Craft v. Russell , 67 Ala. 9 ( 1880 )

SOMEEYILLE, J.

— -The decisions of this court have been uniform in holding, that the vendor of lands, in the absence of an agreement, express or implied, to the contrary, retains a lien on the lands sold and conveyed for the unpaid purchase-money, which shall prevail against any sub-vendee who purchases with notice of the original vendor’s equity. — Foster v. Atheneum, 3 Ala. 302; Buford v. McCormick, 57 Ala. 428. And when a bill is filed to enforce such lien, a plea put in by a defendant claiming to be a bona fide purchaser for value without notice, in order to be available as a protection against a prior equity or conveyance asserted by the complainant, must aver clearly, distinctly and without equivocation the following facts: (1) that he is the purchaser of the legal as distinguished from an equitable title; (2) that he purchased the same in good faith; (3) that he parted with value as a consideration therefor by paying money or other thing of value, assuming a liability or incurring an injury ; (4) that he had no notice, and knew no fact sufficient to put him on inquiry as to complainant’s equity, either at the time of his purchase, or at, or before the time he paid the purchase-money, or otherwise parted with such value. — Moore v. Clay, 7 Ala. 742; Johnson v. Toulmin, 18 Ala. 50; Ledbetter v. Walker, 31 Ala. 175; 2 Smith’s Leading Cases, (White and Tudor) 73, 74; Ware v. Curry, 67 Ala.; Thames v. Rembert’s Adm’r, 63 Ala. 561; Buford v. McCormick, 57 Ala. 428; Saffold v. Wade’s Ex’r, 51 Ala. 214; Hallet v. Collins, 10 How. (U. S.) 174; Nantz v. McPherson, (7 T. B. Monroe, 597); 18 Amer. Dec. 216; Jackson v. McChesney, (7 Cow. 360) 17 Amer. Dec. 520; Gilpin v. Davis, (2 Bibb, 416), 5 Amer. Dec. 622.

And while a mere mortgage or deed of trust taken as security for a pre-existing debt does not constitute the mortgagee a bona fide purchaser for value, yet the rule is different where the creditor takes a mortgage for a debt contemporaneously contracted, or extends the day of payment of an antecedent debt, or accepts an absolute conveyance in payment of such antecedent debt, for in the latter case the debt is extinguished and the relation of the parties is entirely changed.— Wells v. Morrow, 38 Ala. 125; Saffold v. Wade’s Ex’r, supra; Thames v. Rembert’s Adm’r, supra; Code (1876) §§ 2166-7. As to a partial payment made by the purchaser before notice, he is protected as having acquired an equity, pro tanto — Sewing Machine Co. v. Zeigler, 58 Ala. 222.

The answer of a defendant can be taken as evidence only so far as it is responsive to the allegations and interrogatories of the bill, but the denials of the answer must be positive, clear and distinct, and not evasive, uncertain or illusory. Mere matters of defense, which are averred in the answer, though in form responsive, cannot be taken as evidence, unless sustained by proper proof in the ordinary way. — Adam’s Eq. 363, (note); Dunn v. Dunn, 8 Ala. 784; fValker v. Miller, 11 Ala. 1067; Wakeman v. Grover, 4 Paige, 23.

The statements of Craft’s answer, made to the bill in this case are not, we think, sufficiently distinct and unequivocal, when tested by the foregoing cardinal principles. His allegations, furthermore, as to Elliott’s agreement to allow, as a credit on the purchase-money of the land, the cost of the conveyance, back taxes and other items specified, present matters of defense not responsive to the bill, and should have been proved otherwise than by Craft’s sworn answer. The evidence, therefore, fails to sustain these items, and they were properly disallowed.

The appellant further assigns as error, the overruling of his demurrer, which was based upon the suggestion that Tousmiere should, have been made a party to complainant’s bill. The rule of practice established in this court is, that where such a demurrer is interposed for want of proper parties defendant, and the answer shows that all interested parties are really, and in fact before the court, there is no good reason why complainant should be compelled to amend his bill, or that it should be dismissed ; the objection may be properly disregarded, and there is no error in proceeding to a final decree. — Chapman v. Hamilton, 19 Ala. 121, 125.

The decree of the Chancellor is affirmed.