Donegan's Adm'r v. Hentz , 70 Ala. 437 ( 1881 )

SOMEBYILLE, J.

The decree of the chancellor in this cause must be affirmed, on the authority of Walker, Ex'r, v. Struve, at the present term.

The principle is there settled, that, when a vendor makes a sale of land, and conveys the Utle to the vendee, by deed properly executed, the vendor’s lien for the unpaid purchase-money is presumptively abandoned and lost, in all cases where he accepts a distinct and separate security for the purchase-money; as, for example, a bond or note with surety or indorser, a mortgage on other property, or a collateral deposit of stock or other personal property. That such security will operate as a waiver of the lien, prima facie, liable, of course, to rebuttal by legal evidence, which is sufficient to overcome the presumption, was also decided by this court in Walker v. Carroll, 65 Ala. 61, and is fully sustained by the following authorities: 2 Wash. Real Prop., 3d ed. 90-91 [507-8] ; 1 Lead. Cases Eq. (H. & W.) 364-5; Lagow v. Bodolet, 12 Amer. Dec. 263, and note; 1 Jones on Mortg. § 205, and note 5; 4 Wait’s Act. & Def. 323; Foster v. Athenœum, 3 Ala. 302.

In this case, Scruggs made a conveyance of the title of the real estate in question to Hentz, his partner, and took personal security, in the form of a bill of exchange, with several indorsers, for the unpaid purchase-money. This was a waiver of the vendor’s lien in the absence of legal evidence to the contrary.

Of course, Donegan, as the assignee or indorser of this bill, can £tand in no better position than the original payee or vendor, Scruggs, occupied.—Coster’s Ex'r v. Bank of Georgia, 24 Ala. 37. It would avail nothing so far as concerns this point, that the appellant is a bona fide holder of the bills in question, for a valuable consideration, and in due course of trade. This fact might protect him against any defenses which would defeat the recovery by him, as against any party to such bills, of a personal judgment for their full amount. It would, in other words, only operate to exclude any defense or equity affecting the instrument itself. It could not re-attach a lien, which, as an incident of the debt, had been waived or abandoned by the transferror or indorser.—1 Brick. Dig. p. 276, § 345.

The decree of the chancellor is affirmed.

Brickell, C. J., not sitting.