Terry v. Keaton , 58 Ala. 667 ( 1877 )

STONE, J.

1-2. In the case of Bankhead v. Owen, MSS., Ch. J. Beiokell entered so fully into the discussion of the nature and extent of the equitable doctrine of vendor’s lien, that we consider it unnecessary to repeat what he has so well said. It has its existence, and can be enforced only in equity. It is rarely the subject of express negotiation or contract, but is an incident which courts of equity recognize and enforce, as springing out of the contract of bargain and sale of lands, when attendant conditions do not repel the presumption of such incident. Its principle is, “that a person who has gotten the estate of another, ought not, in conscience, as between them, to be allowed to keep it, and not pay the full consideration money.”- — 2 Sto. Eq. Ju. § 1219. This doctrine applies to sales that are consummated by conveyance. When a mere obligation to convey is given, the title is retained as security. But when conveyance itself is executed, lien on the land for unpaid purchase-money is but an equitable presumption, which may be rebutted. — Foster v. Athenaeum, 3 Ala. 302; Conner v. Banks, 18 Ala. 42 : Day v. Priskett, 40 Ala. 624: Relfe v. Relfe, 34 Ala. 500; Bowers v. Taylor, 23 Ala. 255; Brooks v. Woods, 40 Ala. 538. See, also, Buford, v. McCormick, 57 Ala. 428.

3. It is pleaded in defense to this suit that in this case the vendor’s lien was waived. The testimony in support of this defense is that of Ashfield Johnson, Martha A. Keaton and Nicholas B. Keaton, and is entirely oral. We need not inquire whether such testimony would, in any case, be sufficient to repel the implication of lien. The testimony is wholly insufficient. The witnesses say, “it was not intended said notes should be a lien on the land.” This is, in substance, the sum of the evidence. It is wholly insufficient to prove a contract releasing the lien which the law implies. Parties may have supposed the notes would be paid, and may not have thought of the question of lien. The absence of an intention to create a lien, without more, does not prevent it from attaching. Courts pronounce on contracts of parties; not on their uncommunicated intentions, or thoughts not embodied in mutual agreements. — Sanford v. Howard, 29 Ala. 684.

4-5. It is contended, however, that the conveyance of the land was intended as advancement, and that the notes were never to be collected. We think the proof given on this subject falls within the rule, applicable alike to cases at law and in chancery, that oral testimony will not be allowed to vary the terms of a written contract, except in a proceeding, with appropriate averments, which has for its object the reformation of the writing. — Hogan v. Smith, 16 Ala. 600; Steamboat Belfast v. Boon, 41 Ala. 50; Clark v. Hart, 54 Ala. 490; s. c. 57 Ala. 390. Aside from this, we think the proof in this case fails to overturn the plain language of the notes, that they are contracts for the payment of money. — See, also, West v. Kelly, 19 Ala. 353; Walker v. Clay, 21 Ala. 797.

6. It is further contended that inasmuch as the lands which were sold and conveyed were the property of Mr. Johnson, and not of Mrs. Johnson, the intestate, the present suit can not be maintained by her administrator. Buford v. McCormick answers our phase of this objection. The other — namely, the right of Mr. Johnson to have the notes made payable to his wife, and thus vest their ownership in her, while void against his creditors at the time, if they exist and were complaining, is settled against the defendants by several decisions of this court. — See Jones v. Deyer, 16 Ala. 221; Williams v. Maull, 20 Ala. 721; Andrews v. Andrews, 28 Ala. 432; Pinkston v. McLemore, 31 Ala. 308; Cain v. Gimon, 36 Ala. 168.

7. There is a remark in the case of Gunnard v. Eslava, 20 Ala. 732, — not necessary to the decision — which asserts that a gift by husband to his wife, such as that shown in this record, vests in her only such title as he may resume at any time during his life. The authorities cited are Adams v. Brackett, 5 Metc. (Mass.) 280, and In re Grant, 2 Sto. 312. While they support another well recognized principle expressed in the same paragraph, they make no allusion whatever to the right of the husband to make such gift or settlement.

The decree of the chancellor is reversed, and this court, proceeding to render the decree which that court should have rendered, doth order and decree that the complainant is entitled to the relief prayed by his bill. It is referred to the register to take and state an account of the amount due complainant, with proper interest computed, and report the same to the next term of the Chancery Court. All other questions are reserved until the coming in of the report.