Chapman v. Lee , 64 Ala. 483 ( 1879 )

STONE, J.

In Relfe v. Relfe, 34 Ala. 500, it was said: “The liens of a vendor and a mortgagee are alike — in the same sense, and to the same extent — incidents of the debt. They are alike transferred by an assignment of the debt, and neither can survive the extinguishment of it. And the vendor and mortgagee alike have independent remedies, by taking possession, and by proceeding in chancery for a sale to pay the debt. . . So far as the question of staleness, as well as most other questions, is concerned, the vendor of land stands precisely as a mortgagee. . . We must adopt the same principle in reference to a vendor’s bill to enforce his lien. If the vendee is regarded as holding under the vendor — if his possession is the possession of the vendor — it would be a violation of all precedent and principle to allow the acquisition of title by lapse of time. . . The law is well settled, that the only doctrine available to the mortgagor, who holds in subordination of the mortgage, is the presumption of payment after the lapse of twenty years.” — Driver v. Hudspeth, 16 Ala. 348. This doctrine, after much deliberation, was reaffirmed in Bizzell v. Nix, 60 Ala, 281; a case, like the present one, in which the sale was consummated by a deed, and the debt for the purchase-money had been long barred as a claim enforceable at law.

In Doe, ex dem. Duvall v. McLoskey, 1 Ala. 708, 744, it was said: “A mortgagee of land has three several remedies : 1st, an action upon the bond, or other evidence of indebtedness, intended to be secured ; 2d, an action to recover the possession ; and, 3d, a suit in equity, with a view to a foreclosure and sale. And he may prosecute all or either of these remedies at the same time, until he obtains satisfaction.” — See also, Kerr on Injunctions, 191. In support of the proposition, that the bar of a suit at law to recover the debt, is no defense to a suit in equity to enforce the lien, see Angelí on Limitations, § 73; Hopkins v. Cockerell, 2 Gratt. 88; Council v. Mayomensing, 2 Barr, 224; Belknap v. Gleason, 11 Conn. 160; Thayer v. Mason, 19 Pick. 535; Miller v. Helm, 2 Sm. & M. 687; Miller v. Trustees, 5 Ib. 651; Trotter v. Erwin, 27 Miss. 772; Elkins v. Edwards, 8 Ga. 325; Crain v. Paine, 4 Cushing, 483; Joy v. Adams, 26 Me. 330; Heyer v. Pruyn, 7 Paige, 465.

It will be seen that, under our decisions, a vendor of lands, in the pursuit of remedies he may employ to enforce the payment of unpaid purchase-money, sustains pretty much the same relation to his vendee, as a mortgagee of real estate sustains to the mortgagor. His rights and remedies are, also, akin to those of a mortgagee, in this, that a bar of the remedy at law on the debt, is not a bar to his equitable remedy to' enforce his lien. These two propositions are an answer to all that is urged in support of the decree of the chancellor. We hold that this is not a case in which the complainant can be compelled to elect between remedies, under Bule 113 of chancery practice; neither is the bill wanting in equity, because of the staleness of complainant’s demand.

The decree of the chancellor is reversed, and the cause remanded, with orders to reinstate this cause on the docket.

Brickell, C, J., not sitting.