Smith v. Hiles-Carver Co. , 107 Ala. 272 ( 1894 )

McCLELLAN, J.

The plea of nul tiel corporation was not sworn to, and was therefore bad. Acts 1888-9, p. 57.

For the same reason the pleas which averred an unauthorized alteration of the note which is the foundation of the suit after its execution were properly adjudged insufficient; and the evidence taken in support of them is not to be regarded. Without verification the note sued on was not open to impeachment, for alleged material alteration, at law or in chancery. — Code, 2770; Bonner et al. v. Young, 68 Ala. 35 ; Hooper v. Strahan, 71 Ala. 75; Barclift v. Treece, 77 Ala. 528, 532; Lesser v. Schulze, 93 Ala. 338.

The original bill in this case sought to enforce the payment of a note upon the theory that the debt it evidenced was secured by a vendor’s lien on certain land, by a sale of said land. The facts were that the payee of the note sold to the maker a tract of land in Clay county on a credit, and took from him a note for the purchase money which was a vendor’s lien on that tract. Subsequently the purchaser exchanged this tract with a third person for a tract in Cleburne county, and in substitution for the debt due for the Clay county .land he gave to his original vendor the note on which this suit is founded. In this note is the following stipulation : “This is a land note, and the following described land is bound for the payment of this note, to-wit: ” The tract lying in Cleburne county for which the maker of tho note exchanged tho land, purchased from the payee with said third person. On these facto, and stating them, the bill was amended so as to allege that the noto, as the paper itself evidences, was executed and accepted by the parties with the understanding that the debt should bo a charge or lien on tho Cleburne land ; and its amended prayer is for the declaration of such charge as an equitable mortgage or lien and the sale of the said land to satisfy the same. This amendment made no new parties to the bill, nor struck any parties already before the court. It did not vary essentially, or at all indeed, tho rights of the parties nor the character of the relief sought. It was clearly not a departure from the case made by the original bill, and was properly allowed.— Moore v. Alvis, 54 Ala. 356 ; Hurt v. Clark, 54 Ala. 490 ; Connor and Wife v. Smith, 88 Ala. 300, 308.

The note itself shows that this debt was to be a charge on the land described in it, and that this was the understanding of the parties is further shown by oral testimony as to the circumstances of the transactions out of which the note issued. Upon these facts, there can be no question that the note constituted an equitable mortgage or lien on the land described in-it; — Newlin v. Mc-Afee, 64 Ala. 357 ; and the decree of the chancery court which enforces it as such must be affirmed.