Putnam v. Summerlin , 168 Ala. 390 ( 1910 )

SIMPSON, J.

The original bill in this case was filed by the appellee against the appellants to enforce a vendor’s lien on certain lands. A demurrer was interposed to the hill on the ground that the bill showed, on its face, that the consideration of the notes was both land and personal property, and that no vendor’s lien could he enforced against the land.

Without insisting on a decree on said demurrer, th,e complainant amended the bill, claiming an equitable mortgage on all of the property conveyed, both real and personal, based upon the expression in the deed, conveying the property, after describing the notes given for the same, to wit: “Each of said notes to be protected by a vendor’s lien as a part of the purchase price for the property hereinafter conveyed.” It .is contended by the appellants that the expression in the deed cannot operate as an equitable mortgage on the property, because the deed was not signed by the defendants, and there is no proof that there was an independent verbal agreement to .give a mortgage, also because section 4288 of the Code of 1907 provides that “a mortgage of personal property is not valid unless made in writing, and subscribed by the mortgagor.”

Referring first to the statute, it simply declares the law, with regard to personal property, which has always been the law’ in relation to real estate, yet courts of equity have always enforced equitable mortgages on lands, without any writing, subscribed by the mortgagor. We hold, then, that the statute does not affect the equitable doctrine of equitable mortgages, as to personal property.

This is not a case wherein it is sought tó show that the appellants had made a verbal mortgage on their lands and personal property, but a case in which the only title which they have to the lands is coupled with a condition that the lands and personal property are burdened with a lien for the purchase money, until the same is paid. The respondents could not accept the title and repudiate the conditions on which it is conveyed. The authorities are clear that the reservation in the conveyance of a lien creates an equitable mortgage. —29 Am. & Eng. Ency. Law, 779, 780, et seq., and notes; Hall et al. v. Mobile & M. Ry. Co., 58 Ala. 10, 22, et seq.

While it is true that, in the case just cited, the purchaser also gave a power of attorney authorizing the sale of the land, yet the decision is based on the equitable lien retained in the deed, and is amply sustained by citations from Jones on Mortgages and other authorities.

The doctrine of an equitable lien created by a reservation in the conveyance is clearly recognized in our case of Kyle v. Bellenger, 79 Ala. 516, 520, 521.

The law does not require that any particular form of words be used; it being sufficient if the deed shows a clear intention to reserve a lien.

The case of Williams v. Davis, 154 Ala. 422, 425, 45 South. 908, 909, is not in conflict with what has been said in the present case. In that case it was simply an effort to enforce a parol agreement to execute a mortgage, which never could have been done as to realty, and, since the adoption of the statute, cannot be done as to personal property. The court, in that case, specially alludes to the fact that, since the statute, a verbal agreement as to personal property stands upon the same footing as a verbal agreement as to realty.

The principle upon which, in cases like this, an equitable mortgage has been declared on lands, is not that there was a verbal contract for such mortgage, but because the vendee received his title to the land coupled with the provision for the lien, and it would be inequitable to allow him to hold under the conveyance and repudiate its conditions. The same principle applies to personal property, and the statute does not abrogate it.

There was no error in the overruling of the demurrer io the amended bill.

The decree of the court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and Sayre, JJ., concur. McClellan, J., dissents.