Crampton v. Prince , 83 Ala. 246 ( 1887 )

SOMERYIRRE, J.

— 1. The bill alleges, and the proof shows, that the land in controversy was negotiated for, and iii truth and fact purchased by the appellant, Mrs. Orampton, through the agency of her husband, who, in her name, and by her authority, executed the note described in the bill, which is claimed to constitute a vendor’s lien on the land. The legal title was conveyed by the owner, Mrs. Prince, to Luling, at the request of Mrs. Orampton, and for her convenience. There is nothing in the record to support the assertion, that Luling was the original purchaser from the complainant. Where an oral negotiation, is thus made by a purchaser of land, and by his request, or permission, the legal title is made to another person, the vendor’s lien for the unpaid purchase-money attaches, without any special agreement for its retention, and follows the land in the hands of the grantee, who is bound by this special equity affecting it as a charge, of which he may have notice. — Pylant v. Reeves, 53 Ala. 132; Moore v. Worthy, 56 Ala. 163; Sims v. National Com. Bank, 73 Ala. 248.

The vendor’s lien exists, therefore, unless it is shown to have been waived or abandoned by some act of the complainant ; and the burden of proving such waiver is cast on the defendants who assert it as a fact. — Owen v. Bankhead, 76 Ala. 143. No fact is shown by the record, indicating such intention on the complainant’s part. The dealings between Luling and Mrs. Orampton, whatever may have been their effect as between themselves, could not affect the rights of the complainant in this case, Luling himself setting up no priority of lien on the land — his mortgage debt having been satisfied.

2. The coverture of Mrs. Orampton, while it may have been a complete defense to an action against her at law on her note, was no answer to a suit in equity to enforce a vendor’s lien against the land sold by the complainant. It is as unconscionable for a married woman to. get the land of another, and keep it without paying the purchase-money, as for one sui juris to do the same thing. — Carver v. Eads, 65 Ala. 190; Pylant v. Reeves, 53 Ala. 132.

3. Under the facts of this case, the defendant had no right to abate the amount of the purchase-money on account of the alleged deficiency of the land described in the deed. This supposed deficiency arises from the fact, that the lot sold lacks about five feet of being as deep as stated in the deed from complainant to- Luling. The error, therefore, is one of estimated distances in measurement. The testimony shows very clearly, that the complainant owned and occupied what was known as “the Ingersoll property;” that no representations were made as to its area; that it was sold in gross, and not by the foot; and that the extra five feet claimed by the purchaser was no part of the property. The important fact is shown, moreover, that the lot in controversy was bounded on three sides by a brick wall, and on the remaining side by an iron fence, all of which was patent to ordinary observation, and known to the purchaser. The deed described it- as bounded on the east side by Conception street, and on the other three sides by other lots of land which are definitely described. The settled rule in the description of boundaries to land is, that monuments, whether natural objects or artificial marks, are allowed to dominate courses and distances given in deeds. — 1 Greenl. Ev. (14th Ed.) § 301, p. 392, n. 2. Eor this reason, abutting lands, when definitely described, control courses and distances, especially where they are not actually marked off, but are arrived at by estimation. — 3 Wash. Real Prop., 5th Ed., pp. 427-434; Younkin v. Cowan, 34 Penn. St. 198; White v. Williams, 48 N. Y. 344. The reason of the rule is that where there is a discrepancy between two descriptions, the one will be adopted as to which there is least liability of mistake, — Miller v. Cherry, 3 Jones Eq. 29. Rejecting the description which is most apt to be erroneous, the law regards it as a mere misdescription, and not as a warranty of the quantity of land intended to be conveyed. — Rogers v. Peebles, 72 Ala. 529; Wright v. Wright, 34 Ala. 190; 3 Wash. Real Prop. 430-431.

Under the foregoing principles, the demurrer to the bill was properly overruled by the Chancellor.

The other assignments of error do not reach the merits of the case, and need not be considered.

The decree rendered is free from error, and must be affirmed.