Sims v. National Commercial Bank

73 Ala. 248

• Court: Supreme Court of Alabama
• Decided: December 15, 1882
• Status: Published

Opinion

SOMERYILLE, J.

— The case is here on appeal from an interlocutory decree of the chancellor overruling a demurrer to the bill, which is tiled for tlie enforcement of a vendor’s lien for-the unpaid purchase-money due on a tract of land.

It has been decided by this court too often for further discussion, that no special agreement, or even specific intention is required to create a vendor’s lien.'- It arises by mere operation of law, as an incident of every contract for the sale of land, unless it has been waived, expressly or by implication. The demurrer of appellants erroneously assumed the contrary of this principle to be true.- — Carver v. Eads, 65 Ala. 190, and authorities on brief of appellee’s counsel.

It was not necessary to present the note for payment at the Mobile Savings Bank, in order to fix the liability of the maker, although it was made payable there. If the maker was there in readiness to meet his obligation, or had funds deposited there for this purpose, and he suffered loss by reason of the failure of the holder to make presentation at such place of payment, this would be matter of defense, which should properly be set up in the answer, and need not have been anticipated by negative allegations on the part of the complainants in their bill. Connerly v. Planters, etc., Insurance Co., 66 Ala. 432; Montgomery v. Elliott, 6 Ala. 701; Conn v. Gano, 13 Amer. Dec. 639; Weed v. Van Houten, 17 Amer. Dec. 468.

William D. Bizzell was a proper party defendant to the bill, being the husband of a material defendant who had become a sub-purchaser of the land on which the lien was claimed. ' Section 2892 of the Code, which provides that a married woman “must sue and be sued alone, when the suit relates to her separate estate,” applies only to actions at law, and is inapplicable to suits in equity. — Sawyers v. Baker, 72 Ala. 49.; Pitts v. Powledge, 56 Ala. 147. The rule in equity is to join all parties interested, whose rights, whether legal or equitable, will be affected by the decree df the court. — 2 Jones on Mortg. § 1396. The interest which the husband as trustee had in the rents and income of the land, which was presumably the wife’s statutory separate estate, made him a pi’oper party defendant in this suit. The demurrer based on this ground was very .clearly without any merit.

The demurrer was properly taken, however, on the ground of misjoinder as to Mrs. Virginia Sims, who was the wife of the grantor in the original deed of conveyance. She was not a proper party defendant, having no interest whatever in the suit. She did not sign this deed, and it is not claimed that her dower was affected by it. On the contrary, the averments of the bill expressly recognize her right to a contingent inchoate right of dower, which the complainant does not contest. In such cases the rule is well settled, that the wife should not be joined as a party defendant, she being entirely unconcerned as to what may be the result of the suit, which seeks only to enforce a vendor’s lien against the interest of the husband in the land. There is no effort to litigate, or condemn to sale the wife’s inchoate right of dower.- — 2 Jones’ Mortg. §. 1421; Brackett v. Baum, 50 N. Y. 8; Baker v. Scott, 62 Ill. 86; Moomey v. Maas, 22 Iowa, 380.

The decree of the chancellor must be reversed, and the cause remanded.