Aderholt v. Henry , 87 Ala. 415 ( 1888 )

CLOPTON, J.

A court of equity, in charging land subject to an incumbrance, which has been successively sold and conveyed in parcels, with covenant of warranty, to different persons, pursues the inverse order of alienation. This general rule has been so repeatedly and uniformly affirmed, that, as has been said, it should be regarded res adjudicata. —Mobile M. D. & Mut. Ins. Co. v. Huder, 35 Ala. 713; Prickett v. Sibert, 75 Ala. 315. The application of the rule rests on the equitable principle, that an incumbrancer, having a paramount lien on the entire land, shall first exhaust that parcel, the sale of which will not prejudice abona fide purchaser of another parcel. In order to successfully invoke the protection of the rule, the alienees first in time must be bona fide purchasers, and the successive alienees have notice, actual or constructive, of the antecedent sale and conveyance. Want of notice of the common incumbrance is not requisite. If any are bona fide purchasers without notice, their right to hold the property discharged of the incumbrance is governed by different principles. Generally, the rule may be invoked whenever the alienee has a right, as against the common vendor, to have the parcel bought and paid for by him free from the incumbrance. Pacts and circumstances affecting and qualifying the rights and equities of the different purohasers, as between themselves, may materially modify the application of the rule; it will not be applied, if its application works injustice. With this general statement of the rule and its qualifications, we pass to a consideration of the equities of the parties.

A bill was filed by the tr ansí errees of a note given by J. W. Maddox for a part of the purchase-money of the land, which had been bought by him in October, 1872, to enforce a vendor’s lien. A final decree of sale was made in November, 1883. Maddox having died before the filing of the bill, his heirs and devisees were made defendants. He sold and conveyed, in his life-time, parcels of the land to different persons, and by his will devised a part of it to be sold for the payment of his debts, and other portions to some of his children. The alienations, first in the order of time, bear date May 25, 1876; on which day he conveyed, with covenant of warranty, by three separate conveyances, different parcels to John H. Burton, C. B. Maddox, and F. W. L. Maddox. It is satisfactorily shown by the evidence, that the first two conveyances were made on a valuable consideration; the last is a voluntary conveyance. As to Burton, the evidence discloses no fact or circumstance which impairs or displaces his right to a preference over the others. Being a bona fide purchaser, with a stipulation for a good and unincumbered title, he is unquestionably entitled to have the other portions of the land sold before his is resorted to. O. B. Maddox, though a purchaser for a valuable consideration, occupies an entirely different position, as will be hereafter shown.

The next point of consideration relates to the equities between appellee, Henry, and the devisees; to a clear understanding of which a statement of other facts is requisite. On the same day on which the conveyances above mentioned were made, J. W. Maddox made his will, and died a few days thereafter. By the will, power was conferred on the executrix to sell, for the payment of his debts, those parts of the land designated in the record as the “Mill tract,” and a half interest in three acres previously conveyed to O. B. Maddox, and also one acre on which the store-house stood. The executrix executed the power of sale December 22, 1876. At the sale, C. B. Maddox purchased the one acre, and the half interest in the three acres, the purchase-money for which he paid. C. B. Maddox and Prickett purchased the “Mill tract.” In consequence of their failure to pay the purchase-money, •the executrix filed a bill in September, 1879, to subject it to the payment thereof. On October 23, 1880, a decree was rendered ascertaining that Maddox and Prickett were indebted about the sum of $2,300, and ordering the land to be sold for its payment. It was sold by the register under the decree, January.3, 1881, and bought by Henry for $400.

The bill, on which the present decree of sale was made, was filed before the bill on which the decree was rendered under which Henry bought, and was pending at the time of his purchase. He necessarily had notice of the vendor’s lien, and purchased subject to it. There is evidence showing that the existence and amount of the vendor’s lien were considered and estimated by him in determining the price which he was willing to pay for the land. The rule, to pursue the inverse order of alienation, does not extend to a case, where a part of the land is sold subject to the paramount incumbrance. When a vendor sells a part of a tract, subject to a mortgage, which covers the entire tract, the vendor and purchaser stand on the same level, and must contribute in proportion to their respective interests. Successive purchasers of an equity of redemption, sold by the sheriff in parcels at different times, are not liable in the inverse order of alienation. Black, C. J., says: “Two purchasers at a sheriff’s sale, subject to a mortgage, which is a common incumbrance on the land of both, stand on a level. Neither of them has done or suffered any thing, which entitles him to a preference over the other. Equality is equity. They must pay the mortgage in proportion to the value of their respective lots.”

The contention of counsel, that the devisees are estopped by the decree under which Henry bought, on the ground that they were parties, can not be sustained. By the purchase, Henry acquired all the title and interest in and to the “Mill tract,” which they had as heirs and devisees, and they are estopped from asserting any right or title to that particular land. But, the question here is not a question of right or title to the land, but of the equities between successive purchasers and devisees of parcels of land covered by a common vendor’s lien, subject to which all of them took their respective interests. The devisees are affected by all the equities to which the devised parcels were subject in the hands of the testator, and Henry’s equity is the same as if he had purchased from the testator, subject to the vendor’s lien. If a mortgagor sells a part of the mortgaged lands, subject to tbe mortgage, tbe part which he retains, and tbe part sold, are ratably liable to tbe mortgage debt. Henry, baying purchased subject to tbe vendor’s lien, has no claim to a preference over tbe devisees. Tbe equities between tbem are equal, and equality of burden becomes equity. Tbeir several parcels are liable to contribute in proportion to tbeir respective values. In such case, tbe principle of contribution applies. Tbe same observations apply to E. W. Maddox’s part, be being a mere volunteer. — 2 Lead. . Cas. Eq. 304. “When tbe deeds to tbe successive grantees are not warranty, or equivalent thereto, but simply purport t<? convey tbe mortgagor’s title, right and interest in the parcels, tbe intention is clear, that tbe grantees respectively assume tbeir portions of tbe burden.” — 3 Pom. Eq. Jur. § 1225.

Tbe remaining question relates to tbe equities between C. B. Maddox and the other parties. Tbe interest of tbe testator in tbe “Mill tract” was specially charged with tbe payment of bis debts, and sold for that purpose. C. B. Maddox became tbe purchaser. Tbe payment of tbe purchase-money of tbe “Mill tract,” and its application to the debts, would have relieved tbe land of tbe vendor’s lien, and tbe devisees and Henry would have received tbeir parts or parcels free of incumbrance. C. B. Maddox owes now, on account of tlie purchase-money, more than enough to pay tlie amount of tbe decree of sale. Being aware that tbe “Mill tract” was specially charged and sold to pay tbe debts of tbe testator, hi§ purchase imposed an obligation to furnish tbe money for that purpose, and thus relieve tbe balance of tbe land. It is still bis legal and equitable duty to pay what be owes in exoneration of tbe other parcels. Says Mr. Pomeroy: “Although tbe deeds are warranties, so that tbe doctrine will otherwise apply, any particular grantee may, by bis subsequent omissions, or by bis subsequent dealings with other parties, disturb tbe order of tbe equities in bis own favor, and create equities in behalf of other owners, and even render bis own primarily liable as between all tbe grantees.” — 3 Pom. Eq. Jur. § 1225. It would be inequitable to allow him, by bis failure to pay tbe purchase-money for tbe “Mill tract”’ to throw tbe burden of tbe vendor’s lien on tbe other owners, and be himself relieved. Tbe other parties have a superior equity, and in adjusting tbe equities between tbem, tbe court should direct bis land to be first sold.

In determining the proportions which should be contributed by the parcels owned by Henry, E. W. Maddox and the devisees, the court will be governed by the rule settled in Mo. & Mar. Dock & Mut. Ins. Co. v. Huder, 35 Ala. 713.

Reversed and remanded.