary to procure a complete determination of such matter, then a cross bill is his . remedy. Cummings v. Gill, 6 Ala. 562; Goodwyn v. McGehee, 15 Ala. 232; Gallagher v. Witherington, 29 Ala. 420. If John W. Creagh, as an heir at law, was entitled to a distributive share of the money sought to be recovered by the appellants, his alienees would be entitled to set off such share against the appellants. This relief could be obtained only on cross bill, and none has been filed. The clear preponderance of the evidence in the record, is, that he is not entitled to such share — that it was fully accounted for to him, when he made payment of the first note due for the purchase money of the lands.

The appellants are entitled to a lien on the lands for the entire balance due on the note of John AV. Creagh, described in the pleadings, and the chancellor erred in not so decreeing.

Cross assignments of error by some of the appellees, appear on file. They do not seem to have been filed in accordance with the rule, and we cannot consider them.

The decree is reversed, and the cause remanded, to be proceeded with in conformity to this opinion.